Sukhbiri Devi, Meerut V. ITO, Ward-2(5), Meerut

ITA 5007/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6150 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 17-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RANA
• Keywords: Capital asset; Opportunity of being heard
• Section: 271(1)(c); 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCHES (CAMP AT MEERUT) BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.5007/DEL./2018 (ASSESSMENT YEAR : 2012-13) SMT. SUKHBIRI DEVI, VS. ITO, WARD 2 (5), NOOR NAGAR, MEERUT. MEERUT. (PAN : AGLPT1885H) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VINOD KUMAR GOEL, ADVOCATE REVENUE BY : SHRI S.S. RANA, CIT DR DATE OF HEARING : 10.01.2019 DATE OF ORDER : 24.01.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, SMT. SUKHBIRI DEVI (HEREINAFTER REFE RRED TO AS THE ASSESSEE) BY FILING THE PRESENT APPEAL, SOUGH T TO SET ASIDE THE IMPUGNED ORDER DATED 17.05.2018 PASSED BY LD. CIT (APPEALS), MEERUT QUA THE ASSESSMENT YEAR 2012-13 ON THE GROUN DS INTER ALIA THAT :- 1. THAT THE LD. CIT(A) IS IN ERROR IN HOLDING THAT THE ORDER PASSED BY THE A.O. IS VALIDLY SERVED UPON THE ASSES SEE ON 27.12.2016 THROUGH SPEED POST. HOWEVER, IN VILLAGE - NOOR NAGAR FACILITY OF SPEED POST WAS NOT AVAILABLE AND THE ASSESSEE OBTAINED THE CERTIFIED COPY OF THE ORDER ON 15.03.2 018 AND APPEAL ITA NO.5007/DEL./2018 2 WAS FILED ON 05.04.2018. THEREFORE, THERE IS NO DEL AY AND CIT(A) HAS NOT JUSTIFIED TO PASS AN ORDER BLEEDING FOR CON DONATION OF DELAY OF APPEAL. 2. THAT THE A.O. HAS STATED THAT THE NOTICE WAS SER VED U/S 271(1)(C) ON 15.12.2016 THROUGH NOTICE SERVER WHICH WAS REFUSED BY THE ASSESSEE. IT IS A MATTER OF SURPRISE THAT WH EN THE A.O. SERVED THE ASSESSMENT ORDER THROUGH SPEED POST THAN HOW HE SEND THE NOTICE DATED 15-12-2016 THROUGH NOTICE SERVER. 3. THAT THE A.O. HAS COMPUTED LONG TERM CAPITAL GAI N OF RS.16,44,000/- HOWEVER, THE ASSESSEE HAS PURCHASED AGRICULTURE LAND OF RS. 15,58,910/-- IN HIS NAME AND AGRICULTUR E LAND OF RS.2,37,940/- IN THE NAME OF HER HUSBAND AND THE PR OVISION OF SECTION 548 IS NOT PROVIDED BY THE A.O .. CIT(A) AL SO IS IN ERROR IN CONFIRMING THE SAME. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE CONTROVERSY AT HAND ARE : ASSESSING OFFICER COMPLET ED ASSESSMENT UNDER SECTION 144/147 OF THE INCOME-TAX ACT, 1961 ( FOR SHORT THE ACT) BY MAKING ADDITION OF RS.16,44,000/- ON ACCOU NT OF LONG TERM CAPITAL GAIN ON THE GROUND THAT THE ASSESSEE H AS NOT COME UP DESPITE SERVICE AND HAS THUS FAILED TO EXPLAIN THE INCURRENCE OF SALE PROCEEDS ON TRANSFER OF LAND FOR SALE CONSIDERATION OF RS.58,77,000/-. 3. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (APPEALS) WHO HAS DISMISSED THE APPEAL IN L IMINE BY NOT CONDONING THE DELAY IN FILING THE APPEAL AND ALSO B Y REJECTING THE APPLICATION MOVED BY THE ASSESSEE UNDER RULE 46A OF THE INCOME- ITA NO.5007/DEL./2018 3 TAX RULES, 1962. FEELING AGGRIEVED, THE ASSESSEE H AS COME UP BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT AP PEAL. 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. IT IS THE CATEGORIC CASE OF THE ASSESSEE THAT AF TER SALE OF LAND BY THE ASSESSEE, SHE HAS PURCHASED AGRICULTURAL LAN D VIDE SALE DEED DATED 20.12.2011, 05.07.2012 AND 19.03.2012 FOR A S ALE CONSIDERATION OF RS.8,00,000/-, RS.15,00,000/- AND RS.5,00,000/-, COPY OF SALE DEED PLACED AT PAGES 26, 4 AND 14 OF T HE PAPER BOOK RESPECTIVELY, AND HAS FURTHER PURCHASED THE LAND ON 19.09.2012 FOR A SALE CONSIDERATION OF RS.2,00,000/-, COPY AVAILAB LE AT PAGE 26 OF THE PAPER BOOK, IN THE NAME OF HER HUSBAND BUT SHE HAS NOT BEEN PROVIDED AN OPPORTUNITY OF BEING HEARD BY THE AO AS WELL AS LD. CIT (A). 6. NO DOUBT, AO HAS ISSUED NOTICE U/S 148 OF THE AC T ON 11.05.2015 STATED TO BE SERVED UPON THE ASSESSEE BU T PROCEEDED TO FRAME THE ASSESSMENT U/S 144 OF THE ACT ON THE SOLE GROUND THAT LIMITATION FOR COMPLETION OF ASSESSMENT EXPIRES ON 31.12.2016. WHEN FIRST NOTICE ISSUED ON 11.05.2015 BY THE AO HE WAS HAVING 7 MONTHS TO ISSUE ANOTHER NOTICE TO PROCURE THE PRE SENCE OF THE ITA NO.5007/DEL./2018 4 ASSESSEE SO AS TO PROVIDE ADEQUATE OPPORTUNITY OF BEING HEARD BUT HE HAS NOT PREFERRED TO DO SO RATHER SUMMARILY FRAM ED THE ASSESSMENT U/S 144 OF THE ACT BY MAKING ADDITION ON THE LONG TERM CAPITAL GAIN TO THE TUNE OF RS16,44,000/-. 7. EVEN LD. CIT (A) HAS NOT PROVIDED ADEQUATE OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE RATHER DISMISSED THE AP PEAL IN LIMINE BY DISMISSING THE APPLICATION MOVED BY THE ASSESSEE UN DER RULE 46A OF THE RULES. IN THESE CIRCUMSTANCES, WE ARE OF TH E CONSIDERED VIEW THAT WHEN THE ASSESSEE HAS COME UP WITH COGENT EXPLANATION THAT WITHIN 2 YEARS OF SALE OF THE LAND BY HER, SHE HAS FURTHER PURCHASED THE LAND IN HER NAME AS WELL AS IN THE NA ME OF HER HUSBAND, THE ADDITION IS NOT SUSTAINABLE AND THE AS SESSEE IS REQUIRED TO BE PROVIDED WITH ADEQUATE OPPORTUNITY OF BEING H EARD. SO, IN THESE CIRCUMSTANCES, TO MEET THE ENDS OF JUSTICE, T HE CASE IS SET ASIDE TO THE AO TO DECIDE AFRESH AFTER PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. CONSEQUENTLY, THE APP EAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 24 TH DAY OF JANUARY, 2019. SD/- SD/- (N.S. SAINI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 24 TH DAY OF JANUARY , 2019/TS ITA NO.5007/DEL./2018 5 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), MEERUT. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.