Sushil Kumar, Ghaziabad V. ITO, Ward- 2(3), Ghaziabad

ITA 3668/DEL/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6747 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 15-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA NEB
• Assessee Lawyers: S K GOYAL
• Keywords: Capital asset; Cost of acquisition; Set aside
• Section: 2(14); 201; 147; 148; 144

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH FRIDAY : NEW DELHI BEFORE SHRI H.S.SIDHU , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 3667/DEL/2018 (ASSESSMENT YEAR: 2008 - 09 ) SURESH KUMAR, NOOR NAGAR, GHAZIABAD PAN: BBIPK4713N VS. ITO, WARD - 2(3), NEW DELHI (APPELLANT) (RESPONDENT) ITA NO. 3668/DEL/2018 (ASSESSMENT YEAR: 2008 - 09 ) SUSHIL KUMAR, NOOR NAGAR, GHAZIABAD PAN: BBIPK4713N VS. ITO, WARD - 2(3), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S. K. GOYAL, ADV REVENUE BY: MS. ASHIMA NEB, SR. DR DATE OF HEARING 20/09 / 201 9 DATE OF PRONOUNCEMENT 1 5 / 10 / 2019 O R D E R PER PRASHANT MAHARISHI , A. M. 1 . THESE ARE 2 APPLICATIONS FILED BY THE ASSESSEE REQUESTING FOR EARLY HEARING OF THE APPEAL IN ITA NOS. 3668/DEL/2018 AND 3667/DEL/2018. THE MAIN REASONS FOR SEEKING THE EARLY HEARING OF THESE APPEALS WERE THAT THE ORDERS PASSED BY THE LD ASSESSING OFFICER U/S 147 READ WITH SECTION 144 OF THE INCOME TAX ACT ON 30/3/2015 , WHEREIN , THE INCOME OF THE ASSESSEE FROM LONG - TERM CAPITAL GAIN OF RS. 79594351/ - IS ASSESSED. ON APPEAL BEFORE THE LEARNED CIT (A), GHAZIABAD , EX PARTE ORDER WAS PASSED ON 23/11/2016 AND TH E ORDER OF THE LD ASSESSING OFFICER WAS CONFIRMED. THEREFORE , THESE TWO APPEALS IN CASE OF THESE TWO ASSESSEES WITH IDENTICAL FACTS WAS FILED BEFORE THE COORDINATE BENCH. PAGE | 2 2 . THUS , IT WAS SUBMITTED THAT THE BEFORE THE ASSESSING OFFICER ASSESSEE COULD NOT REM AIN PRESENT BECAUSE HE WAS UNEDUCATED AND UNAWARE ABOUT THE PROCEDURE AND ABOUT THE NOTICE ISSUED TO ITS AUTHORISED REPRESENTATIVE WHO DID NOT TAKE CARE OF THE ISSUE. FOR NON APPEARANCE, BEFORE THE LEARNED CIT (A) ASSESSEE ALSO GIVING THE REASON THAT SINCE THE REPRESENTATIVE TO WHOM THE ASSESSEE GAVE THE AUTHORITY DID NOT FURNISH REQUISITE DETAILS AND THEREFORE THE EX - PARTE ORDER WAS PASSED BY THE LEARNED CIT (A) . THEREFORE , IT IS PRAYED THAT EARLY HEARING IN THE ABOVE CASE S MAY BE GRANTED. 3 . AT THE REQUEST OF BOTH THE PARTIES WE LOOKED AT TH E ISSUE INVOLVED IN THIS APPEAL, THE MAIN ISSUE OF THIS APPEAL IS THAT THE LEARNED ASSESSING OFFICER AS WELL AS THE LEARNED CIT (A) HAS PASSED THE ORDER S EX - PARTE. THE ONLY REQUEST OF BOTH THE PARTIES WAS THAT THAT MATTE R SHOULD GO BACK TO THE FILE OF THE LOWER AUTHORITIES. 4 . ON LOOKING AT THE ORDERS PASSED BY THE LOWER AUTHORITIES IT WAS FOUND THAT THESE APPEALS CAN BE DISPOSED OF AT TH IS STAGE OF CONSIDERATION OF REQUEST OF THE ASSESSEE FOR EARLY HEARING OF THE APPEAL. 5 . BOTH THE PARTIES AGREED TO THE ABOVE PROPOSAL AND THEREFORE WE TAKE UP THE ISSUE OF DECIDING THESE APPEALS AT THIS MOMENT. 6 . THE BRIEF FACTS OF THE CASE SHOWS THAT IN BOTH THE ASSESSEE THE NOTICES U/S 148 OF THE INCOME TAX WERE ISSUED ON 2/9/2014 RELATING TO ESCAPEMENT OF INCOME. THESE NOTICES WERE SERVED ON THE ASSESSEE ON 5/9/2014. THE ASSESSEE DID NOT COMPLY WITH THOSE NOTICES AND DID NOT FILE ANY RETURN OF INCOME. FURTHER , NOTICES ISSUED U/S 14 2 (1) ISSUED ON 0 6/ 0 2/2015 WAS ALSO NOT COMPLIED. THE ASSESS EE FURTHER DID NOT COMPLY WITH THE NOTICES ISSUED ON 16/2/2015 AND 25//2015. THEREFORE A FINAL SHOW CAUSE NOTICE WAS ISSUED BY THE ASSESSING OFFICER ON 5/3/2015. THIS NOTICE WAS ALSO NOT COMPLIED BY THE ASSESSEE , THEREFORE , THE LEARNED ASSESSING OFFICER D ID NOT HAVE ANY OP TION BUT TO MAKE AN ASSESSMENT U/S 144 READ WITH SECTION 147 OF THE INCOME TAX ACT . THE LEARNED ASSESSING OFFICER PASSED THE ORDER NOTING THAT ASSESSEE HAS SOLD HIS 1 / 6 TH RIGHT POSSESSED AS CO - OWNER WITH OTHERS IN A LAND SITUATED WITHIN T HE NOTIFIED AREA AND F ALLS IN THE DEFINITION OF THE CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) OF THE PAGE | 3 INCOME TAX ACT . THE CONSIDERATION OF THE LAND SOLD WAS RS. 48 , 04 , 33 , 200/ AND THE COST OF ACQUISITION AS ON 0 1/ 0 4/1981 WAS ADOPTED AT RS. 842,000 / - PER SQUARE METER AS SHOWN BY SOME OTHER ASSESSEE IN THE NEARBY VICINITY. THUS CAPITAL GAIN WAS COMPUTED AT RS. 79594351/ IN THE HANDS OF THE ASSESSEE IS 1 / 6 TH SHARE. THIS INCOME WAS ASSESSED IN THE HANDS OF THE ASSESSEE. 7 . AGGRIEVED WITH THE O RDER OF THE LEARNED ASSESSING OFFICER THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LEARNED CIT (A) . THE LEARNED CIT (A) DISPOSED OF THE APPEAL ON 23/11/2016 WHEREIN HE GAVE NINE OPPORTUNIT IES OF HEARING TO THE ASSESSEE AND ON EACH OF THE OCCASION, EITHER THE APPLICATIONS WERE FILED FOR ADJOURNMENT OR NO COMPLIANCE WAS MADE. THEREFORE THE LEARNED CIT (A) PASSED THE ORDER DISMISSING THE APPEAL FOR NON - PROSECUTION. IT WAS FURTHER HELD THAT ASSESSING OFFICER HAD JUDICIALLY TREATED THE TAXABILITY OF CAPITAL GAIN ARISING ON SALE OF LAND. IT WAS FURTHER HELD THAT SINCE THE APPELLANT HAS NEVER CLAIMED DEDUCTION U/S 54B/54F IN THE RETURN OF INCOME AND THEREFORE NO SUCH CLAIM IS MAINTAINABLE. THEREFORE, HE CONFIRMED THE ACTION OF THE LEARNED ASSESSING OFFICER. 8 . ASSES SEE AGGRIEVED WITH THE ORDER OF THE LEARNED CIT (A) HAS PREFERRED THIS APPEAL. 9 . BEFORE PROCEEDING WITH THESE APPEALS, IT IS NECESSARY TO TAKE NOTE THE CONDUCT OF THE ASSESSEE OF NON - COMPLIANCE BEFORE THE LOWER AUTHORITIES. THE LEARNED ASSESSING OFFICER H AS ISSUED SEVERAL NOTICES HOWEVER NONE OF THEM WERE COMPLIED. THE LEARNED CIT(A) HAS ALSO ISSUED AT LEAST NOTICES ON 9 OCCASIONS , HOWEVER , NONE OF THEM WERE COMPLIED EFFECTIVELY BY THE ASSESSEE. THEREFORE , THE ASSESSEE HAS PUT EXTRAORDINARY COST BECAUSE O F HIS CONDUCT ON THE EXCHEQUER , THEREFORE, WE DIRECT THE ASSESSEE TO DEPOSIT RS. 50,000 / - EACH TO THE PRIME MINISTERS NATIONAL RELIEF FUND BEFORE FILING ANY DETAILS BEFORE THE LEARNED CIT (A) . 10 . IN FACT THE LEARNED CIT (A) HAS DISMISSED THE APPEALS OF THE ASSESSEE ON THE ACCOUNT OF NON - PROSECUTION AND HAS NOT GIVEN ANY CATEGORICAL FINDING ON THE MERITS OF THE ISSUE. IN FACT THE LEARNED CIT (A) SHOULD HAVE DISPOSED OF THE CASE OF THE ASSESSEE DISCUSSING THE MERITS OF THE APP EAL ON EACH OF THE GROUNDS RAISED BY THE ASSESSEE. IN VIEW OF THIS THE MATTER PAGE | 4 DESERVES TO BE SET ASIDE TO THE FILE OF THE LEARNED CIT (A) , SUBJECT TO DEPOSIT OF RS. 50,000 / - EACH TO THE PRIME MINISTERS NATIONAL RELIEF FUND, WITH A DIRECTION TO THE ASSESS EE TO SUBMIT NECESSARY DETAILS BEFORE HIM ON OR BEFORE 15/11/2019 AND THEN THE LEARNED CIT (A) GRANT THE DATE OF HEARING TO THE ASSESSEE AND DECIDE THE ISSUE ON THE MERITS OF THE CASE. 11 . IN VIEW OF THE ABOVE FACTS BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 1 5 / 10 / 2019 . - SD/ - - SD/ - ( H.S.SIDHU ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 5 / 10 / 2019 A K KEOT COPY FORWARDED TO 1 . APPLICANT 2 . RESPONDENT 3 . CIT 4 . CIT (A) 5 . DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI