Mr. Lukman, Ghaziabad V. ITO, New Delhi

ITA 813/DEL/2017

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 6274 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 1 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 12-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHWETA YADAV
• Keywords: Principle of natural justice; Capital Gains
• Section: 144; 54B

Judgement Text

1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “F”: NEW DELHI BEFORE SHRI T.S. KAPOOR, ACCOUNTANT MEMBER AND SHRI N. K. CHOUDHRY, JUDICIAL MEMBER ITA No. 813/Del/2017 (Assessment Year: 2008-09) Lukman, Pawhvi, Loni Ghaziabad PAN: AOKPL9989H Vs. Income Tax Officer, Ward-1(4), Ghaziabad (Appellant) (Respondent) Assessee by: Sh. None Revenue by : Ms. ShwetaYadav Sr. DR Date of hearing Date of pronouncement 23/03/2022 23/03/2022 O R D E R PER N.K. CHOUDHRY, J. M.: The Assessee has preferred the instant appeal against the order dated 28.09.2016 impugned herein, passed by the ld. Commissioner of Income tax (Appeals), Ghaziabad (in short “Ld. Commissioner”) u/s 250 of the Income Tax Act, 1961 (in short “the Act”). 2 2. At the time of hearing, no one appeared on behalf of the Assessee. From the record it appears that various notices of hearing such as on 08.02.2021, 18.08.2021, 14.10.2021, 16.12.2021 and for today as well i.e. 23.03.2022, have been issued, however, the same could not be served upon the Assessee due to one or other reason. The notice sent for the date of hearing on 18.08.2021, was returned by the postal department with endorsement “Praptkarta Ki Mirtu Ho GayiHai” meaning thereby the receiver i.e. ShriLukman (Assessee) has died. Considering the aforesaid factual position, we deem it appropriate to decide this appeal as ex-parte. 3. Coming to the facts of the instant case, from the orders passed by the authorities below it appears that the assesse being an individual did not file any return of income for the relevant assessment year. The information revenue department as per information available on record came to know that the Assessee had sold an immovable property for a sum of Rs. 31,40,000/- during the AY under consideration. Therefore, the AO issued various query letters to the Assessee to furnish the information in respect to the sale of property and details of capital gain 3 thereupon. The Assessee failed to reply the same and therefore, the assessment was completed u/s 144 of the Act by making an addition of Rs. 29,91,241/- under the head „long term capital gains‟. 4. Aggrieved by the assessment order the assesse preferred the first appeal before the Ld. Commissioner and during the course of appellate proceeding filed an application under rule 46 of the IT Rules, for filing of the additional evidence on the ground that the Assesseebeing an illiterate villager even did not have even a PAN no. at the time of assessment which has been obtained now and has sold ancestral/ agricultural on a consideration Rs. 31,40,000/- as mentioned in the registration document/ sale deed. Further, it was also claimed by the Assessee that though the Assessee attended the assessment proceedings however, on the date of hearing on 30.12.2015 notice of which was received only on 28.12.2015, as the assesse was unwell, therefore, could not attend the hearing. The Assessee ultimately prayed that a lenient view may be taken in view of the natural justice and the assesse may be given a chance to justify its case. 4 The Ld. Commissioner though considered the application filed by the Assessee under Rule 46 however, rejected the same while holding that none of the condition precedent to rule 46A are fulfilled thereby the additional evidence are not admitted. The ld. Commissioner also observed that Assessee is trying to claim exemption u/s0 54B of the Act by placing evidence but never filed a return of income to maintain an claim of such an exemption u/s 54B of the Act. 5. We have given thoughtful to the facts and circumstances of the case and observe that the Assessee by one or other reason such as due to illness and/or not having allotted PAN card, could not produce the relevant documents in order to claim u/s 54B of the Act and therefore on misconception failed to join the proceedings regularly before the AO and therefore, the Assessee was prevented by sufficient cause from producing the evidence which was called upon by the AO, in fact seems to be relevant for just decision of the case. Hence, considering the peculiar facts and circumstances stated above, in the interest of justice and for just decision of the case, we are inclined to remand this case to the file of the AO for decision afresh. Ordered accordingly. 5 6. In the result appeal filed by the Assessee stands allowed for statistical purposes. Order pronounced in open Court on 23-03-2022 -Sd/- -Sd/- (T.S. KAPOOR) (N.K. CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 23/03/2022 A K Keot Copy forwarded to 1. Applicant 2. Respondent 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, New Delhi