Jayapraksah Nagar, Noida V. ITO WARD - 1(5), Noida

ITA 3862/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2421 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 02-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAGDISH SINGH
• Keywords: Principle of natural justice; Set aside
• Section: 147; 148

Judgement Text

1 ITA NO. 3862/DEL/2019 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: I-2 + SMC NEW DELHI BEFORE MS SUCHITRA KAMBLE, JUDICIAL MEM BER, AND SHRI PRASHANT MAHARISHI, ACCOU NTANT MEMBER ITA NO. 3862/DEL/2019 ( A.Y 2009-10)) JAYAPRAKASH NAGAR VILL. ROJA JAJALPUR, DADRI, GR. NOIDA, NOIDA UTTAR PRADESH AGEPN1384N (APPELLANT) VS ITO WARD-1(5) NOIDA, UTTAR PRADESH (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SH. JAGDISH SINGH, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 30/07/2018 PASSED BY CIT(A)- L FOR ASSESSMENT YEAR 2009-10. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE T HE LD CIT(A) HAS ERRED IN DISMISSING THE APPEAL OF THE APPELLANT AS NON-MA INTAINABLE U/S 249 (4) (B) OF THE ACT FOR NON-PAYMENT OF THE ADVANCE TAX PAYAB LE BY THE APPELLANT AND SUCH ACTION IS CHALLENGED ON THE GROUND OF NON-FULF ILLMENT OF THE PROVISO TO SECTION 249(4), AS PER WHICH, THE SAID APPELLATE AU THORITY, ON APPLICATION BY THE APPELLANT, WAS EMPOWERED TO EXEMPT THE APPELLAN T FROM THE OPERATION OF THE ABOVE PROVISION OF LAW AND NO SUCH OPPORTUNITY WAS ALLOWED BY THE LD CIT(A). DATE OF HEARING 26.02.2020 DATE OF PRONOUNCEMENT 19.03.2020 2 ITA NO. 3862/DEL/2019 2, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND ALSO IN LAW THE IMPUGNED ASSESSMENT ORDER NEED BE SET ASIDE AS THE SAME HAS BEEN PASSED AFTER INCORRECT ASSUMPTION OF JURISDICTION BY THE A O U/S 147 OF THE ACT AS THE REASON RECORDED U/S 148 SUFFERS FROM LACK OF INDEPE NDENT APPLICATION OF MIND BY THE AO AND ALSO THE REASONS RECORDED ARE BASED O N THE FACTS CONTRARY TO THE SAME ON RECORD. 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE UPHOLDING THE ADDITION OF RS. 29,90,450/- U/S 68 OF THE IT ACT OF 1961, IGNORING THE FACT THAT THE BASIC FACTS CONSID ERED BY THE AO FOR MAKING SUCH ADDITION FOR ASSESSING THE LONG TERM CAPITAL G AIN WERE INCORRECT IN AS MUCH AS THE SALE CONSIDERATION OF RS 32,60,000/- TA KEN BY THE AO WAS INCORRECT AND ALSO THE SIZE OF THE PROPERTY SOLD ON WHICH CAPITAL GAIN WAS COMPUTED BY THE AO. 4. IN THE IMPUGNED ASSESSMENT THE LD. CIT (A) HAS ERR ED IN LAW AND ON THE FACTS & CIRCUMSTANCES OF THE CASE UPHOLDING THE ADD ITIONS MADE BY THE AO WITHOUT APPLICATION OF MIND THE DOCUMENTS/ EVIDENCE S FURNISHED BY THE APPELLANT. 5. THE LD. CIT(A) HAS ERRED BOTH IN LAW AND IN FACTS OF THE CASE IN PASSING THE IMPUGNED ORDER WITHOUT PROVIDING ANY OPPORTUNIT Y TO THE APPELLANT TO REPRESENT HIS CASE BEFORE HIMSELF. 3. THE ASSESSEE IS THE OWNER OF 65.20 SQ YA RDS OUT OF THE PROPERTY SOLD OF 168.04 SQ. YARDS. THE BUILDING WAS CONSTRUCTED ON THE JOINT PROPERTY. THIS HOUSE AND LAND WAS TRANSFERRED ON 15/7/2008. THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER FOR WHOLE OF THE LAND A ND BUILDING AND MADE ADDITION OF RS. 29,40,000/- IN THE HANDS OF THE ASS ESSEE. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 3 ITA NO. 3862/DEL/2019 5. AT THE TIME OF HEARING, NONE APPEARED FOR THE AS SESSEE AND THERE IS NO APPLICATION FOR ADJOURNMENT. THE NOTICE HAS BEEN D ULY SERVED TO THE ASSESSEE. THEREFORE, WE ARE PROCEEDING ON THE BASIS OF THE SU BMISSIONS MADE BY THE ASSESSEE BEFORE THE ASSESSING OFFICER AS WELL AS BE FORE THE CIT(A). 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AS W ELL AS ORDER OF THE CIT(A). 7. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIA L AVAILABLE ON RECORD. IT IS PERTINENT TO MENTION THAT THE CIT(A) WHILE CO NFIRMING THE ORDER OF THE ASSESSING OFFICER HAS NOT AT ALL GIVEN THE REASON AS TO HOW THE ASSESSING OFFICER HAS RIGHTLY ADOPTED THE VALUE AS PER CIRCL E RATE FOR COMPUTATION OF SHORT TERM CAPITAL GAIN. THE CIT(A) ALSO HAS NOT TAKEN C OGNIZANCE OF THE EVIDENCES FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE HIM. THEREFORE, IT WILL BE APPROPRIATE TO REMAND BACK TH IS MATTER TO THE FILE OF THE CIT(A) FOR PROPER ADJUDICATION OF THE APPEAL. NEEDL ESS TO SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPLE S OF NATURAL JUSTICE. THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATIS TICAL PURPOSE. 8. IN RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 1 9 TH MARCH, 2020. SD/- SD/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 19/03/2020 R. NAHEED COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 4 ITA NO. 3862/DEL/2019 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 26.02.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 27.02.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 1 9 .0 3 .2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 1 9 .0 3 .2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 1 9 .0 3 .2020 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER