Shri Rajeev Kumar, Kanpur V. Income Tax Officer- 2(3), Kanpur

ITA 548/LKW/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100473 (ITAT-LUCKNOW)
• Duration Of Justice: 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 09-11-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 07-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Principle of natural justice; Non compliance
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.548/LKW/2015 ASSESSMENT YEAR:2007-08 SHRI. RAJEEV KUMAR C/O B.L. KESWARWANI & CO. 55/29, SEHGAL MARKET KAHU KOTHI, KANPUR V. INCOME TAX OFFICER 2(3) KANPUR TAN/PAN:ADJPK2363E (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. RAKESH GARG, ADVOCATE RESPONDENT BY: SHRI. AMIT NIGAM, D.R. DATE OF HEARING: 09 11 2015 DATE OF PRONOUNCEMENT: 18 11 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS:- 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (A)-II, DEHRADUN (CONCURRENT CHARGE OF CIT(A)-II, KANPUR) CAMP AT KANPUR HAS BEEN WRONG IN LAW ON FACTS AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE IN CONFIRMING THE FOLLOWING ADDITIONS BY DISMISSING THE APPEAL FOR NON COMPLIANCE OF NOTICE U/S 250 OF THE INCOME TAX ACT, 1961. :- 2 -: RS.302935/- BEING SHORT TERM CAPITAL GAIN OF SAFE OF PLOT. RS.20000/- BEING TOW WITHDRAWALS FOR HOUSE HOLD EXPENSES. 2. THAT THE ADDITION OF RS.302935/- MADE BY THE LEARNED ASSESSING OFFICER BEING SHORT TERM CAPITAL GAIN ON PURCHASE AND SALE OF PLOT WITHIN SHORT PERIOD I.E. 8 DAYS ONLY BY INVOKING THE PROVISIONS OF SECTION 50C OF THE INCOME TAX ACT, 1961 WITHOUT CONSIDERING THE REAL FACTS OF THE CASE AND REFERRING THE MATTER TO DISTRICT VALUATION OFFICER AND SUSTAINED BY THE LEARNED COMMISSIONER OF INCOME TAX (A)-II, DEHRADUN (CONCURRENT CHARGE OF CIT(A)-II, KANPUR) IS UNJUSTIFIED, ARBITRARY. 3. THAT THE ADDITION OF RS.20,000/- MADE BY THE LEARNED ASSESSING OFFICER BEING LOW WITHDRAWALS FOR HOUSE HOLD EXPENSES AND CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX (A)-II, DEHRADUN (CONCURRENT CHARGE OF CIT(A)-II, KANPUR) IS UNJUSTIFIED AND ARBITRARY. 4. THAT THE SAME VALUE SHOULD HAVE BEEN ADOPTED FOR PURCHASE AND SALE I.E. EITHER THE ACTUAL COST PRICE AND SALE PRICE OR THE CIRCLE RATE U/S 50C OF THE INCOME TAX ACT, 1961 IN THE FACTS AND CIRCUMSTANCE OF THE CASE. 5. THAT THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (A)-II, DEHRADUN (CONCURRENT CHARGE OF CIT(A)-II, KANPUR) IS BAD IN LAW, ON FACTS AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDER OF THE LD. CIT(A) WITH THE SUBMISSION THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL EX-PARTE WITHOUT DEALING :- 3 -: WITH THE ISSUES ON MERIT WHEREAS AS PER LAW THE LD. CIT(A) OUGHT TO HAVE ADJUDICATED THE APPEAL ON MERIT EVEN IF THE ASSESSEE DOES NOT APPEAR. THEREFORE, IN THE INTEREST OF JUSTICE, THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THE MATTER MAY BE RESTORED TO HIS FILE FOR ADJUDICATION OF THE APPEAL ON MERIT. 3. THE LD. D.R. HAS ALSO AGREED TO THIS SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE, AS THE LD. CIT(A) HAS NOT DISPOSED OF THE APPEAL ON MERIT. 4. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE LD. CIT(A) HAS REPRODUCED THE GROUNDS RAISED BY THE ASSESSEE AND IN FEW LINES HE DISMISSED THE APPEAL OF THE ASSESSEE WITHOUT DEALING WITH THE ISSUES ON MERIT. FOR THE SAKE OF REFERENCE, WE EXTRACT THE FINDINGS OF THE LD. CIT(A) AS UNDER:- 3.0 IN THIS CASE A 'FINAL OPPORTUNITY' NOTICE SENT FROM THIS OFFICE HAS COME BACK UNSERVED INDICATING THAT THE APPELLANT DOES NOT RESIDE AT THE ADDRESS MENTIONED IN THE FORM OF APPEAL. THIS IMPLIES THAT THE APPELLANT IS NO LONGER SERIOUS ABOUT PURSUING THIS MATTER ANY FURTHER. ACCORDINGLY, THIS APPEAL IS DECIDED AGAINST THE APPELLANT SINCE THERE IS NO MATERIAL AVAILABLE ON THE BASIS OF WHICH A CONTRARY VIEW CAN BE TAKEN ON THE LD. AO'S FINDINGS. 4.0. IN THE RESULT, THIS APPEAL IS DISMISSED. 5. IN VIEW OF THE ABOVE FACTS, WE ARE OF THE VIEW THAT SINCE THE LD. CIT(A) HAS NOT DISPOSED OF THE APPEAL ON MERIT, HIS ORDER DESERVES TO BE SET ASIDE AND WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO RE-ADJUDICATE THE APPEAL AFRESH AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. :- 4 -: 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED:18 TH NOVEMBER, 2015 JJ:1611 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR