Manish Gupta, New Delhi V. DCIT, New Delhi

ITA 3265/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3724 (ITAT-DELHI)
• Duration Of Justice: 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 23-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAHUL GIRDHAR
• Keywords: Opportunity of being heard

Judgement Text

1 ITA NOS. 3264 & 3265/DEL/2017 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEM BER ITA NO. 3264/DEL/201 7 ( A.Y 2012-13) SANISH GUPTA 30/72, PUNJABI BAGH WEST NEW DELHI AHSPG2681A (APPELLANT) VS DCIT CIRCLE 13(1) NEW DELHI (RESPONDENT) ITA NO. 3265/DEL/2017 ( A.Y 2012-13) MANISH GUPTA 30/72, PUNJABI BAGH WEST NEW DELHI AHQPG7427G (APPELLANT) VS DCIT CIRCLE 13(1) NEW DELHI (RESPONDENT) APPELLANT BY SH. RAHUL GIRDHAR, CA RESPONDENT BY SH. AMIT JAIN, SR DR ORDER PER R. K. PANDA , AM THESE TWO APPEALS FILED BY THE RESPECTIVE ASSESSEES ARE DIRECTED AGAINST THE SEPARATE ORDERS DATED 20 TH MARCH, 2017 AND 3 RD JANUARY 2017 RESPECTIVELY OF THE CIT(A)-5, NEW DELHI RELATING TO ASSESSMENT Y EAR 2012-13. SINCE IDENTICAL GROUNDS HAVE BEEN TAKEN BY THE RESPECTIVE ASSESSEES IN BOTH THE APPEALS, THEREFORE, THESE APPEALS WERE HEARD TOGETH ER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. DATE OF HEARING 23.10.2017 DATE OF PRONOUNCEMENT 23.10.2017 2 ITA NOS. 3264 & 3265/DEL/2017 THE GROUNDS OF APPEAL ARE AS UNDER:- ITA NO. 3264/DEL/2017 1. ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LEA RNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW IN UPHOLD ING THE DISALLOWANCE OF THE CLAIM OF COST OF CONSTRUCTION A MOUNTING TO RS.2424454/- (BEING 20% OF THE TOTAL COST OF CONSTR UCTION) WHILE COMPUTING THE CAPITAL GAIN. 2. ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW IN UPHOLD ING THE PART DISALLOWANCE OF THE CLAIM COST OF IMPROVEMENT AMOUN TING TO RS.202508/- (BEING 20% OF THE TOTAL COST OF CONSTRU CTION) WHILE COMPUTING THE CAPITAL GAIN. IDENTICAL GROUNDS HAVE BEEN TAKEN ITA NO. 3265/DEL/ 2017 1. ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LEA RNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW IN UPHOLD ING THE DISALLOWANCE OF THE CLAIM OF COST OF CONSTRUCTION A MOUNTING TO RS.2424454/- (BEING 20% OF THE TOTAL COST OF CONSTR UCTION) WHILE COMPUTING THE CAPITAL GAIN. 2. ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW IN UPHOLD ING THE PART DISALLOWANCE OF THE CLAIM COST OF IMPROVEMENT AMOUN TING TO RS.202508/- (BEING 20% OF THE TOTAL COST OF CONSTRU CTION) WHILE COMPUTING THE CAPITAL GAIN. 3. AT THE TIME OF HEARING, IT WAS SEEN THAT BOTH TH E APPEALS HAVE BEEN DECIDED EX-PARTE BY THE LD. CIT(A). DUE TO NON APP EARANCE BY THE RESPECTIVE ASSESSEES. THE LEARNED COUNSEL FOR THE ASSESSEE SU BMITTED THAT THE COUNSEL WHO WAS APPOINTED TO LOOK AFTER THE APPEAL MATTERS DID NOT APPEAR BEFORE THE CIT(A) NOR INTIMATED THE ASSESSEE ABOUT THE NOTICE OF HEARING. HE SUBMITTED THAT ALTHOUGH ASSESSEE HAS NOT TAKEN ANY ACTION AGA INST THE CONCERNED COUNSEL BY REFERRING THE MATTER TO THE DISCIPLINARY COMMITT EE OF THE ICAI, HOWEVER, HIS PAYMENT HAS BEEN STOPPED. HE SUBMITTED THAT IN THE INTEREST OF JUSTICE THE RESPECTIVE ASSESSEES SHOULD BE GIVEN AN OPPORTUNITY TO SUBSTANTIATE THEIR CASE. 4. THE LD. DR, ON THE OTHER HAND, STRONGLY OPPOSED THE ARGUMENTS ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE. HE S UBMITTED THAT THE LD.CIT(A) 3 ITA NOS. 3264 & 3265/DEL/2017 HAS PASSED DETAILED ORDERS WHILE SUSTAINING THE ADD ITION MADE BY THE A.O. THEREFORE, THE ORDER OF THE LD.CIT(A) SHOULD BE UPH ELD AND THE GROUNDS RAISED BY THE ASSESSEES SHOULD BE DISMISSED. 5. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS AN ADMITTED FACT THAT DUE TO NON-APPEARANCE BY THE RESPECTIVE ASSESSEES BEFORE T HE CIT(A), HE HAS DECIDED THE APPEAL EX-PARTE AND SUSTAINED THE ADDITION MADE BY THE A.O BY PASSING DETAILED ORDER. IT IS THE SUBMISSION OF THE LD. CO UNSEL FOR THE ASSESSEE THAT GIVEN AN OPPORTUNITY THE ASSESSEES ARE IN A POSITIO N TO SUBSTANTIATE THEIR CASES. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE A ND IN THE INTEREST OF JUSTICE I DEEM IT PROPER TO RESTORE BOTH THE APPEALS TO THE F ILE OF THE CIT(A) FOR DECIDING THE ISSUE AFRESH AND IN ACCORDANCE WITH LAW AFTER G IVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE RESPECTIVE ASSESS EES ARE ALSO HEREBY DIRECTED TO APPEAR BEFORE THE LD.CIT(A) AND NOT SEEK ANY AD JOURNMENT UNDER ANY PRETEXT. THE APPEALS FILED BY THE RESPECTIVE ASSES SEES ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSE. PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF, I.E. ON 23 RD OCTOBER , 2017. SD/- (R. K. PANDA ) ACCOUNTANT MEMBER DATED: 23/10/2017 R. NAHEED * 4 ITA NOS. 3264 & 3265/DEL/2017 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE 1. DRAFT DICTATED ON 23/10/2017 PS 2. DRAFT PLACED BEFORE AUTHOR 23/10/2017 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER .2017 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 24.10. 2017 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 5 ITA NOS. 3264 & 3265/DEL/2017 2 4 .10.2017 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.