SMT. BEENA JAIN, KOTA V. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, KOTA

ITA 486/JPR/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5967 (ITAT-JAIPUR)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 08-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C GUPTA
• Assessee Lawyers: N KATARIA
• Keywords: Deduction for capital gain; Bonafide belief; Set aside
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 486/JP/2019 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2014-15 SMT. BEENA JAIN G-1-317(C), ROAD NO. 6, IPIA, KOTA. CUKE VS. THE ACIT, CIRCLE-1, KOTA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABJPJ 3132 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI N. KATARIA (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI K.C. GUPTA (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 11/12/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 07/02/2020 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 13.02.2019 OF THE LD. CIT(A), KOTA FOR THE ASSESSME NT YEAR 2014-15. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS:- 1. THE ASSESSMENT ORDER PASSED U/S 143(3) IS BAD I N LAW AS WELL AS ON FACTS OF THE PRESENT CASE AND HENCE, THE SAME MAY PLEASE BE QUASHED. 2. THE LD. CIT(A) ERRED IN NOT GIVING PROPER OPPORT UNITY OF BEING HEARD AND PASSING THE ORDER WITHOUT ANY REPRESENTAT ION ON THE MATTER FROM THE ASSESSEE. ITA NO. 486/JP/2019 SMT. BEENA JAIN VS. ACIT 2 3. RS. 54,58,125/- THE LD. AO ERRED IN LAW AS WELL AS ON THE FACTS OF THE PRESENT CASE IN REJECTING LONG TERM CAPITAL GAIN EXEMPTION CLAIMED U/S 10(38) OF THE INCOME TAX ACT, 1961 AND THE LD. CIT(A) ERRED IN SUSTAINAING THE SAME. 4. RS. 1,09,163/- THE LD. AO ERRED IN LAW AS WELL A S ON THE FACTS OF THE PRESENT IN MAKING ADDITION ON ACCOUNT OF COM MISSION INCOME AND THE LD. CIT(A) ERRED IN SUSTAINING THE S AME. 5. RS. 3,99,698/- THE LD. AO ERRED IN LAW AS WELL A S ON THE FACTS OF THE PRESENT CASE IN MAKING DISALLOWANCE ON ACCOU NT OF INTEREST EXPENSE CLAIMED ON BORROWINGS AND THE LD. CIT(A) ER RED IN SUSTAINING THE SAME. 6. THE APPELLANT PRAYS YOUR HONORS INDULGENCE TO A DD, AMEND, MODIFY OR DELETE ALL OR ANY GROUND OF APPEAL. 2. AT THE TIME OF HEARING, THE LD. AR OF THE ASSESS EE HAS SUBMITTED THAT THE LD. CIT(A) DISMISSED THE APPEAL EX-PARTE A ND NO PROPER OPPORTUNITY OF HEARING WAS GIVEN TO THE ASSESSEE BE FORE PASSING THE IMPUGNED ORDER. HE HAS SUBMITTED THAT THE NOTICES I SSUED BY THE LD. CIT(A) WERE RECEIVED BY THE EMPLOYEE OF THE ASSESSE E ONE SHRI ANKIT KUMAR JAIN BUT HE DID NOT INFORMED ABOUT THE NOTICE S EITHER TO THE ASSESSEE OR TO THE AUTHORIZED REPRESENTATIVE SHRI A RPIT JAIN (C.A.) WHO WAS TO APPEAR BEFORE THE LD. CIT(A) AND THUS THE LD . AR HAS SUBMITTED THAT DUE TO SOME COMMUNICATION GAP, NOBODY HAS APPE ARED ON BEHALF OF THE ASSESSEE ON THE NOTICES ISSUED BY THE LD. CI T(A). THE LD. AR THUS SUBMITTED THAT THE ASSESSEE ALSO GIVEN E-MAIL ID IN FORM 35 HOWEVER, NO NOTICE WAS SENT THROUGH E-MAIL TO THE ASSESSEE. THUS, THE LD. AR HAS SUBMITTED THAT ONE MORE OPPORTUNITY MAY BE GRANTED TO THE ASSESSEE TO PRESENT HER CASE BEFORE THE LD. CIT(A). HE HAS SUBM ITTED THAT THE ASSESSEE FILED AN AFFIDAVIT OF SHIR ANKIT KUMAR JAI N WHEREIN HE HAS ITA NO. 486/JP/2019 SMT. BEENA JAIN VS. ACIT 3 MADE A SWORN STATEMENT THAT HE HAS RECEIVED NOTICE ISSUED BY THE LD. CIT(A) BUT COULD NOT INFORMED THE AUTHORIZED REPRES ENTATIVE ON THE BONAFIDE BELIEF THAT THE AUTHORIZED REPRESENTATIVE MUST BE KNOWING THE STATUS OF HEARING OF THE APPEAL BEFORE THE LD. CIT( A). THUS THE LD. AR HAS PLEADED THAT THE IMPUGNED ORDER MAY BE SET ASID E AND MATTER BE REMANDED BACK TO THE RECORD OF THE LD. CIT(A) FOR G RANTING ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE. 3. ON THE OTHER HAND, THE LD. DR HAS VEHEMENTLY OPP OSED THE REMAND OF THE MATTER TO THE LD. CIT(A) AND SUBMITTE D THAT THE LD. CIT(A) ISSUED 5 NOTICES TO THE ASSESSEE AND DESPITE VARIOUS NOTICES NOBODY HAS APPEARED BEFORE THE LD. CIT(A), THEREFOR E, SUFFICIENT OPPORTUNITIES WERE GRANTED BY THE LD. CIT(A) TO THE ASSESSEE BEFORE PASSING THE PRESENT ORDER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS W ELL AS THE RELEVANT MATERIAL ON RECORD. ON PERUSAL OF THE IMPU GNED ORDER WE FIND THAT NOBODY APPEARED ON BEHALF OF THE ASSESSEE BEFO RE THE LD. CIT(A) DESPITE NOTICES DATED 25.07.2017, 16.10.2017, 02.08 .2018, 26.10.2018 & 26.11.2018 WERE ISSUED BY THE LD. CIT(A). THE ASS ESSEE HAS NOW EXPLAINED THE CAUSE OF NONE APPEARANCE THAT THE PER SON WHO IS LOOKING AFTER THE TAX MATTER ON BEHALF OF THE ASSESSEE PROP RIETORSHIP CONCERN RECEIVED NOTICES ISSUED BY THE LD. CIT(A) HOWEVER, HE DID NOT APPRISE THE AUTHORIZED REPRESENTATIVE ABOUT THE NOTICE, DAT E OF HEARING BEFORE THE LD. CIT(A) ON THE BONAFIDE BELIEF THAT THE AUTH ORIZED REPRESENTATIVE MR. ARPIT JAIN (CA) MUST BE AWARE THE DATE OF HEARI NGS THE ASSESSEE HAS FILED AN AFFIDAVIT OF SHRI ANKI KUMAR JAIN WHER EIN HE HAS EXPLAINED ITA NO. 486/JP/2019 SMT. BEENA JAIN VS. ACIT 4 CIRCUMSTANCES UNDER WHICH HE DID NOT INFORM THE AUT HORIZED REPRESENTATIVE OF THE ASSESSEE ABOUT THE NOTICES IS SUED BY THE LD. CIT(A) AND DATE OF HEARING OF THE APPEAL. THOUGH TH E LD. CIT(A) GRANTED VARIOUS OPPORTUNITY TO THE ASSESSEE BY ISSU ING THE ABOVE STATED NOTICES HOWEVER, ONCE THE ASSESSEE HAS EXPLAINED TH E FACTS AND CIRCUMSTANCES AND CAUSE OF NONE APPEARANCE THEN IN THE INTEREST OF JUSTICE, WE ALLOW ONE MORE OPPORTUNITY OF HEARING T O THE ASSESSEE TO PRESENT HER CASE BEFORE THE LD. CIT(A). ACCORDINGLY , IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN THE INTERES T OF JUSTICE THE IMPUGNED ORDER OF THE LD. CIT(A) IS SET ASIDE AND T HE MATTER IS REMAND BACK TO THE RECORD OF THE LD. CIT(A) FOR AFRESH ADJ UDICATION AFTER GIVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. WE MAKE IT CLEAR THAT IF THE ASSESSEE FAILED TO APPEAR BEFORE THE LD. CIT(A) THE N THE OPPORTUNITY GRANTED BY US SHALL STAND VACATED. IN THE RESULT, THE APPEAL FILED BY THE ASSESSE E IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07/02/2020. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 07/02/2020. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. BEENA JAIN, KOTA. 2. IZR;FKHZ@ THE RESPONDENT- ACIT, CIRCLE-1, KOTA. ITA NO. 486/JP/2019 SMT. BEENA JAIN VS. ACIT 5 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 486/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR