SANJAY NAMDEV TILEKAR, PUNE V. INCOME TAX OFFICER,WARD 14(5) Pune, PUNE

ITA 382/PUN/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 1786 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-05-2024
• Assessment Year: 2009-2010
• Appeal Filed On: 25-02-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Cost of acquisition; Reasonable cause
• Section: 147; 148; 143(3); 54B; 54F; 55A; 48

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “B”, PUNE BEFORE SHRI R. K. PANDA, VICE PRESIDENT AND SHRI VINAY BHAMORE, JUDICIAL MEMBER आयकर अपील सं. / ITA No.382/PUN/2024 िनधाᭅरण वषᭅ / Assessment Year: 2009-10 Sanjay Namdev Tilekar, Row House No.6, Manjari Green, Manjari Stud Farm, Phase One, Pune- 412307. PAN : AHWPT3174F Vs. ITO, Ward-14(5), Pune. Appellant Respondent आदेश / ORDER PER VINAY BHAMORE, JM: This appeal filed by the assessee is directed against the order dated 28.03.2023 passed by LD CIT(A)/NFAC, Delhi for the assessment year 2009-10. 2. The present appeal is filed belatedly with 281 days. The appellant furnished an affidavit along with death certificate of his wife, praying for condonation of delay of 281 days in the circumstances mentioned therein. Ld. DR could not controvert the averments made in the above affidavit. We are of the considered Assessee by : Shri Pramod S. Shingte Revenue by : Shri Sourabh Nayak Date of hearing : 29.05.2024 Date of pronouncement : 05.06.2024 ITA No.382/PUN/2024 2 opinion that the reasons mentioned by the assessee constitute reasonable cause for not filing the appeal within prescribed time. In the circumstances, the delay of 281 days is hereby condoned and the appeal is admitted for adjudication. 3. The appellant has raised the following grounds of appeal :- “1. On the facts and the circumstances of the case and in law, lower authorities erred in passing ex-parte order and erred in not deciding the issue on the merits of the case, this action is being violative of principal of natural justice. Your appellant prays for granting opportunity of hearing before lower authorities. Without prejudice to the above grounds of appeal, following grounds are also taken on merit: 2. On the facts and in the circumstances of the case and in law. The Learned Officer erred in initiating proceedings under section 147 and there by-passing order under section 147 and there by-passing order under section 143(3) rws 147 of the Income Tax Act 1961. 3. On the facts and in the circumstances of the case and in law the Learned Assessing Officer erred in initiating the proceedings under section 147 solely on the basis of satisfaction of investigation wing and since there is no separate satisfaction recorded by the Assessing Officer, therefore the entire proceedings are void -ab-initio. 4. On the facts and in the circumstances of the case and in law, the Learned Assessing Officer erred in re-computing index cost of acquisition thereby reducing the same by Rs.55,92,386/-, the action is bad in law as under section 55A of the Income Tax Act, 1961 Assessing Officer cannot make the reference for valuation as on 01/04/1981. 5. On the facts and in the circumstances of the case and in law, the Learned Assessing officer erred in restricting the claim made under section 54B to the tune of Rs.74,400/- as against the Rs.1,08,55,000/- thereby reducing the same by Rs.34,15,000/- by disregarding appellants contention. 6. On the facts and in the circumstances of the case and in law, the Learned Assessing officer erred in not granting the claim of Rs.23,50,034 made toward purchase of house property. ITA No.382/PUN/2024 3 Your appellant craves for to add, alter, amend, modify, delete all above or any grounds of appeal before or during the course of hearing in the interest of natural justice.” 4. The facts, in brief, are that the assessee is an individual filed his return of income on 15-07-2009 declaring income of Rs.73,460/- for assessment year 2009-10. The case was reopened by issuing notice u/s 148 for disallowing the excess claim u/s 54B & 54F of the IT Act. After considering the reply of the assessee, the AO made addition of Rs.68,38,740/- by reducing cost of acquisition & indexed cost of acquisition & by denying deduction of investment in new house, and passed the assessment order u/s 143(3) r.w.s. 147 of the IT Act on 30.11.2016 determining total income at Rs.69,12,200/-. 5. Being aggrieved with the above order, an appeal was preferred before ld. CIT(A)/NFAC. Since the assessee remained absent the appeal was dismissed by LD CIT(A)/NFAC vide order dated 28-03-2023 by observing as under :- “In this case notices for hearing have been sent to the appellant on 25.12.2020, 19.01.2021, 10.02.2021, 28.12.2022 and 17.01.2023. The appellant has not responded to these notices. It is apparent that the appellant is not interested in pursuing the impugned appeal before me. On merits also there is nothing on record to support the issues raised in this appeal. Hence, in view of the above reasons, this appeal is dismissed.” ITA No.382/PUN/2024 4 6. Being aggrieved with the above ex-parte order passed by ld. CIT(A)/NFAC, the assessee is in appeal before this Tribunal. 7. It was submitted by LD counsel of the assessee that LD CIT(A)/NFAC was not justified in passing ex-parte order without deciding the grounds of appeal, hence the order becomes bad in law & illegal. It was further submitted before the bench that as per section 250(6) of the IT Act LD CIT(A)/NFAC was duty bound to decide the grounds of appeal on merits even if the assesse could not appear on the date of hearing. It was further submitted by the counsel of the assessee that wife (Rohini Sanjay Tilekar) of the assesse died at the young age of 48 years & due to the untimely death of his wife the assesse was under mental shock & therefore could not attend the hearing notice issued by LD CIT(A)/NFAC. It was therefore requested before the bench to set-a-side the ex-parte order & restore the matter back to the file of the first appellate authority to provide one more opportunity to the assessee to submit his claim in support of grounds of appeal. 8. LD DR on the other hand supported the order passed by the AO & LD CIT(A)/NFAC. 9. We have heard Ld Counsels from both the sides & perused the material available on record. We find that due to the death of ITA No.382/PUN/2024 5 wife of the assessee at a young age of 48 years the assessee was under mental trauma for a long period & could not appear before LD CIT(A)/NFAC. It is also seen that total 5 notices were issued out of which 3 were issued during hard covid times & only 2 effective notices were issued by LD CIT(A)/NFAC. It is further seen that Ld CIT(A)/NFAC passed ex-parte order in total six lines, without deciding grounds of appeal. This practice cannot be supported by us because as per section 250(6) of the IT Act Ld CIT(A)/NFAC was duty bound to decide the appeal on merits dealing with each ground of appeal, but LD CIT(A)/NFAC miserably failed to do so. We therefore find force in the arguments of Ld counsel of the assessee that the order passed by LD CIT(A)/NFAC is illegal & bad in law. We therefore considering the totality of facts deem it proper to set-a-side the ex-parte order & remand the matter back to the file of LD CIT(A)/NFAC with direction to decide the issue afresh after providing reasonable opportunity of hearing to the assesse. LD CIT(A)/NFAC shall pass order as per facts & law & on grounds of appeal after providing reasonable opportunity of being heard to the assessee. The assessee is also hereby directed to submit the details/ explanations in support of the grounds of appeal on merit before ITA No.382/PUN/2024 6 LD CIT(A)/NFAC on the appointed day without seeking any adjournment under any pretext, failing which LD CIT(A)/NFAC is at liberty to pass appropriate orders as per law. We hold & direct accordingly. 10. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open Court on 05 th June, 2024. Sd/- Sd/- (R. K. PANDA) (VINAY BHAMORE) VICE PRESIDENT JUDICIAL MEMBER पुणे / Pune; ᳰदनांक / Dated : 05 th June, 2024. Sujeet आदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The Pr. CIT concerned. 4. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “B” बᱶच, पुणे / DR, ITAT, “B” Bench, Pune. 5. गाडᭅ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.