Raisa Salim Khan, Nashik V. Assistant Commissioner of Income-tax,

ITA 7/PUN/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0382 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 05-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , , !'#'' $ , % & BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 07/PN/2015 %' ( ')( / ASSESSMENT YEAR : 2011-12 RAISA SALIM KHAN, NAMIRA HOUSE, PAKHAL ROAD, OPP. NASHIK WAPI TRANSPORT, DWARKA, NASHIK 422011 PAN : AIIPK5012C ....... / APPELLANT ' /VS. ASSTT. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1, NASHIK / RESPONDENT ASSESSEE BY : SHRI PRAMOD SHINGTE REVENUE BY : SHRI HITENDRA NINAWE / DATE OF HEARING : 24-11-2016 / DATE OF PRONOUNCEMENT : 25-11-2016 * / ORDER PER VIKAS AWASTHY, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDE R OF COMMISSIONER OF INCOME TAX (APPEALS)-I, NASHIK DATED 31-10 -2014 FOR THE ASSESSMENT YEAR 2011-12. 2 ITA NO. 07/PN/2015, A.Y. 2011-12 THE COMMISSIONER OF INCOME TAX (APPEALS) HAS DISMISSED THE APPEAL OF THE ASSESSEE IN AN EX-PARTE PROCEEDINGS AND H AS CONFIRMED THE ADDITION OF ` 12,07,876/- ON ACCOUNT OF LONG TERM CAPITAL GAINS. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORD S ARE: THE ASSESSEE IS A PARTNER IN THE FIRM M/S. HOTEL RISA, NASHIK. T HE ASSESSEE FILED HIS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YE AR ON 23-02-2013 DECLARING TOTAL INCOME OF ` 50,32,210/-. THE PARTNERSHIP FIRM M/S. HOTEL RISA WAS DISSOLVED AND THE ASSESSEE DISPOSE D OF ALL THE ASSETS RECEIVED ON ACCOUNT OF DISSOLUTION OF THE PARTNERS HIP FIRM FOR A CONSIDERATION OF ` 82 LACS AND OFFERED THE GAINS ARISING THEREFROM AS LONG TERM CAPITAL GAIN ` 50,32,206/- FOR TAXATION. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER M ADE FURTHER ADDITION OF ` 12,07,876/- ON ACCOUNT OF LONG TERM CAPITAL GAINS. AGGRIEVED BY THE ASSESSMENT ORDER DATED 20-01-2014, T HE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE COMMISS IONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPE ALS) VIDE IMPUGNED ORDER DISMISSED THE APPEAL OF THE ASSESSEE IN AN EX-PARTE PROCEEDINGS. 3. SHRI PRAMOD SHINGTE APPEARING ON BEHALF OF THE ASSESSE E SUBMITTED THAT THE ASSESSEE COULD NOT APPEAR BEFORE TH E COMMISSIONER OF INCOME TAX (APPEALS) ON ACCOUNT OF MEDICAL EXIGENCIES. TH E LD. AR FILED MEDICAL CERTIFICATE OF THE ASSESSEE IN SUPPORT OF HIS CON TENTIONS. THE LD. AR SUBMITTED THAT IF THE MATTER IS REMITTED BACK TO THE COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE WOULD BE ABLE TO SHOW THAT THE ADDITION MADE BY THE ASSESSING OFFICER IS UNWARRANTED. 3 ITA NO. 07/PN/2015, A.Y. 2011-12 4. ON THE OTHER HAND SHRI HITENDRA NINAWE REPRESENTING THE DEPARTMENT SUBMITTED THAT THE ASSESSEE DELIBERATELY DID NOT APPEAR BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THREE NOT ICES WERE ISSUED TO THE ASSESSEE WHICH WERE DULY SERVED. BEFORE THE FIRST APPELLATE AUTHORITY NEITHER THE ASSESSEE NOR THE AUTHOR IZED REPRESENTATIVE OF THE ASSESSEE APPEARED ON ANY OF THE THREE DAYS. ON TWO OCCASIONS THERE WAS NO RESPONSE FROM THE ASSESSEE AT ALL AND ON ONE DATE THE ASSESSEE FILED ADJOURNMENT LETTER. THE ASS ESSEE HAS BEEN NEGLIGENT IN PURSUING HIS CASE BEFORE THE COMMISSIONER OF IN COME TAX (APPEALS). 5. BOTH SIDES HEARD. THE ORDERS OF THE AUTHORITIES BELOW PERUSED. A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THE ORDER HAS BEEN PASSED IN AN EX-PARTE PROCEEDINGS. IT HAS BEEN CONTENDED THAT THE ASS ESSEE COULD NOT APPEAR BEFORE THE COMMISSIONER OF INCOME TAX (APPEAL S) ON ACCOUNT OF PROLONGED ILLNESS. MEDICAL CERTIFICATE HAS BEEN PLA CED ON RECORD TO SHOW THAT THE ASSESSEE WAS ADVISED BED REST DURING T HE PERIOD THE APPEAL WAS LISTED FOR HEARING ON 20-10-2014 AND 29-1 0-2014 BEFORE COMMISSIONER OF INCOME TAX (APPEALS). WE ARE OF THE CONSI DERED VIEW THAT IN THE INTEREST OF JUSTICE OPPORTUNITY SHOULD BE GRA NTED TO THE ASSESSEE TO PLEAD HIS CASE EFFECTIVELY BEFORE THE FIRST AP PELLATE AUTHORITY. ACCORDINGLY, THE IMPUGNED ORDER IS SET ASIDE A ND THE APPEAL IS REMITTED BACK TO THE FILE OF COMMISSIONER OF INCOME TAX (A PPEALS) FOR FRESH ADJUDICATION. THE COMMISSIONER OF INCOME TAX (APPEALS ) SHALL DECIDE THE APPEAL AFTER AFFORDING SUFFICIENT OPPORTUNITY OF HEA RING TO THE ASSESSEE, IN ACCORDANCE WITH LAW. 4 ITA NO. 07/PN/2015, A.Y. 2011-12 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON FRIDAY, THE 25 TH DAY OF NOVEMBER, 2016. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 25 TH NOVEMBER, 2016 RK *+,%-.#/#)- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-I, NASHIK 4. ' / THE CIT-I, NASHIK 5. !*+ %%,- , ,- , . ./0 , / DR, ITAT, B BENCH, PUNE. 6. + 1 23 / GUARD FILE. // ! % // TRUE COPY// #4 / BY ORDER, %5 ,0 / PRIVATE SECRETARY, ,- , / ITAT, PUNE