Shri Arvindbhai Lallubhai Lakhankiya, Surat V. The DCIT, Circle-3(3), Surat

ITA 386/SRT/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9332 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 6 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 27-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P VAISHNAV
• Assessee Lawyers: SHRIASHWIN PAREKHC A
• Keywords: Sale consideration of property below Jantri Value; Principle of natural justice; Audi alteram partem; Capital Gains
• Section: 143(3); 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA NO. 386/SRT/2017 (AY 2013-14) (H EARING IN VIRTUAL COURT) SHRI ARVINDBHAI LALLUBHAI LAKHANKIA, B/78, HANS SOCIEETY, VARACHHA ROAD, SURAT PAN : AADPL3819P VS DCIT, CIRCLE-3(3), AAYKAR BHAVAN, MAJURAGATE, SURAT-395001 ASSESSEE / APPELLANT REVENUE /RESPONDENT ASSESSEE BY SHRIASHWIN PAREKH,C.A REVENUE BY SHRI O.P. VAISHNAV, CIT-DR DATE OF HEARING 26.07.2021 DATE OF PRONOUNCEMENT 26.07.2021 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER : 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-3, [CIT(A)] SURAT DATED 28.11.2017 FOR ASSESSMENT YEAR (AY) 2013-14. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE LEARNED CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.1,21,05,754/- FOR INDEXED COST OF COST OF IMPROVEMENT OF RS.75,00,000/- INCURRED IN EARLIER YEAR WITHOUT APPROPRIATE VERIFICATION. THE DEDUCTION OF RS.1,21,05,754/- SHOULD BE ALLOWED. 2. THE LEARNED CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.3,58,750/- FOR TRANSFER EXPENSES SUPPORTED BY EVIDENCES. THE ADDITION OF RS.3,58,750/- SHOULD THEREFORE, BE DELETED. 3. THE LEARNED CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.2,27,51,020/- U./S 50C OF THE ACT IN THE ITA NO. 386/SRT/2017 SH. ARVINDBHAI L. LAKHANKIA 2 ABSENCE OF ANY DIFFERENCE BETWEEN THE VALUE SHOWN IN THE REGISTERED SALE DEED AND VALUE DETERMINED BY STATE STAMP DUTY VALUATION AUTHORITY. THE ADDITION OF RS.2,27,51,020/- SHOULD THEREFORE, BE DELETED. 4. THE LEARNED CIT(A) HAS GRIEVOUSLY ERRED IN LAW AND ON FACTS IN CONFIRMING THE ADDITION OF RS.2,27,51,020/- WITHOUT REFERRING THE ISSUE TO VALUATION OFFICER U/S. 50C(2) OF THE ACT. THE ADDITION SHOULD BE DELETED. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSMENT IN THE AFORESAID MATTER WAS COMPLETED UNDER SECTION 143(3) ON 23.03.2016.THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDER MADE THE ADDITION OF UNDISCLOSED LONG TERM CAPITAL GAINS (LTCG FOR SHORT), DEEM INCOME UNDER SECTION 50C AND DISALLOWANCE OF OTHER EXPENSES. ON APPEAL BEFORE LD. CIT(A) THE ACTION OF ASSESSING OFFICER WAS UPHELD. THE LD. CIT(A) UPHELD THE ORDER OF ASSESSING OFFICER IN EX PARTE ORDER. THUS, FURTHER AGGRIEVED THE ASSESSEE FILED PRESENT APPEAL BEFORE THE TRIBUNAL. 3. WE HAVE HEARD THE SUBMISSION OF LD. AUTHORIZED REPRESENTATIVE (AR) OF THE ASSESSEE AND LD. SR. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE LD. AR OF THE ASSESSEE SUBMITS THAT DURING THE HEARING BEFORE LD. CIT(A) THE ASSESSEE SOUGHT ADJOURNMENT THROUGH HIS LD. REPRESENTATIVE VIDE APPLICATION DATED 07.11.2017.THE ASSESSEE SOUGHT ADJOURNMENT FOR TWENTY DAYS ONLY, AS HIS REPRESENTATIVE WAS BUSY IN COMPLETING TAX AUDIT FORMALITIES. THE LD. AR OF THE ASSESSEE SUBMITS THAT THE ADJOURNMENT WAS DECLINED TO THE ASSESSEE AND ITA NO. 386/SRT/2017 SH. ARVINDBHAI L. LAKHANKIA 3 ORDER WAS PASSED BY LD. CIT(A) AFTER TWENTY ONE DAYS. THE LD. AR FOR ASSESSEE SUBMITS THAT THE ASSESSEE NOT DEFAULTED IN MAKING PROPER COMPLIANCES, RATHER SOUGHT ADJOURNMENT FOR VALID REASONS, WHICH WAS DECLINED AND APPEAL OF ASSESSEE WAS DISMISSED BY LD. CIT(A) FOR WANT OF REQUISITE EXPLANATION, DETAILS OF EVIDENCE. THE LD. AR OF THE ASSESSEE SUBMITS THAT THE ASSESSEE HAS A GOOD CASE ON MERIT AND IF LIKELY TO SUCCEED, IF THE ASSESSEE IS GIVEN ONE MORE OPPORTUNITY OF HEARING ON MERIT. THE LD. AR OF THE ASSESSEE SUBMITS THAT HE UNDERTAKE ON BEHALF OF ASSESSEE TO BE MORE VIGILANT IN FUTURE. 4. ON THE OTHER HAND, LD. COMMISSIONER OF INCOME TAX-DEPARTMENTAL REPRESENTATIVE (CIT-DR) OF THE REVENUE SUBMITS THAT HON'BLE BENCH MAY TAKE APPROPRIATE CALL AND PASS THE ORDER IN ACCORDANCE WITH LAW. HOWEVER, THE ASSESSEE MUST REMAIN VIGILANT IN ATTENDING THE HEARING AND NOT TO SEEK FAVOLUS ADJOURNMENT. 5. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PARTIES AND PERUSED THE ORDER OF LOWER AUTHORITIES. WE FIND THAT LD. CIT(A) FIXED THE DATE OF HEARING ON 07.11.2017. ON 07.11.2017, THE LD. AR OF THE ASSESSEE FILED AN APPLICATION FOR ADJOURNMENT. HOWEVER, THE ADJOURNMENT WAS DECLINED. THE LD. CIT(A) HELD THAT ASSESSEE FILED TO FURNISH SUFFICIENT DOCUMENTARY EVIDENCE AND REQUISITE EXPLANATION DESPITE REPEATED OPPORTUNITIES AND DISMISSED THE APPEAL. ITA NO. 386/SRT/2017 SH. ARVINDBHAI L. LAKHANKIA 4 6. BEFORE US THE LD. AR OF THE ASSESSEE SUBMITS THAT ADJOURNMENT WAS SOUGHT FOR VALID REASON, AS THE REPRESENTATIVE OF THE ASSESSEE WAS BUSY IN TAX AUDIT MATTERS AND THERE WAS NO DEFAULT IN ATTENDANCE OF HEARING BEFORE LD. CIT(A). WE FIND MERIT IN THE SUBMISSION OF LD. AR OF THE ASSESSEE THAT IT IS NOT THE CASE OF ABSENCE RATHER THE ASSESSEE SOUGHT TIME FOR MAKING COMPLIANCE. KEEPING IN THE AFORESAID FACTS AND CIRCUMSTANCES, WE FIND THAT ASSESSEE WAS NOT PROVIDED FAIRS CHANCE AND SUFFICIENT OPPORTUNITIES TO EXPLAIN VARIOUS GROUNDS OF APPEAL. WE FURTHER FIND THAT OF VITAL REQUIREMENT OF PRINCIPLE OF AUDI ALTERAM PARTEM IS CONSPICUOUSLY MISSING IN THE ORDER. IN OUR VIEW, ADJUDICATED PROCESS HAS TO BE IN CONSONANCE WITH THE DOCTRINE OF AUDI ALTERAM PARTEM I.E, NO ONE SHOULD BE CONDEMNED UNHEARD. 7. CONSIDERING THAT THE PRINCIPLE OF NATURAL JUSTICE AND THE DOCTRINE OF AUDI ALTERAM PARTEM , WE ACCEPT THE SUBMISSION OF LD. AR OF ASSESSEE AND RESTORE BACK THE MATTER TO THE FILE OF LD. CIT(A) TO CONSIDER THE MATTER AFRESH AND TO PASS ORDER IN ACCORDANCE WITH LAW. NEEDLESS TO DIRECT THAT BEFORE PASSING THE ORDER, THE LD. CIT(A) SHALL GRANT REASONABLE AND FAIR OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO BE MORE VIGILANT IN FUTURE AND TO MAKE PROPER COMPLIANCE ON THE DATE FIXED AND NOT TO SEEK ADJOURNMENT WITHOUT ANY VALID REASONING. THE ASSESSEE IS FURTHER DIRECTED TO PROVIDE HIS E- ITA NO. 386/SRT/2017 SH. ARVINDBHAI L. LAKHANKIA 5 MAIL ADDRESS EITHER OR TO HIS LD. REPRESENTATIVE FOR EFFECTIVE COMMUNICATION OF NOTICE ETC. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER ANNOUNCED AT THE TIME OF HEARING OF APPEAL ON MONDAY, 26 TH JULY 2021 IN THE VIRTUAL COURT HEARING. SD/- SD/- ( DR ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER SURAT, DATED: 26/07/2021 DKP. SR.P.S. O. S COPY TO: 1. APPELLANT-SHRI ARVINDBHAI L. LAKHANKIA B/78, HANS SOCIETY, VARACHHA RD. SURAT 2. RESPONDENT- DCIT, CIR-3(3), AAYKAR BHAVAN, MAJURA GATE, SURAT-395 001 3. CIT(A)-3, SURAT 4. CIT 5. DR 6. GUARD FILE TRUE COPY/ BY ORDER ASSISTANT REGISTRAR, ITAT, SURAT