M/s. Elegant Infraworld (P) Ltd., New Delhi V. ITO, Ghaziabad

ITA 5888/DEL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6724 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 03-11-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 30-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Assessee Lawyers: RAKESH GUPTA
• Keywords: Opportunity of being heard; Principle of natural justice; Benefit of exemption

Judgement Text

1 ITA NO. 5888/DEL/2015 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. SUDHANSHU SRIVAS TAVA, JM ITA NO.5888/DEL/2015 : ASSTT. YEAR : 2010-11 ELEGANT INFRAWORLD (P) LTD. C/O. M/S. RRA TAX INDIA, D-28, SOUTH EXTENSION, PART-1 NEW DELHI AABCE5689B VS ITO WARD-1(2) GHAZIABAD ASSESSEE BY : SH. RAKESH GUPTA, ADV & SH. SOMIL AGRAWAL, ADV REVENUE BY : SH. S. K. JAIN, D R DATE OF HEARING : 03.11.2016 DATE OF PRONOUNCEMENT : 07.11.2016 ORDER PER N. K. SAINI, AM: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 30/03/2015 PASSED BY CIT(A)-MUZAFFARNAGAR. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L. 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACT ION OF LD. AO IN MAKING DISALLOWANCE OF RS. 1,50,00,000/- ON ACCOUNT OF COS T OF IMPROVEMENT/TRANSFER EXPENSES/COST ON ACCOUNT OF SU RRENDER OF RIGHTS PAYABLE TO SH. ASHOK JAIN AND THAT TOO BY RECORDING INCORRECT FACTS AND FINDINGS AND WITHOUT GIVING ADEQUATE OPPORTUNITY OF HEARING AND WITHOUT CONSIDERING THE EVIDENCES AND SUBMISSIONS OF THE AS SESSEE. 2 ITA NO. 5888/DEL/2015 2. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, AC TION OF LD. CIT(A) IN CONFIRMING THE ACTION OF LD. AO IN MAKING DISALLOWA NCE OF RS. 1,50,00,000/- ON ACCOUNT OF COST OF IMPROVEMENT/TRANSFER EXPENSES /COST ON ACCOUNT OF SURRENDER OF RIGHTS PAYABLE TO SH. ASHOK JAIN IS BA D IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACT ION OF LD. AO IN DISALLOWING THE BENEFIT OF EXEMPTION TO THE TUNE OF RS.77,47,792/- TO THE ASSESSEE, BEING THE SURPLUS ON SALE OF AGRICULTURAL LAND. 4. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACT ION OF LD. AO IN MAKING AN AGGREGATE ADDITION OF RS.2,27,47,792/- AND THAT TOO BY TREATING THE SAME AS SHORT TERM CAPITAL GAIN AND THAT TOO IN THE YEAR UNDER APPEAL IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF T HE CASE AND HAS FURTHER ERRED IN HOLDING THAT THE TRANSFER OF THE IMPUGNED LAND TOOK PLACE IN THE YEAR UNDER APPEAL. 5. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANC ES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN REJECTING THE EVIDENCES FILED BY THE ASSESSEE AND THAT TOO WITHOUT ANY BASIS AND THE IMPUGNED ORDER H AS BEEN PASSED WITHOUT GRATING ADEQUATE OPPORTUNITY OF HEARING. 3. THE MAIN GRIEVANCE OF THE ASSESSEE VIDE GROUND N O. 5 RELATES TO THE ACTION OF THE LD.CIT(A) IN REJECTING THE EVIDENCE FILED BY THE ASSESSEE, WITHOUT GRANTING ADEQUATE OPPORTUNITY OF BEING HEARD. 4. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSEE FILED A RETURN OF INCOME ON 26/9/2010 DECLARING A LOSS OF RS.1,79,729/- WHIC H WAS PROCESSED AND SUBSEQUENTLY SELECTED FOR SCRUTINY. THE A.O MADE T HE ADDITION OF SHORT TERM CAPITAL GAIN OF RS. 2,27,47,792/-. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD.CIT(A) WHO PASSED EX-PARTE ORDER AND DID NOT ACCEPT THE CLAIM OF THE 3 ITA NO. 5888/DEL/2015 ASSESSEE THAT THE LAND WAS AGRICULTURAL LAND ON WH ICH SHORT TERM CAPITAL GAIN WAS WORKED OUT, WAS SOLD IN THE EARLIER YEAR. BEING AG GRIEVED THE ASSESSEE IS IN APPEAL. 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE FURNISHED VARIOUS DOCUMENTS IN SUPPORT OF ITS CLAIM THAT THE LAND IN QUESTION WAS AN AGRICULTURAL LAND AND SOLD IN THE EARLIER YEAR, THE REFORE, THE SHORT TERM CAPITAL GAIN WORKED OUT BY THE A.O WAS ON THE BASIS OF INCORRECT FACTS OF THE CASE. IT WAS FURTHER SUBMITTED THAT THE LD.CIT(A) WITHOUT PROVID ING DUE AND ADEQUATE OPPORTUNITY OF BEING HEARD DECIDED THE APPEAL OF TH E ASSESSEE EX-PARTE, SO THERE WAS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE. 6. IN HIS RIVAL SUBMISSIONS, THE LD. DR STRONGLY SU PPORTED THE IMPUGNED ORDER PASSED BY THE LD.CIT(A) AND SUBMITTED THAT THE ASSE SSEE FURNISHED ITS WRITTEN SUBMISSIONS WHICH WERE CONSIDERED BY THE LD.CIT(A) WHILE DECIDING THE APPEAL OF THE ASSESSEE. THEREFORE, THE VIEW TAKEN BY THE LD. CIT(A) DESERVES TO BE UPHELD. 7. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN T HE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE LD.CIT(A) DECIDED THE APPEAL OF THE ASSESSEE EX-PARTE AND REJECTED THE CLAIM MADE IN THE WRITTEN SUBMISSIONS. IN OUR OPINION AN OPPORTUNITY OF BEING HEARD WAS REQUIRED TO BE GIVEN TO THE ASSESSEE IF THE LD.CIT (A) WAS NOT SATISFIED WITH THE SUBMISSIONS MADE BEF ORE HIM, SO THERE WAS VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM. WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS DEEM IT APPRO PRIATE TO SET ASIDE THE IMPUGNED ORDER. ACCORDINGLY, AND THE MATTER IS REMANDED BAC K TO THE FILE OF THE LD.CIT(A) 4 ITA NO. 5888/DEL/2015 TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER P ROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 7/11/2016) SD/- SD/- (SUDHANSHU SRIVASTAVA) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT M EMBER DATED: 7/11/2016 *R.NAHEED* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI 5 ITA NO. 5888/DEL/2015 DATE INITIAL 1. DRAFT DICTATED ON 03.11.2016 PS 2. DRAFT PLACED BEFORE AUTHOR 03.11.2016 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 7.11.2016 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 7.11.2016 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. 6 ITA NO. 5888/DEL/2015