Pilla RamaKrishna, Visakhapatanam V. Income Tax Officer, Ward-5(2), Visakhapatanam

ITA 42/VIZ/2022

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 0274 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 20-03-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital Gains
• Section: 143(1)

Judgement Text

आयकर अपीऱीयअधिकरण, विशाखापटणम पीठ, विशाखापटणम IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM श्री द ु व्ि ू रु आर एऱ रेड्डी, न्याययक सदस्य एिं श्री एस बाऱाक ृ ष्णन, ऱेखा सदस्य के समक्ष BEFORE SHRI DUVVURU RL REDDY, HON’BLE JUDICIAL MEMBER & SHRI S BALAKRISHNAN, HON’BLE ACCOUNTANT MEMBER आयकर अऩीऱ सं./ I.T.A. No. 42/Viz/2022 (ननधधारण वषा / Assessment Year :2008-09) Pilla Ramakrishna, Visakhapatnam. PAN: AJKPR 7497 P Vs . Income Tax Officer, Ward-5(2), Visakhapatnam. (अऩीऱधथी/ Appellant) (प्रत्यथी/ Respondent) अऩीऱधथी की ओर से/ Appellant by : Sri GVN Hari, Advocate प्रत्यधथी की ओर से / Respondent by : Sri ON Hari Prasadarao, Sr. AR स ु नवधई की तधरीख / Date of Hearing : 28/06/2022 घोषणध की तधरीख/Date of Pronouncement : 15/07/2022 O R D E R PER DUVVURU RL REDDY, Judicial Member : This appeal filed by the assessee is against the order of the ld. CIT(A)-2, Visakhapatnam in appeal No.091/2010-11/ITO, W- 5(2), VSP/2019-20, dated 30/07/2019 for the AY 2008-09. 2. The assessee has raised the following grounds of appeal: “1. The order of the Ld. CIT(A) is contrary to the facts and also the law applicable to the facts of the case. 2 2. The Ld. CIT(A) is not justif ied in dismissing the appeal ex-parte. 3. The Ld. CIT(A) ought to have decided the appeal on merits of the case and ought to have deleted the addition of Rs. 31,36,960/- made by the assessing officer towards long term capital gains. 4. Any other grounds may be urged at the time of hearing.” 3. At the outset, the Ld. AR submitted that there is a delay of 905 days in filing the appeal. In this regard, the Ld. AR brought our attention to petition for condonation of delay filed by the assessee dated 21/3/2022 and explained the reasons why the assessee filed the appeal beyond the prescribed time limit. On perusal of the explanation given by the assessee for the belated filing of the appeal, we are of the considered opinion that there is a sufficient and reasonable cause and the pandemic situation also added to the belated filing of the appeal. Therefore, in our view it is a fit case to condone the delay and accordingly the delay of 905 days in filing the appeal before the Tribunal is delayed and we proceed to adjudicate the appeal on merits. 4. Brief facts of the case are that the assessee is an individual engaged in the business of commission agent filed his return of income for the AY 2008-09 on 3/12/2008 declaring an income of 3 Rs. 25,920/- and the same was processed U/s. 143(1) of the Act. During the assessment proceedings the AO noted from the assessee’s bank account with Bank of India, Surya Bagh Branch, Visakhapatnam that the appellant made huge deposits on various dates and the assessee was asked to explain the source for the said deposits. In response the assessee submitted that the amounts deposited were out of funds received from family settlement and due to ignorance the details were not furnished to the department. Thereafter, the AO got information from the SRO and found that the appellant along with his minor son sold land admeasuring 1210 sq yds for a consideration of Rs. 31,46,000/- and part of which amounting to Rs. 18 lakhs was credited to the SB Account of the assessee with Bank of India, Visakhapatnam. The assessee explained that the land sold was the agricultural land and therefore exempt from capital gain tax, but the same was also not declared in his return of income. Since the AO is not satisfied with the explanation given by the assessee, the Ld. AO made addition of Rs. 31,210/- towards interest received by the assessee under the head income from other sources. The AO also made an addition of Rs. 31,36,960/- under the head capital gains from the sale of land and completed the assessment determining the assessed income of Rs. 31,94,090/-. Aggrieved 4 by the order of the Ld. AO, assessee went on appeal before the Ld. CIT(A). On appeal, none appeared before the Ld. CIT(A) and therefore, the Ld. CIT(A) dismissed the appeal. Aggrieved by the order of the Ld. CIT(A), assessee is in appeal before us. 5. At the outset, the Ld. AR submitted before us that the Ld. CIT (A) has passed ex-parte order without providing an opportunity to the assessee of being heard. It was therefore pleaded that the matter may be remitted back to the file of the Ld CIT (A) in order to provide one more opportunity to the assessee of being heard. Ld. DR, on the other hand, vehemently opposed to the submissions of the Ld. AR and argued that several opportunities had been provided to the assessee however, on the given dates of hearing, neither the assessee nor his Representative appeared before the Ld. CIT (A). It was further submitted that the Ld. CIT (A) had no other option but to pass ex-parte order based on the materials available on record. Hence, it was pleaded that the order passed by the Ld. CIT(A) does not call for any interference. 6. We have heard the rival submissions and carefully perused the materials on record. On examining the facts of the case, we find that the Ld. CIT (A) had posted the case on several occasions. However, none appeared on behalf of the assessee before the CIT(A) on the dates of hearing. Therefore, the Ld. CIT (A) was left with no other option except to 5 adjudicate the appeal ex-parte. In this situation, we are of the considered opinion that the Ld. CIT(A) ought to have decided the issues on merits instead of dismissing the appeal ex-parte. Therefore, considering the prayer of the Ld. AR, and in the interest of justice, we hereby remit the matter back to the file of Ld. CIT (A) in order to consider the appeal afresh on merits by providing one more opportunity to the assessee of being heard. At the same breath, we also hereby caution the assessee to promptly co-operate before the Ld. CIT (A) in the proceedings failing which the Ld. CIT (A) shall be at liberty to pass appropriate order in accordance with law and merits based on the materials on the record. It is ordered accordingly. 7. In the result, appeal filed by the assessee is allowed for statistical purposes as indicated hereinabove. Pronounced in the open Court on the 15 th July, 2022. Sd/- Sd/- (एस बाऱाक ृ ष्णन) (द ु व्ि ू रु आर.एऱ रेड्डी) (S.BALAKRISHNAN) (DUVVURU RL REDDY) ऱेखा सदस्य/ACCOUNTANT MEMBER न्याययकसदस्य/JUDICIAL MEMBER Dated :15.07.2022 OKK - SPS 6 आदेश की प्रतिलिपि अग्रेपिि/Copy of the order forwarded to:- 1. ननधधाररती/ The Assessee – Pilla Ramakrishna, D.No.2-29, Bakkannapalem, PM Palem, Madhurawada, Visakhapatnam. 2. रधजस्व/The Revenue – Income Tax Officer, Ward-5(2), Direct Tax Building, MVP Colony, Visakhapatnam. 3. The Principal Commissioner of Income Tax-2, Visakhapatnam. 4. आयकर आय ु क्त (अऩीऱ)/ The Commissioner of Income Tax (Appeals)-2, Visakhapatnam. 5. ववभधगीय प्रनतननधध, आयकर अऩीऱीय अधधकरण, ववशधखधऩटणम/ DR, ITAT, Visakhapatnam 6 .गधर्ा फ़धईऱ / Guard file आदेशधन ु सधर / BY ORDER Sr. Private Secretary ITAT, Visakhapatnam