Vinay Kumar Shrivastava, Ambikapur, Surguja V. Income Tax Officer, Ward-1, Ambikapur, Surguja

ITA 326/RPR/2024

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 4395 (ITAT-RAIPUR)
• Duration Of Justice: 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2024
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Next Hearing Date: 01-09-2024
• Assessment Year: 2015-2016
• Appeal Filed On: 14-07-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRIYANKA PATEL
• Keywords: Set aside; Opportunity of being heard
• Section: 143(3); 250; 54F

Judgement Text

आयकर अपीलीय अिधकरण, रायपुर Ɋायपीठ, रायपुर IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR ŵी रिवश सूद, Ɋाियक सद˟ एवं ŵी अŜण खोड़िपया, लेखा सद˟ के समƗ । BEFORE SHRI RAVISH SOOD, JM & SHRI ARUN KHODPIA, AM (ITA No. 326/RPR/2024) (Assessment Year: 2015-16) Vinay Kumar Shrivastava, D C Road, Ambikapur, 497001, Chhattisgarh V s ITO, Ward 1, Ambikapur, C.G. PAN: ADMPS7169M (अपीलाथŎ/Appellant) . . (ŮȑथŎ / Respondent) िनधाŊįरती की ओर से /Assessee by : None राजˢ की ओर से /Revenue by : Dr. Priyanka Patel, Sr. DR सुनवाई की तारीख/ Date of Hearing : 02.09.2024 घोषणा की तारीख/Date of Pronouncement : 05.09.2024 आदेश / O R D E R Per Arun Khodpia, AM: The captioned appeal is filed by the assessee against the order of Commissioner of Income Tax (Appeals), NFAC, Delhi, (in short “CIT(A)”), vide order dated 14.05.2024 u/s 250 of the Income Tax Act, 1961 (in short “The Act”), for the Assessment Year 2015-16, which in turn arises from the order of Income Tax Officer, Ward-1, Ambikapur, (in short “The AO”), u/s 143(3) of the Act, dated 30.12.2017. 2. The Grounds of appeal raised by the assessee are extracted as under: 2 ITA 326/RPR/2024 Vinay Kumar Shrivastava vs. ITO, Ward-1, Ambikapur 1. That under the facts & the law, the learned CIT (Appeals), NFAC, Delhi erred in passing the Order ex-parte without serving any Notice in physical form though the Appellant opted not to receive Notices / communication by Email. Prayed that ex-parte Order is unjustified, the addition of Rs. 76,25,495/- be deleted. 2. That under the facts & the law, the learned CIT (Appeals), NFAC, Delhi further erred in considering the sale of immovable property on the basis of AIR as on 13.01.2015 though the date of transfer is 29.03.2014 which is outside the present Assessment Year, therefore, the addition of Rs. 76,25,495/- is without jurisdiction and unjustified and be deleted. 3. That under facts & law, without prejudice to above, Capital Gain comes to NIL as per computation reproduced in Assessment Order, inter-alia, the Appellant purchased house property for which deduction u/s 54F has not been allowed by the Ld. Assessing Officer. Capital Gain be taken at NIL. 3. Briefly described, the assessee is a retired employee of United Insurance Company, and his source of income are pension, house property, income from other sources and income from agricultural activities. ITR for the year under consideration was filed on 30.03.2017 declaring total income of Rs, 5,19,330/-. Case of the assessee was subsequently selected for scrutiny assessment, which was assessed u/s 143(3) and culminated on 30.12.2017 with an addition on account of Long Term Capital Gain for Rs. 76,25,495/-. 4. Aggrieved by the addition made by Ld. AO, assessee preferred an appeal before the Ld CIT(A), wherein various notices for hearing were issue 3 ITA 326/RPR/2024 Vinay Kumar Shrivastava vs. ITO, Ward-1, Ambikapur to the assessee and send on his email [e-mail] & [e-mail] which remain unattended by the assessee. Ld. CIT(A), therefore, dismissed the assessee’s appeal with the observations that “appellant has failed to submit the written submissions or any documentary evidence in support of his claim, therefore, I deem it fit and necessary to consider the submissions embedded in the statement of facts for the purpose of adjudicating the appeal.” The appeal before Ld. CIT(A) was thereafter disposed of against the assessee in absence of information / evidence / explanation called from the assessee qua the date of transfer of the property which, as per assessee falls during the preceding AY 2014-15 (29.03.2014), but as per information gathered from AIR it was 13.01.2015 i.e., within AY 2015-16, the relevant year under consideration. Further, deduction u/s 54F was denied by the AO and confirmed by the Ld CIT(A) on two counts (i) Assessee did not disclosed details of Capital Gain in the return and as per decision of Hon’ble Apex court in the case of Goetz India Ltd. vs CIT (2006) 284 ITR 323 (SC), the AO is not authorised to allow claims which were not disclosed by the assessee in his ITR and, (ii) As per statement made by the appellant vide order sheet entry dated 30.12.2017, the assessee had two houses, thus the assessee is not eligible for deduction u/s 54F. 4 ITA 326/RPR/2024 Vinay Kumar Shrivastava vs. ITO, Ward-1, Ambikapur 5. Being dissatisfied with the aforesaid observations and decision of Ld. CIT(A), assessee challenged the order of Ld. CIT(A), carrying the matter before us in the present appeal. 6. At the outset, it is noticed that none appeared on behalf of the assessee, whereas the revenue is represented by Departmental Representative, Dr. Priyanka Patel, Sr. DR (in short “Ld. Sr. DR”). 7. Facts of the case were reiterated by Ld. Sr. DR and submitted that the assessee remains nonattentive / non-compliant before both the revenue authorities. The information sought qua the assessee’s eligibility to claim deduction u/s 54F, were not produced by the assessee. Also, as per the information gathered and available with the departmental authorities, assessee herein was not entitled for deduction u/s 54F, thus the addition of Rs. Rs. 76,25,495/- was rightly made by the Ld AO and sustained by the Ld. CIT(A). 8. We have considered the submissions of Ld SR. DR and perused the material available with us. Referring to the first ground of appeal of the assessee, wherein the allegation raised by the assessee is that the impugned order was passed by the Ld. CIT(A) on Ex-patre basis without serving any notice in physical form, though the appellant have opted not to receive 5 ITA 326/RPR/2024 Vinay Kumar Shrivastava vs. ITO, Ward-1, Ambikapur Notices/ Communications by email. In order of verify this fact, on perusal of form 35 filed by the assessee before the first appellate authority, it is observed that assessee had mentioned email ID [e-mail] and “No” in the column provided for such option to the assessee, relevant portion of Form 35 is extracted hereunder: FORM NO. 35 [See rule 45] Appeal to the Commissioner of Income-tax (Appeals), Bilaspur Personal Information First Name Vinay Middle Name Kumar Last Name or Name of Entity Shrivastava PAN ADMPS7169M TAN (if available) Flat/Door/Block No. 0 Name of Premises/ Buildings/ Village Road/ Street/ Post Office Area/ Locality D.C. Road Town/ City/ District Ambikapur, Surguja State CHHATISGARH Country India Pin Code 497001 Phone No. with STD code/ Mobile No. 9826180896 Email Address [e-mail] No 9. Being aware with the aforesaid fact, the issue is confronted to Ld. Sr. DR, upon which, she argued that the procedure in new faceless regime do not allow the Ld. CIT(A) to serve any communication though physical mode, the only mode available with them is to serve the communications on email, there for contention of the assessee to receive the same physically shall not be entertained. Though, on being queried regarding the justification of option provided to appellants to receive the communications though email or not, she was unable to respond with any plausible explanation. 6 ITA 326/RPR/2024 Vinay Kumar Shrivastava vs. ITO, Ward-1, Ambikapur 10. Under such facts and circumstances, we find that the assessee in present case, who had opted for “No” towards the communication by email, and such fact was not refuted by the revenue with any reasonable justification, also no material has been brought before us to establish that the notices were physically served on the assessee, we construe that the service of notice was not validly done on the assessee. In view of such observations, we are of the considered opinion that there was a violation of principle of natural justice, as the assessee was not validly put to notice to respond, when the opportunities were granted to him. We, therefor deem it appropriate to send the matter back to the file of Ld. CIT(A) for fresh adjudication of the same, which has fairly been admitted by Ld. Sr DR. Consequently, the issues/ grounds assailed by the assessee in the present case, without adverting to the merits of same are being restored back to the file of Ld. CIT(A) to adjudicate the same afresh, Needless to say, reasonable and fair opportunity of being heard and liberty to furnish necessary explanations / submissions/ evidence shall be provided to the assessee in the set aside appellate proceedings. 7 ITA 326/RPR/2024 Vinay Kumar Shrivastava vs. ITO, Ward-1, Ambikapur 11. In result the appeal of assessee, stands partly allowed for statistical purposes. Order pronounced in the open court on 05/09/2024. Sd/- (RAVISH SOOD) Sd/- (ARUN KHODPIA) Ɋाियक सद˟ / JUDICIAL MEMBER लेखा सद˟ / ACCOUNTANT MEMBER रायपुर/Raipur; िदनांक Dated 05/09/2024 Vaibhav Shrivastav आदेश की Ůितिलिप अŤेिषत/Copy of the Order forwarded to : आदेशानुसार/ BY ORDER, (Senior Private Secretory) आयकर अपीलीय अिधकरण, रायपुर/ITAT, Raipur 1. अपीलाथŎ / The Appellant- Vinay Kumar Shrivastav 2. ŮȑथŎ / The Respondent-ITO, Ward-1(1), Ambikapur 3. आयकर आयुƅ(अपील) / The CIT(A), 4. The Pr. CIT, Raipur (C.G.) 5. िवभागीय Ůितिनिध, आयकर अपीलीय अिधकरण, रायपुर/ DR, ITAT, Raipur 6. गाडŊ फाईल / Guard file. // स×याǒपत Ĥित True copy //