SATYAVEER SINGH, Gautam Budh Nagar V. ITO, WARD- 3(3), NOIDA

ITA 5251/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7433 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 06-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Capital asset; Principle of natural justice; Condonation of delay
• Section: 2(14); 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SHRI N.S. SAINI , ACCOUNTANT MEMBER ITA NO. 52 51 / DEL/201 8 ASSESSMENT YEAR: 20 1 0 - 1 1 SHRI SATYAVEER SINGH VILLAGE DURYAI, POST KACHERA ( V ERSABAD), TEHSI L - DADRI, GAUTAM BUDH NAGAR (U.P.) 201301 VS ITO, WARD 3 (3), NOIDA (U.P.) (APPELLANT) (RESPONDENT) APPELLANT BY SH. ANOOP SHARMA, ADVOCATE RESPONDENT BY SH. S. L. ANURAGI, SR. DR DATE OF HEARING: 1 5 /0 1 /201 9 DATE OF PRONOUNCEMENT: 16 / 0 1/ 201 9 ORDER PER N. S . SAINI AM: 1. TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER CIT(A) - 1 , NOIDA DATED 2 8 .0 3 .2018 FOR THE A. Y. 20 1 0 - 1 1 . 2. THE ASSESSEE HAS RAISED FOLLOWING GROUND OF APPEAL : - 1 . THAT THE LD. CIT(A) - I, ERRED IN LAW, O N FACTS AND IN SURROUNDING CIRCUMSTANCES IN DISMISSING THE APPEAL IN EX - PARTE, ARBITRARY AND ILLUSORY MANNER VIDE BRIEFLY, WORDED IMPUGNED APPELLATE ORDER DATED 28 - 03 - 2018, MERELY ON HIS OWN ASSUMPTION, PRESUMPTION, IMAGINATION SURMISES AND CONJECTURES LEA DING TO TRAVESTY OF NATURAL JUSTICE AND EQUITY TO THE HAPLESS APPELLANT. 2 . THAT THE LD. CIT(A) - I, ERRED IN LAW, ON FACTS AND IN SURROUNDING CIRCUMSTANCES IN FAILING TO APPRECIATE THAT VALID SERVICE OF NOTICE IS A MANDATORY PRE - CONDITION FOR DISMISSAL OF APP EAL FOR WANT OF PROSECUTION . 3 . THAT THE LD. CIT(A) - I ALSO ERRED IN LAW, ON FACTS AND IN THE SURROUNDING CIRCUMSTANCES IN FAILING TO APPRECIATE THE HUMANE ASPECT OF THE MATTER THAT A PRUDENT LITIGANT PERSON, HAVING HUGE TAX LIABILITY WOULD NEVER 2 BE NEGLIGE NT IN PROSECUTION OF HIS APPEALS, THEREBY LEADING THE OBSERVATIONS OF LD. CIT(A) - I, BEING BASED ON HIS SELF IMAGINATION AND SPECULATION IN NATURE HAVING NO LEGAL SANCTITY. 4 . THAT THE LD. CIT(A) - I, ALSO ERRED IN LAW, ON FACTS AND SURROUNDING CIRCUMSTANCES, I N FAILING TO DISCUSS THE CASE EVEN ON MERITS IN THE LIGHT OF STRONG GROUNDS OF APPEAL, THEREBY LEADING TO MISCARRIAGE OF EQUITY AND NATURAL JUSTICE. 5 . THAT WITHOUT PREJUDICE TO ABOVE, EVEN ON MERITS TOO, VILLAGE DURYAI, BEING MORE THAN 8KM. FROM TEHSILDAR, THE AGRICULTURE LAND IS NOT A CAPITAL ASSET U/S 2(14) OF I.T. ACT, AS HELP BY LD. A.O. CONCERNED IN THE CASE OF HIS BROTHER SHRI DHARAM SINGH AND ON THE SAME ANALOGY, NO CAPITAL GAIN TAXABILITY ARISES IN THE INSTANT APPEAL. 6 . THAT SINCE THE IMPUGNED APPELLA TE ORDER WAS NEVER DELIVERED TO THE APPELLANT, THE APPEAL COULD NOT BE FILED WITHIN THE PRESCRIBED PERIOD. IT IS ONLY AFTER OBTAINING CERTIFIED COPY OF APPELLATE ORDER THE APPELLANT HAS BEEN ABLE TO FILE THE APPEAL THOUGH BELATEDLY AND FOR WHICH, AN APPLIC ATION FOR CONDONATION OF DELAY WILL BE FILED AT THE TIME OF HEARING OF APPEAL. 7 . THAT WITHOUT PREJUDICE TO ABOVE, SINCE THE APPELLANT HAVING RURAL BACKGROUND WITH ZERO KNOWLEDGE OF I.T. LAW, COULD NOT PURSUE HIS CASE AT ASSESSMENT AND APPELLATE LEVEL IN THE ABSENCE OF VALID SERVICE OF NOTICES. CONSEQUENTLY HE WAS DEPRIVED BY SUFFICIENT CAUSE FROM PRODUCING CLINCHING EVIDENCE. IT IS HUMBLY PRAYED THAT THE MATTER MAY KINDLY BE REMANDED TO LD. A.O. FOR FRESH ADJUDICATION ON THE BASIS OF EVIDENCE AVAILABLE WITH THE APPELLANT. 8 . THAT THE APPELLANT CRAVES LEAVE TO MODIFY/AMEND OR ADD ANY ONE OR MORE GROUNDS. 3 . AT THE OUTSET THE AR OF THE ASSESSEE SUBMITTED THAT APPEAL OF THE ASSESSEE WAS DISMISSED BY THE CIT(A) ON THE GROUND THAT THE ASSESSEE FAILED TO PUT IN APPE ARANCE ON THE DATES OF HEARING FIXED ON 13.03.2018 AND 26.03.2018 FOR WANT OF PROSECUTION. HE SUBMITTED THAT THE ASSESSEE COULD NOT APPEAR BEFORE THE ASSESSING OFFICER ALSO AND THEREFORE, THE ORDER H AS PASSED BY HIM U/S 147 OF THE ACT R/W SECTION 144 OF T HE ACT. 3 4. HE SUBMITTED THAT ONE MORE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE FOR P LEADING HIS CASE AND THE MATTER BE RESTORED BACK TO THE FILE OF THE CIT(APPEALS). 5. THE LD. DR VEHEMENTLY OPPOSED THE SUBMISSIONS OF THE LD. AR OF THE ASSESSEE. 6. AFTER CONSIDERING THE RIVAL SUBMISSION AND PERUSING THE MATERIAL AVAILABLE ON RECORD , I FIND THAT THE HEARING OF THE APPEAL O F THE ASSE S S EE WAS FIXED BY THE CIT(A) TWICE ONCE ON 13.03.2018 AND AGAIN ON 26.03.2018 . T HE CONTENTION OF THE AR OF THE ASSES SEE IS THAT HE HAS NOT RECEIVED THE NOTICE OF HEARING SENT BY THE CIT(A). THE CIT(A) THOUGH MENTIONS ABOUT THE DATES OF HEARING BUT DOES NOT SAY ANYTHING IN HIS ORDER ABOUT THE SERVICE OF NOTICE OF HEARING ON THE ASSESSEE. THUS, THE CIT(APPEALS) IN MY CO NSIDERED OPINION WAS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE. 7. FURTHER IT IS THE DUTY OF THE CIT(A) TO NOT TO DISMISS THE APPEAL OF THE ASSESSEE WHERE THE ASSESSEE FAILS TO PUT IN APPEARANCE ON THE DATES OF HEARING FIXED BY HIM . H E SHOUL D DISPOS E OF THE APPEAL OF THE ASSESSEE ON MERITS ON THE GROUNDS RAISED BY THE ASSESSEE ON THE BASIS OF MATERIALS AVAILABLE ON RECORD SO THAT THE ASSESSEE CAN MEET HIS CASE BEFORE HIGHER FORM. THUS, I SET ASIDE THE ORDER OF THE CIT(A) AND REMAND THE MATTER BACK TO HIS FILE TO ADJUDICATE THE APPEAL OF THE ASSESSEE AFRESH AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 8. IN THE RESULT, THE APPEAL OF THE ASSE SSEE IS ALLOWED FOR STATISTICAL PURPOSE. 4 ORDER PRONOUNCED IN THE OPEN COURT ON 16 .01.2019 SD/ - ( N. S . SAINI) ACCOUNTANT MEMBER DATED: 16 . 0 1 . 201 9 . *NEHA* COPY OF ORDER TO : - 1 ) THE APPELLANT 2 ) THE RESPONDENT 3 ) THE CIT 4 ) TH E CIT(A) 5 ) THE DR, I.T.A.T., NEW DELHI ASSISTANT REGISTRAR ITAT , NEW DELHI DATE OF DICTATION 1 5 .01.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 16.01.2019 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER