Smt. Mira S Bhojwani, Pune V. CIT-II Pune, Pune

ITA 793/PUN/2012

• Counselvise Citation: 79324514 RSA 2012
• Duration Of Justice: 1 year(s) 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 17-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ADAR SHA KUMAR MODI
• Assessee Lawyers: V L JAIN
• Keywords: Principle of natural justice
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO. 793/PN/2012 (ASSESSMENT YEAR: 2007-08) SMT. MIRA S. BHOJWANI B-102 RIVIRESA HOUSING SOCIETY BANER, PUNE-41 045 PAN AAMPB 1932 E APPELLANT VS. ASSTT. CIT CIR. 4, PUNE .. RESPONDENT APPELLANT BY: SHRI V.L. J AIN RESPONDENT BY: SHRI ADARSH AKUMAR MODI DATE OF HEARING : 09-07-2013 DATE OF ORDER : 15.07.2013 ORDER PER SHAILENDRA KUMAR YADAV, JM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE CIT-II PUNE DATED 30-3-2012 FOR A.Y. 2007-08 PASSED U/S 263 OF THE ACT RAISING THE FOLLOWING GROUNDS:- 1. THE LEARNED CIT HAS ERRED IN LAW AND IN FACTS I N NOT GRANTING A PROPER OPPORTUNITY OF HEARING AND THEREB Y VIOLATING THE LAW OF NATURAL JUSTICE. 2. THE LEARNED CIT HAS FURTHER ERRED IN LAW AND ON FACTS IN ASSUMING JURISDICTION U/S 263 OF THE ACT. 2. THE RETURNED INCOME OF RS. 67,05,891/- COMPRISED INCOME UNDER THE HEAD HOUSE PROPERTY, INCOME FROM CAPITA L GAINS AND INCOME UNDER THE HEAD OTHER SOURCES. THE CAPITAL GAINS ADMITTED IN THE RETURN CONSISTED OF SHORT TERM CAPITAL GAINS OF RS. 44,807/- AND LONG TERM CAPITAL GAINS OF RS. 65,29,289/-. TH E ASSESSEE HAD ADMITTED THE ABOVE LONG TERM CAPITAL GAINS ON THE S ALE OF A HOUSE PROPERTY AT 7 NIZAMUDDIN EAST, NEW DELHI. THE SALE TOOK PLACE ON 7-6-2006 AND THE SALE CONSIDERATION BEING THE ASSES SEES 50% SHARE WAS RS. 2,50,00,000/-. THE OTHER 50% OF THE SHARE BELONGED TO THE ASSESSEES SISTER MRS. KUSUM BHOJWANI. FROM THE SA LE CONSIDERATION OF RS. 2,50,00,000/- THE ASSESSEE DED UCTED COST OF SELLING AND IMPROVEMENT COST AND AFTER AVAILING THE BENEFIT OF INDEXATION ARRIVED AT THE NET CONSIDERATION OF RS. 2,25,48,489/-. OUT OF THE SAME, THE ASSESSEE CLAIMED DEDUCTION OF RS. 60,19,200/- U/S 54 OF THE ACT AND FURTHER DEDUCTION OF RS. 1,00 ,00,000/- U/S 54EC OF THE ACT. ACCORDINGLY, THE NET CAPITAL GAIN WAS COMPUTED AT RS. 65,29,289/-. THE CASE WAS TAKEN UP FOR SCRUTINY . IN THE SCRUTINY ASSESSMENT THE ASSESSING OFFICER ACCEPTED THE ASSESSEES RETURNED INCOME. SUBSEQUENTLY THE ASSESSMENT ORDER AND CASE RECORD WAS REVIEWED BY THE CONCERNED CIT AND IT WAS NOTICED THAT THE ORDER OF THE ASSESSING OFFICER WAS ERRONEOUS IN SOFAR AS IT WAS PREJUDICIAL TO THE INTEREST OF REVENUE, BECAUSE THE ASSESSING OFFICER HAS NOT LOOKED INTO VARIOUS ASPECTS OF THE CLAIM OF THE ASSESSEE. ACCORDINGLY, NOTICE U/S 263 OF THE ACT WAS ISSUED B Y THE CIT TO THE ASSESSEE ON 16-3-2012 CALLING UPON THE ASSESSEE TO SHOW CAUSE AS TO WHY THE ASSESSMENT ORDER DATED 16-12-2009 SHOULD NOT BE REVISED. 3. AS PER THE NOTICE U/S 263 THE ASSESSEES CASE WA S POSTED FOR HEARING ON 22-3-2012 AND VARIOUS ORAL CONTENTIONS W ERE RAISED ON BEHALF OF THE ASSESSEE AND THE ASSESSEE SOUGHT AN A DJOURNMENT AS SHE COULD NOT COLLECT THE RELEVANT DOCUMENTS AND PR ODUCE THE SAME FOR PERUSAL. THE ASSESSEE COULD NOT PRODUCE THE SA ME ON 27-3- 2012. HOWEVER, IT WAS SUBMITTED THAT ON BEHALF OF THE ASSESSEE THAT THE RELEVANT DOCUMENTS WERE AT DELHI AND IT WI LL TAKE SOME TIME TO COLLECT THE SAME. THE HEARING WAS SOUGHT T O BE ADJOURNED FOR A COUPLE OF WEEKS. THE ASSESSEE WAS FINALLY AS KED TO SUBMIT THE DETAILS BY 28-3-2012 WHICH WAS EXTENDED UPTO 28-3-2 012 AND AGAIN UPTO 30-3-2012. HOWEVER, NO DETAILS OR EVIDE NCE WAS FURNISHED TILL THAT DATE AND THE CIT WITHOUT WAITIN G FOR THE SAME, PASSED AN ORDER U/S 263 OF THE ACT. SAME HAS BEEN O PPOSED BEFORE US. ON THE OTHER HAND, THE LEARNED DR SUPPORTED TH E ORDER OF THE CIT(A) AND SUBMITTED THAT ASSESSEE WAS EVASIVE IN P RODUCING EVIDENCE BEFORE THE CIT. 4. THE MAIN CONTENTION OF THE ASSESSEE, WITHOUT PRE JUDICE TO MERITS OF THE CASE, IS THAT THE ASSESSEE WAS NOT PR OVIDED DUE OPPORTUNITY OF HEARING INSPITE OF SPECIFIC REQUEST MADE FOR THE SAME. FROM THE ABOVE DISCUSSIONS, WE FIND THAT THE ASSESSEE REQUESTED TIME AND AGAIN FOR PLACING RELEVANT DETAI LS ON RECORD AND MADE A REQUEST ACCORDINGLY BUT SHE COULD NOT SUBMIT THE SAME FOR THE REASONS BEYOND HER CONTROL. THERE MAY BE VARIO US REASONS NOT TO PRODUCE THE RELEVANT RECORD AT THE RELEVANT TIME AND ANY DECISION IN THE ABSENCE OF DOCUMENTS WHICH WERE CLAIMED TO H AVE NOT BEEN PRODUCED BY THE ASSESSEE AMOUNTS TO INADEQUATE OPPO RTUNITY OF HEARING WHICH IS VIOLATIVE OF PRINCIPLES OF NATURAL JUSTICE. SO IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF THE CIT AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO DECIDE THE I SSUE AT HAND ON MERITS AS PER FACTS AND LAW AFTER PROVIDING DUE OPP ORTUNITY OF HEARING TO THE ASSESSEE. SINCE WE ARE RESTORING TH E MATTER ON A PRELIMINARY GROUND TO THE FILE OF THE CIT, WE ARE R EFRAINING TO COMMENT UPON THE MERITS OF THE ISSUE AT HAND. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 15 TH JULY 2013 (G.S. PANNU) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 15 TH JULY 2013 ANKAM COPY TO:- 1) ASSESSEE 2) DEPARTMENT 3) THE CIT-II PUNE 5) THE DR, B BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE