Vinay Arora, New Delhi V. ITO WARD - 44(7), New Delhi

ITA 739/DEL/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0713 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2016-2017
• Appeal Filed On: 10-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANGAD PAL
• Keywords: Opportunity of being heard; Principle of natural justice; Tax effect; Set aside
• Section: 54F; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: SMC-2 NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER [THROUGH VIDEO CONFERENCING] ITA NO.739/DEL/2020 ASSESSMENT YEAR: 2016-17 SH. VINAY ARORA, 326, BHERA ENCLAVE, NEW DELHI VS. ITO, WARD-44(7), NEW DELHI PAN :AFOPA3108G (APPELLANT) (RESPONDENT) ORDER PER O.P. KANT, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST OR DER DATED 31/12/2019 PASSED BY THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS)-43, NEW DELHI [IN SHORT THE LD. CIT(A)] FOR ASSESSMENT YEAR 2016-17 RAISING FOLLOWING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [C IT(A)] IS BAD IN LAW AND ON FACTS. 2. THE LEARNED CIT(A) HAS ERRED ON FACTS, BY DISMI SSING THE APPEAL ON GROUNDS OF NON-COMPLIANCE WITHOUT CONSIDERING TH E RESPONSE APPELLANT BY SH. ANGAD PAL, CA RESPONDENT BY SH. R.K. GUPTA, SR.DR DATE OF HEARING 01.07.2021 DATE OF PRONOUNCEMENT 01.07.2021 2 ITA NO.739/DEL/2020 ELECTRONICALLY FILED BY THE ASSESSEE ON 30.10.2019 WITH ALL THE SUPPORTING DOCUMENTS THROUGH ITBA APPLICATION AVAIL ABLE IN THE INCOME TAX EFILING PORTAL VIDE DOCUMENT ID 10000003 2345823 AGAINST THE NOTICE NO. ITBA/APL/S/APL_1/2019- 20/1019011249(1) FOR HEARING U/S 250 SERVED ON 17.1 0.2019 BY LEARNED CIT(A) VIA THE SAME PORTAL. (TOTAL TAX EFFE CT RS. 43,75,995). 3. THE LEARNED CIT(A) HAS ERRED ON LAW BY NOT CONS IDERING THE MERITS OF THE GROUNDS OF APPEAL FILED SUPPORTED BY DOCUMEN TS AVAILABLE IN THE RECORDS OF THE LEARNED AO AS WELL AS FILED W ITH THE LEARNED CIT(A). 4. LEARNED CIT(A) HAS ERRED IN ALLOWING THE ADDITI ON MADE BY LEARNED AO ON ACCOUNT OF CAPITAL GAIN OF RS. 79,41, 284 ON SALE OF PROPERTY LOCATED I-888, PALAM VIHAR WITHOUT ALLOWIN G THE DEDUCTION UNDER SECTION 54F ON ACCOUNT OF NEW RESID ENTIAL PROPERTY LOCATED A-1/12, ROOF TERRACE OF SECOND FLO OR, PASCHIM VIHAR, PURCHASED BY THE APPELLANT IN THE SAME FINAN CIAL YEAR FOR A CONSIDERATION AMOUNTING TO RS. 1,06,80,000, WHOSE S ALE DEED HAS BEEN PROVIDED BY THE APPELLANT AND IS AVAILABLE IN THE RECORDS OF THE LEARNED AO AS WELL AS FILED WITH THE LEARNED CI T(A). (STANDALONE TAX EFFECT RS. 21,35,144). 5. LEARNED CIT(A) HAS ERRED IN ALLOWING THE ADDITI ON MADE BY LEARNED AO ON ACCOUNT OF CAPITAL GAIN OF RS. 18,54, 606 ON SALE OF PROPERTY LOCATED 431, BHERA ENCLAVE WITHOUT ALLOWIN G THE STAMP DUTY OF RS. 60,000 PAID BY THE APPELLANT TO ACQUIRE THE PROPERTY WHICH IS MENTIONED APPARENTLY ON THE DEED PROVIDED BY THE APPELLANT AND IS AVAILABLE IN THE RECORDS OF THE LE ARNED AO AS WELL AS FILED WITH THE LEARNED CIT(A). (STANDALONE TAX E FFECT RS. 12,046) 6. THE LEARNED CIT(A) HAS ERRED IN ALLOWING THE AD DITION MADE BY LEARNED AO OF RS. 69,47,800 AS UNEXPLAINED INVESTME NTS ON THE BASIS OF INCORRECT INFORMATION OF PURCHASE OF PROPE RTY LOCATED A- 1/12, FIRST FLOOR, PASCHIM VIHAR FOR RS. 1,21,75,00 0 WHEREAS THE DEED IN POSSESSION OF THE LEARNED AO AND ALSO FILED WITH CIT(A) CLEARLY MENTIONS THE NAMES OF OTHER PERSONS AS BUYE RS. (STANDALONE TAX EFFECT RS. 23,95,495) 7. THE LEARNED CIT(A) HAS ERRED IN ALLOWING THE AD DITION MADE BY LEARNED AO ON ACCOUNT OF DEEMED RENT ON THE PROPERT Y THAT HAS BEEN PURCHASED DURING THE FINANCIAL YEAR ITSELF WIT HOUT ALLOWING VACANCY ALLOWANCE UNDER SECTION 23(1 )(C) CONSIDERI NG THE FACT THAT IT TAKES TIME TO MAKE A NEWLY PURCHASED PROPER TY READY FOR LETTING OUT AND TO FIND A TENANT. (STANDALONE TAX E FFECT RS. 75,213). 3 ITA NO.739/DEL/2020 2. AT THE OUTSET, THE LEARNED COUNSEL OF THE ASSESSEE REFERRED TO PARA-5 OF THE ORDER OF THE LD. CIT(A) AND SUBMIT TED THAT ONLY TWO NOTICES I.E. NOTICE DATED 15/10/2019 AND 30/10/ 2019 WERE SENT TO THE ASSESSEE, WHICH WERE ALSO NOT SERVED. H E FURTHER SUBMITTED THAT THE LD. CIT(A) HAS CLAIMED TO HAVE S ENT FINAL HEARING NOTICE ON 30/12/2019, WHEREAS THE IMPUGNED ORDER HAS BEEN PASSED AND 31/12/2019 AND, THEREFORE, NO SUFFI CIENT OPPORTUNITY HAS BEEN PROVIDED BY THE LEARNED CIT(A) , WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. HE SUBMIT TED THAT THE ASSESSEE IS WILLING TO APPEAR BEFORE THE LD. CIT(A) AND THUS MATTER MAY BE RESTORED BACK TO THE FILE OF THE LEAR NED CIT(A) FOR DECIDING AFRESH. 5. THE LEARNED DR THOUGH RELIED ON THE ORDER OF THE L OWER AUTHORITIES, HOWEVER, DID NOT OBJECT FOR RESTORING THE MATTER BACK TO THE LEARNED CIT(A). 6. WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES ON T HE ISSUE IN DISPUTE. THE LEARNED FIRST APPELLATE AUTHORITY I .E. LD CIT(A) HAS PASSED THIS ORDER IN VIEW OF NON-COMPLIANCE OF THE NOTICES SENT BY HIM BY EMAIL AS WELL AS BY SPEED POST. THE LEARNED COUNSEL OF THE ASSESSEE, HOWEVER, HAS CONTENDED BEF ORE US THAT NOTICES WERE NOT RECEIVED BY THE ASSESSEE AND THE F INAL NOTICE WAS SENT ONLY ON 30/12/2019 AND IMPUGNED ORDER HAS BEEN PASSED ON 31/12/2019. FOR ADJUDICATION OF MATTER, THE EXPL ANATION OF ASSESSEE NEED TO BE CONSIDERED BY LD. CIT(A). BEFOR E US, THE LEARNED COUNSEL OF THE ASSESSEE HAS EXPRESSED WILLI NGNESS OF THE ASSESSEE TO APPEAR BEFORE THE LEARNED FIRST APPELLA TE AUTHORITY. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES AND IN THE INTEREST 4 ITA NO.739/DEL/2020 OF SUBSTANTIAL JUSTICE, WE SET ASIDE THE ORDER OF T HE LD. CIT(A) AND RESTORE THE MATTER BACK TO HIM FOR DECIDING AFRESH AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH THE ASS ESSEE AS WELL AS THE ASSESSING OFFICER. THE GROUNDS OF THE APPEAL RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PU RPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST JULY, 2021. SD/- SD/- (KUL BHARAT) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 ST JULY, 2021. RK/- (DTDC) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI