Avdhesh Kumar, Ghaziabad V. DCIT, Circle-1, Ghaziabad

ITA 5368/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3121 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 21-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R MISHRA
• Keywords: Sale consideration of property below Jantri Value; Principle of natural justice; Reasonable cause
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO.5368/DEL/2017 ASSESSMENT YEAR : 2013-14 AVDHESH KUMAR, S/O SRI KALU RAM, YAKUTPUR MAVI, NIWARI ROAD, MODI NAGAR, MODINAGAR, UTTAR PRADESH. VS. DCIT, CIRCLE-1, GHAZIABAD. PAN : AQCPK7351E (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ANOOP SHARMA, ADV. SHRI SANJAY PARASHAR, ADV. DEPARTMENT BY : SHRI B. R. MISHRA, SR.DR DATE OF HEARING : 15-02-2018 DATE OF PRONOUNCEMENT : 28-02-2018 O R D E R PER R. K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 24.05.2017 OF CIT(A), GHAZIABAD RELATING TO ASSESSM ENT YEAR 2013-14. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER :- 1. THAT THE ORDER OF LD. CIT(A) DATED 24-05-2017, PASSED WITHOUT HEARING THE ASSESSEE, SHOULD BE SET ASIDE ON GROUNDS OF NATURAL JUSTICE. 2. THAT THE ABOVE ORDER WAS MADE EX-PARTE AS THE AS SESSEE WAS PREVENTED BY REASONABLE CAUSE FOR NOT APPEARING BEFORE THE LD. C IT(A). 3. THAT THE ORDER OF CIT(A) FOR DISMISSING THE APPE AL FOR NON PROSECUTION AS WELL AS ON MERITS, ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE, DESERVES TO BE SET ASIDE. 4. THAT THE ASSET IN QUESTION BEING SUBJECT MATTER OF CAPITAL GAIN IS AN EXEMPTED ASSET NAMELY AGRICULTURAL LAND NOT LIABLE FOR ANY T AXATION, HENCE NO ADDITION IS CALLED FOR. 5. THAT ON THE FACT AND CIRCUMSTANCES OF THE CASE, IN LAW AND IN VIEW OF SECTION 50C OF I.T. ACT AND EVEN OTHERWISE ADOPTING OF THE SALE PRICE AT RS.11613000 FOR THE LAND IN QUESTION ON THE BASIS OF ALLEGED CIRCLE RAT E IS BAD IN LAW, IT SHOULD BE RS.9613000 AS MENTIONED IN THE SALE DEED. 2 ITA NO.5368/DEL/2017 6. THAT WITHOUT PREJUDICE TO THE ABOVE, NO TAX IS L IABLE IN LAW ON THE DIFFERENCE BETWEEN THE SALE PRICE AND THE COST PRICE OF THE LA ND, THOUGH WRONGLY RETURNED BY THE ASSESSEE. 7. THAT THE APPELLANT CRAVES LEAVE TO MODIFY/AMEND OR ADD ANY ONE OR MORE GROUNDS. 3. AFTER HEARING BOTH THE SIDES, I FIND THE ASSESSE E IS AN INDIVIDUAL AND RETIRED FROM INDIAN ARMY IN 1996. THE ASSESSEE FIL ED HIS RETURN OF INCOME ON 30.11.2013 DECLARING INCOME AT RS.21,93,310/-. DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS STARTED A SMALL BUSINESS OF DISTRIBUTORSHIP OF VESTIGE MARKETING PRIVATE LIMITE D AND FARMING ON HIS PATERNAL LAND. APART FROM THAT THE ASSESSEE DERIVE D PENSION FROM INDIAN ARMY. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSING OFFICER OBSERVED THAT THE ASSESSEE HAS SOLD AN AGRICULTURAL LAND FOR RS.96,30,000/- TO M/S OMKAR NEST PRIVATE LIMITED WHICH WAS PURCHASED BY HIM AT RS.20,43,000/- ON 20.05.2012. THE ASSESSING OFFICER OBSERVED THAT TH E VALUE OF THE PROPERTY ACCORDING TO CIRCLE RATE IS RS.1,16,13,000/-. HE, THEREFORE, APPLYING THE PROVISIONS OF SECTION 50C MADE AN ADDITION OF RS.19 ,83,000/- TO THE INCOME OF THE ASSESSEE. 4. SINCE NONE APPEARED BEFORE THE LD. CIT(A), HE DE CIDED THE APPEAL EX- PARTE AND SUSTAINED THE ADDITION MADE BY THE ASSESS ING OFFICER. 5. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 3 ITA NO.5368/DEL/2017 6. I HAVE HEARD THE RIVAL ARGUMENTS MADE BY BOTH TH E SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS AN ADMITTED FA CT THAT DESPITE ISSUE OF NOTICE, THE ASSESSEE DID NOT APPEAR BEFORE THE LD. CIT(A) F OR WHICH HE PASSED THE EX- PARTE ORDER SUSTAINING THE ADDITION MADE BY THE ASS ESSING OFFICER. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE IN TEREST OF JUSTICE, I DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO GIVE ONE FINAL OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE HIS CAS E. LD. CIT(A) SHALL DECIDE THE ISSUE AS PER FACT AND LAW AFTER GIVING DUE OPPORTUN ITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO HEREBY DIRECTED TO APPEAR BEFORE THE LD. CIT(A) AND NOT TO SEEK ANY ADJOURNMENT FAILING WHICH LD. C IT(A) IS AT LIBERTY TO PASS APPROPRIATE ORDER AS PER LAW. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH FEBRUARY, 2018. SD/- (R. K. PANDA) ACCOUNTANT MEMBER DATED: 28-02-2018. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, NEW DELHI