Shashi Kant Tyagi, Ghaziabad V. DCIT, Circle- 2, Ghaziabad

ITA 3882/DEL/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 4419 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 15-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Keywords: Capital asset
• Section: 2(14); 143(2); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : G : NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.3882/DEL/2017 ASSESSMENT YEAR : 2008-09 SHASHI KANT TYAGI, AKHILESH KUMAR, ADVOCATE, CHAMBER NO.206-207, ANSAL SATYAM, RDC RAJ NAGAR, GHAZIABAD, UTTAR PRADESH. PAN: ADWPT4804E VS DCIT, CIRCLE-2, GHAZIABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI GAURAV BANSAL, CA REVENUE BY : SHRI S.S. RANA, CIT, DR DATE OF HEARING : 25.11.2019 DATE OF PRONOUNCEMENT : 27.11.2019 ORDER PER R.K. PANDA, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 1 ST MARCH, 2017 OF THE CIT(A), GHAZIABAD, RELATING TO A SSESSMENT YEAR 2008-09. 2. ALTHOUGH A NUMBER OF GROUNDS HAVE BEEN RAISED BY THE ASSESSEE, THESE ALL RELATE TO THE EX PARTE ORDER OF THE CIT(A) CONFIRMING THE ADDITION OF ITA NO.3882/DEL/2017 2 RS.15,78,74,336/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF LONG-TERM CAPITAL GAIN. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND HAS NOT FILED HIS RETURN OF INCOME FOR THE RELEVANT ASSESSM ENT YEAR. SINCE THE ASSESSEE HAD SOLD AN IMMOVABLE PROPERTY IN NEWLY DEVELOPED RESID ENTIAL AREA CALLED RAJ NAGAR EXTENSION IN THE VICINITY OF MEERUT ROAD, GHAZIABAD , NH-58 FOR RS.16,01,44,400/- ON 15 TH FEBRUARY, 2008 ALONG WITH HIS OTHER RELATIVES AND SINCE THE LAND WAS SITUATED WITHIN THE NOTIFIED AREA AND, HENCE, COVER ED UNDER THE DEFINITION OF CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) OF THE I T ACT, 1961, THE ASSESSING OFFICER, AFTER RECORDING REASONS, REOPENED THE ASSE SSMENT AND ISSUED NOTICE U/S 148 OF THE IT ACT TO THE ASSESSEE. IN RESPONSE TO THE NOTICE U/S 148, THE ASSESSEE FILED HIS RETURN OF INCOME ON 23 RD JULY, 2014 DECLARING AN INCOME OF RS.2,17,054/-. SUBSEQUENTLY, THE ASSESSING OFFICER ISSUED NOTICE U /S 143(2) WHICH WAS SERVED ON THE ASSESSEE. SINCE THERE WAS NO PROPER COMPLIANCE FROM THE SIDE OF THE ASSESSEE, THE ASSESSING OFFICER DETERMINED THE TOTAL INCOME O F THE ASSESSEE AT RS.15,80,91,390/- BY MAKING AN ADDITION OF RS.15,78 ,74,336/- BEING THE LONG-TERM CAPITAL GAIN ON ACCOUNT OF SALE OF THE SAID PROPERT Y. IN APPEAL, THE LD.CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER IN THE EX PARTE ORDER PASSED BY HIM BY RELYING ON THE DECISION OF THE HON'BLE SUPREME COUR T IN THE CIT VS. B.N. BHATTACHARJEE & ANR., 118 ITR 461 (SC), THE DECISION OF THE HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT, 223 ITA NO.3882/DEL/2017 3 ITR 480 (M.P.) AND THE DECISION OF THE TRIBUNAL IN THE CASE OF CIT VS. MULTIPLAN INDIA (P.) LTD, 38 ITD 320 (DEL.). SO FAR AS THE MERIT OF THE CASE IS CONCERNED, HE SIMPLY UPHELD THE ACTION OF THE ASSESSING OFFICER. 4. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSESS EE IS IN APPEAL BEFORE THE TRIBUNAL. 5. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE FIND THE ASSESSING OFFI CER, IN THE INSTANT CASE, MADE ADDITION OF RS.15,78,74,336/- BEING THE LONG-TERM C APITAL GAIN ON ACCOUNT OF SALE OF LAND AT MEERUT ROAD, GHAZIABAD, NH-58. WE FIND, D ESPITE OPPORTUNITIES GRANTED BY THE CIT(A), THERE WAS NO APPEARANCE BEFORE HIM F OR WHICH THE LD.CIT(A) DISMISSED THE APPEAL EX PARTE . IT IS THE SUBMISSION OF THE LD. COUNSEL THAT IN THE INTEREST OF JUSTICE, THE ASSESSEE SHOULD BE GIVEN O NE FINAL OPPORTUNITY TO SUBSTANTIATE ITS CASE. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE, WE DEEM IT PROPER TO RESTORE T HE ISSUE TO THE FILE OF THE CIT(A) WITH A DIRECTION TO GRANT ONE FINAL OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE ITS CASE. THE ASSESSEE IS ALSO HEREBY DIRECTED TO APPE AR BEFORE THE CIT(A) AND EXPLAIN HIS CASE, FAILING WHICH THE LD.CIT(A) IS AT LIBERTY TO PASS APPROPRIATE ORDER AS PER LAW. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.3882/DEL/2017 4 6. IN THE RESULT, THE APPEAL FILED BY THE ASS ESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 2 7.11.2019. SD/- SD/- (KULDIP SINGH) (R.K. PANDA) JUDICIAL MEMBER ACCO UNTANT MEMBER DATED: 27 TH NOVEMBER, 2019 DK COPY FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI