Shri Kirit Jayantibhai Kapadiya, Rajkot V. The Income Tax Officer, Ward-1(2)(3), Rajkot

ITA 376/RJT/2018

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 9881 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 11-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 132; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT Before: Shri Waseem Ahmed, Accountant Member And Shri Siddhartha Nautiyal, Judicial Member Shri Kirit Jayantibhai Kapadia, Amarnagar Road, Nr. Vivekanand School, Jasdan, Rajkot PAN: BCDPK4791A (Appellant) Vs The ITO, Ward-1(2)(3), Rajkot (Respondent) As sess ee b y: Shr i D eep ak Ri n da ni , A .R. Re ve n ue b y: Shr i B .D . Gu pta , Sr. D . R. Date of hearing : 29-06-2022 Date of pronouncement : 06-07-2022 आदेश/ORDER PER BENCH:- This assessee’s appeal for A.Y. 2011-12, arises from order of the CIT(A)-6, Ahmedabad dated 23-08-2018, in Appeal No. CIT(A)-6/236/17- 18, in proceedings under section 143(3) r.w.s. 147 of the Income Tax Act, 1961; in short “the Act”. ITA No. 376 /Rjt/2018 Assessment Year 2011-12 I.T.A No. 376/Rjt/2018 A.Y. 2011-12 Page No Shri Kirit Jayantibhai Kapadiya Vs. ITO 2 2. The assessee has taken the following grounds of appeal:- “1. The Learned commissioner of lncome-tax - 6, Ahmedabad erred in passing an ex parte order by holding that the appellant was not interested in pursuing the appeal. 2. On merits, the Learned commissioner of lncome-tax - 6, Ahmedabad erred in confirming the addition of Rs. 25,25,000/- being alleged difference between long term capital gain on sale of property calculated by the assessing officer and as shown by the appellant in the return of income. The appellant craves leave to add, amend, alter and withdraw any ground of appeal anytime up to the hearing of this appeal.” 3. The brief facts of the case are that the assessee along with 4 other co- owners sold immovable property for a consideration of ₹ 4 lakhs in which the share of the assessee was 25%, being agricultural land. During the course of search under section 132 of the Act at the premises of the Vadaliya Group on 25-02-2011, certain disclosures were made according to which the assessee had sold his 25% share of land for a consideration of ₹ 26,25,000/- as against ₹ 1 lakh disclosed by the assessee. Accordingly, the difference of ₹ 25,25,000/- was added to the income of the assessee as long-term capital gains (LTCG) by the assessing officer. In appeal, Ld. CIT(Appeals) passed ex-parte order since the assessee did not appear despite issuance of notices to the assessee and dismissed the assessee’s appeal, with the following observations: I.T.A No. 376/Rjt/2018 A.Y. 2011-12 Page No Shri Kirit Jayantibhai Kapadiya Vs. ITO 3 “4.8 In view of the facts and legal position discussed above, it is presumed that appellant is not interested in pursuing the appeal and is not having any documents, explanation and evidence in support of grounds of appeals raised and thus has not discharged the onus to prove the genuineness of the transactions/additions made by the AO.” 4. Before us, the counsel for the assessee pointed out that insufficient opportunity was granted by the Ld. CIT(Appeals) in the appellate proceedings, who vide non-speaking order dismissed the assessee’s appeal summarily, without discussing the case on merits. The Ld. CIT(Appeals) gave a very short period of notice for the date of hearing and thereby the assessee did not get adequate opportunity to present his case. In response, the Ld. DR placed reliance on the order of the Ld. CIT(Appeals). 5. We have heard the rival contentions and perused the material on record. In the case of PremkumarArjundas Luthra (HUF)[2016] 69 taxmann.com 407 (Bombay), the Mumbai High Court has held that Commissioner(Appeals) is required to apply his mind to all issues which arise from impugned order before him whether or not same had been raised by appellant before him. Further, law does not empower Commissioner (Appeals) to dismiss appeal for non-prosecution (non-appearance). The Delhi Tribunal in the case of Ms. Swati Pawa[2019] 103 taxmann.com 300 (Delhi - Trib.) has held that in terms of section 250, Commissioner (Appeals) is not empowered to dismiss appeal for non-prosecution and is obliged to dispose of appeal on merits by passing a speaking order. The Delhi Tribunal in the case of Pawan Kumar Singhal [2019] 108 taxmann.com 548 (Delhi - Trib.) has held that Commissioner (Appeals) I.T.A No. 376/Rjt/2018 A.Y. 2011-12 Page No Shri Kirit Jayantibhai Kapadiya Vs. ITO 4 cannot dismiss assessee's appeal in limine for non-prosecution without deciding same on merits through an order in writing, stating points of determination in appeal, decision thereon and reason for decision. In the present case, we note that the Ld. CIT(Appeals) passed a non-speaking order and dismissed the appeal of the assessee summarily without discussing the merits of the case and the issues for consideration and the grounds of appeal raised by the assessee. Further, we note that adequate opportunity was not given to the assessee to present his case in merits. Therefore, in the interests of justice, we are restoring the file to the Ld. CIT(Appeals) to decide the appeal afresh, after giving due opportunity of hearing to the assessee to present his case on merits. Accordingly, the case is being set aside to the file of Ld. CIT(Appeals) with the above directions. 6. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 06-07-2022 Sd/- Sd/- (WASEEM AHMED) (SIDHHARTHA NAUTIYAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Rajkot : Dated 06/07/2022 आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. I.T.A No. 376/Rjt/2018 A.Y. 2011-12 Page No Shri Kirit Jayantibhai Kapadiya Vs. ITO 5 By order, Assistant Registrar, Income Tax Appellate Tribunal, Rajkot