NARENDER SINGH SHEKHAWAT, B-120, ACHARYA VINOBA BHAVE NAGAR, VAISHALI NAGAR, JAIPUR V. The Income Tax officer, Ward 1(3), Jaipur

ITA 451/JPR/2023

AI Insights

The case involves Narender Singh Shekhawat, the appellant, who contested an assessment order passed under sections 144/147 of the Income Tax Act, 1961, by the Income Tax Officer, Ward 3(5), Jaipur. The assessment was initially challenged before the CIT(A), which upheld the addition of Rs. 4,58,612 as short-term capital gain and Rs. 934 as income from other sources. The appellant had opted for the 'Vivad Se Vishwas Scheme, 2020', and claimed compliance with the scheme, including the payment of taxes and submission of forms. However, the CIT(A) dismissed the appeal due to non-submission of required forms, which the appellant argued were not issued by the department. The ITAT found that the appellant was not given a proper opportunity to present his case and thus remanded the matter back to the CIT(A).

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 132277 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-10-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 15-06-2023
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUMER SINGH SHEKHAWAT
• Keywords: Opportunity of being heard; Competent authority; Set aside
• Section: 147; 148; 144; 142(1); 139(1)

Judgement Text

vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Jh laanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 451/JP/2023 fu/kZkj.k o"kZ@Assessment Years : 2011-12 Narender Singh Shekhawat B-120, Acharya Vinobha Bhave Nagar, Vaishali Nagar, Jaipur cuke Vs. The Income Tax Officer, Ward 1(3), Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: BCHPS 5451 D vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. Sumer Singh Shekhawat jktLo dh vksj ls@ Revenue by : Sh. A. S. Nehra (Addl. CIT) lquokbZ dh rkjh[k@ Date of Hearing : 19/10/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 09/11/2023 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal filed by assessee is arising out of the order of the National Faceless Appeal Centre, Delhi dated 11/05/2023 [here in after (NFAC)/ ld. CIT(A) ] for assessment year 2011-12 which in turn arise from the order dated 29.10.2018 passed under section 144/147 of the Income Tax Act, by ITO, Ward 3(5), Jaipur. 2 ITA No. 451/JP/2023 Narendra Singh Shekhawat vs. ITO 2. In this appeal, the assessee has raised following grounds: - “1. The Learned A.O, erred to avoid facts as under The Assessee after filing Appeal to The CIT (Appeals) on 02.11.2018 against the order of the ITO Ward 3 (5), Jaipur Dated 29.10.2018 and after Ward in response to the Scheme of Department, Opted « VIVAD SE VISHWAS SCHEME, 2020» having duly fulfilled get availed Form. 1 and Form 2 on 27.01.2021, Copies of the Same are furnished herewith on 23.02.2021 having obtained certificate No. 271778880230221 from Hon'ble PCIT, Jaipur-1, Assessee Deposited Rs. 34526 by Form No. 4 BSR Code of Bank 0014431 on 31.10.2021 Challan No. 00474 of Rs. 34526 Thereafter to issue. The Form No. 5 was "The Action only to taken by the Department, and they did not issued that in due course' 2. The Learned Assessing officer erred to make addition of Rs. 4,58,612 against the Provision of Law in lack of Submission of Form No. 5 which was only to generated by Department itself and Assessee is not at all defaulter for the action not being taken by I. T. Department in due course 3. The Assessee craves to make a addition, modification, Alternation, correction in grounds of Appeal on or before last date fixed for hearing of the Appeal.” 3. Succinctly, the fact as culled out from the records is that the assessee filed his return of income for A.Y. 2011-12 u/s 139(1) of the IT Act, 1961 on 30.07.2011 vide acknowledgement No.262144070300711 declaring total income at Rs. 4,94,978/-. The case was reopened u/s 147 after recording reasons and notice u/s 148 of the IT Act, 1961 was issued after getting prior approval from the competent authority. Notice u/s 148 was issued to the assessee on 28.03.2018 and was duly served upon the assessee through registered post on 29.03.2018.The assessee did not file his return of income in response to notice u/s 148. Notice u/s 142(1) along with detailed questionnaire were issued. In response thereto, the 3 ITA No. 451/JP/2023 Narendra Singh Shekhawat vs. ITO assesssee furnished information / documents called for and ultimately the assessment order is passed on u/s. 144 of the Act determining the income of the assessee at Rs. 9,54,524/- vide order dated 29.10.2018. 4. Aggrieved from the order of the assessment, assessee preferred an appeal before the ld. CIT(A). Apropos to the grounds so raised the relevant finding of the ld. CIT(A) is reiterated here in below: “4.2 I have carefully gone through the grounds of appeal, facts of the case, assessment order passed by the AO. In this appeal no proper grounds of appeal were raised. On perusal of records, it is noticed that during the course of appellate proceedings, appellant had not filed or uploaded any response/written submissions in spite of four notices were issued to the appellant. The notices u/s 250 the Act was issued to the appellant on 19/02/2021 requiring compliance on 08/03/2021, on 08/07/2021 requiring compliance on 23/07/2021, on 08/11/2021 requiring compliance on 25/11/2021. However, no reply/submissions were uploaded in this office. The case was again fixed for hearing by issuing notice u/s 250 on 28/04/2023 requiring compliance on 08/05/2023 and again there is no response as yet. However, the appeal is being decided on merit as under: 4.3 In this case notice u/s 148 was issued to the appellant after taking prior approval from the competent authority on 28.03.2018. Appellant has not filed any return of income in response to the notice u/s 148. Further, no response was either filed by the appellant against the statutory notice issued u/s 142(1). Hence, income of the appellant was assessed u/s 144/147 of the Act after making the addition of Rs. 4,58,612/- as short term capital gain on sale of flat and Rs. 934/- as income from other sources. From the ground of appeal filed, though it is not proper, it appears that appellant is challenging the addition of Rs. 4,58,612/- on account of capital gain made to the total income of the appellant. 4.4 I have carefully gone through the grounds of appeal, facts of the case, assessment order passed by the AO. AO has calculated the capital gain after duly considering the sale deed dated 16/11/2009 uploaded by the appellant along with the Form 35 and after duly taking into account the cost of construction of flat as well as approportionate cost of land @ Rs.4,95,000/-. Therefore, in view of the elaborate discussion/analysis and conclusion of the A.O. in the Assessment order, and in absence of any response received from the appellant, I find no reason to interfere in the finding of the A.O. Appellant has not submitted anything 4 ITA No. 451/JP/2023 Narendra Singh Shekhawat vs. ITO either during the course of assessment proceedings or appellate proceedings to substantiate and rebut the finding of the AO. Hence, A.O. has rightly calculated the capital gain on sale of flat at Rs. 4,58,612/-. Thus the addition of Rs. 4,58,612/- is upheld and Ground no. 1 of the appeal is dismissed. 5.0 In the result, the appeal of the appellant is dismissed.” 5. As the appeal of the assessee was dismissed without the opportunity of being heard to the assessee the assessee has challenged the order of the ld. CIT(A) on the grounds as reiterated here in above. The ld. AR of the assessee in support of the grounds so raised submitted that the assessee has opted for Vivad Se Viswas scheme 2020. Having duly eligible availed the benefit of the scheme and stage of issue of form no. 1,2,3 & 4 has been reached. The PCIT, Jaipur-1 has issued certificate no. 271778880230221 and the assessee has paid the taxes as per the scheme on 31.10.2021 vide challan no. 00474. The form no. 5 ultimately not received so far and therefore, the assessee remained non-compliant before the ld. CIT(A). The ld. AR of the assessee submitted that these facts are not examined by the ld. CIT(A) and if given a chance the assessee would like to plea these contentions before the ld. CIT(A) and based on these arguments he prayed to set aside the issue to the file of the ld. CIT(A). 6. On the other hand, the ld. DR did not raise any specific objection to the prayer of the assessee and at the same did not placed on record as to why the form no. 5 is not issued to the assessee. 5 ITA No. 451/JP/2023 Narendra Singh Shekhawat vs. ITO 7. We have heard the rival contentions and perused the material placed on record. The bench noted that the appeal of the assessee dismissed without affording the opportunity of being heard to the assessee. Before us the ld. AR of the assessee submitted that the assessee has opted for Vivad Se Viswas scheme 2020, having so eligible have also filed the form no. 1,2,3 & 4. Even the PCIT, Jaipur-1 has issued certificate no. 271778880230221 and the assessee has paid the taxes as per the scheme on 31.10.2021 vide challan no. 00474. The form no. 5 ultimately not received by the assessee and therefore, the assessee could not submit that information to the ld. CIT(A). The ld. AR of the assessee submitted that these facts are not examined by the ld. CIT(A) and if given a chance the assessee would like to plead these contentions before the ld. CIT(A) and based on these arguments he prayed to set aside the issue to the file of the ld. CIT(A). On the other hand, we found that the ld. DR did not raise any specific objection to the prayer of the assessee and not disputed the contentions so raised. Therefore, we are of the considered view that the assessee is deprived of justice. Based on these set of facts we are inclined to accept the request of the ld. AR of the assessee to set aside the case to the file of the ld. CIT(A), to decide the case of the assessee after giving proper opportunity of being heard to the assessee. At the same time, the 6 ITA No. 451/JP/2023 Narendra Singh Shekhawat vs. ITO assessee is directed to represent and present all the facts before the ld. CIT(A) and should not ask for adjournment of philanderer’s grounds. At this stage, we remand back the matter without commenting upon the merits of the case and ld. CIT(A) is directed to pass an appropriate order in accordance with law. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 09/11/2023. Sd/- Sd/- ¼ lanhi xkslkbZ ½ ¼ jkBkSM deys’k t;arHkkbZ ½ (Sandeep Gosain) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 09/11/2023 * Ganesh Kumar, PS vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Narender Singh Shekhawat, Jaipur 2. izR;FkhZ@ The Respondent- ITO, Ward 1(3), Jaipur 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (ITA No. 451/JP/2023) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar