Kumari Jaiwanti Naresh Gupta, Pune V. Income-tax Officer, Ward - 9 (2), Pune

ITA 839/PUN/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9163 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-09-2019
• Assessment Year: 2014-2015
• Appeal Filed On: 30-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJEEV GHAI
• Keywords: Principle of natural justice; Audi alteram partem; Capital Gains
• Section: 68

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE . , BEFORE SHRI D. KARUNAKARA RAO, AM . / ITA NO.839/PUN/2019 / ASSESSMENT YEAR : 2014-15 KUMARI JAIWANTI NARESH GUPTA, SEC. NO.26, PLOT NO.530, GANGANAGAR, AKURDI PRADHIKARAN, PUNE-411044. PAN : AGAPG1174D . /APPELLANT VS. ITO, WARD-9(2), PUNE. . / RESPONDENT / APPELLANT BY : SHRI PRAMOD SHINGTE / RESPONDENT BY : SHRI SANJEEV GHAI / DATE OF HEARING : 23.09.2019 / DATE OF PRONOUNCEMENT: 23.09.2019 / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-8, PUNE DATED 10.05.2019 FOR THE ASSESSMENT YEAR 2014-15. 2. THE ISSUE RAISED IN THE APPEAL RELATES TO THE DENIAL OF EXEMPTION U/S 10(38) OF THE ACT IN RESPECT OF THE LONG TERM CAPITAL GAINS AMOUNTING TO RS.23,45,393/-. 3. BEFORE ME, AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS IS THE CASE WHERE THE ASSESSEE REPORTED INCOME FROM HOUSE PROPERTY AND INTEREST INCOME IN THE RETURN OF INCOME. ASSESSEE CLAIMED EXEMPT LONG TERM CAPITAL GAINS TOO. THE LD. AR ALSO SUBMITTED THAT THE ASSESSEE ITA NO.839/PUN/2019 - 2 - REPORTED INVESTMENT IN SHARES AND REPORTED EARNING OF LONG TERM CAPITAL GAINS ON SALE OF THE SAME. THE ASSESSING OFFICER TREATED THE SAME AS BOGUS TRANSACTION AND MADE THE ENTIRE CAPITAL GAINS AS INCOME OF THE ASSESSEE AS PER THE DISCUSSION GIVEN IN PARA 4.5 OF THE ASSESSMENT ORDER. THE ASSESSING OFFICER INVOKED THE PROVISIONS OF SECTION 68 OF THE ACT WHILE MAKING THE SAID ADDITION. 4. BEFORE THE FIRST APPELLATE AUTHORITY, THE ASSESSEE FILED A WRITTEN SUBMISSION WHO CHOSEN NOT TO APPEAR PERSONALLY OR REPRESENT THE CASE THROUGH THE AUTHORISED REPRESENTATIVE. THE CIT(A) ISSUED NUMBER OF LETTERS AND NOTICES WHICH WERE NOT CONSIDERED RELEVANT FOR PERSONAL APPEARANCE. THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE AS PER THE DISCUSSION GIVEN IN PARA 6.4 OF HIS ORDER. 5. BEFORE ME, EXPLAINING THE BACKGROUND FACTS OF THE CASE, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CIT(A) ADJUDICATED THE ISSUE IN THE ABSENCE OF THE ASSESSEE MERELY RELYING ON THE WRITTEN SUBMISSION. 6. ON THE OTHER HAND, LD. DR FOR THE REVENUE HEAVILY RELIED ON THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A). 7. AFTER HEARING BOTH THE SIDES ON THIS ISSUE AND PERUSING THE EX-PART ORDER OF THE CIT(A), I AM OF THE OPINION, THE ADJUDICATION BY THE CIT(A) IS NOT UPTO THE MARK IN VIEW OF THE NON-APPEARANCE OF THE ASSESSEE OR HIS AUTHORIZED REPRESENTATIVE BEFORE THE CIT(A). GENERALLY, THE QUALITY OF ADJUDICATION SUFFERS WHEN THERE IS NO PERSONAL APPEARANCE OF THE ASSESSEE OR HIS AUTHORIZED REPRESENTATIVE. WITHOUT GOING INTO THE MERITS OF THE CLAIM OF THE ASSESSEE AS WELL AS CORRECTNESS OF THE DECISIONS OF THE ASSESSING OFFICER AND CIT(A), I AM OF THE OPINION, AS PROPOSED BY THE AR OF THE ASSESSEE, THE MATTER SHOULD BE REMANDED BACK TO THE FILE OF THE CIT(A) FOR DECIDING THE ISSUE AFRESH AFTER HEARING THE ASSESSEE OR HIS AUTHORIZED ITA NO.839/PUN/2019 - 3 - REPRESENTATIVE OR BOTH AS PER THE SET PRINCIPLES OF NATURAL JUSTICE. THE ADJUDICATION OF THE APPEAL SHOULD BE DONE AFTER HEARING THE ASSESSEE AND CERTAINLY NOT AFTER CONSIDERING THE MERE WRITTEN SUBMISSION OF THE ASSESSEE. THE PRINCIPLES OF AUDI ALTERAM PARTEM HAVE TO BE STRICTLY FOLLOWED BY THE CIT(A). WITH THESE DIRECTIONS, THE ISSUES RAISED BY THE ASSESSEE ARE REMANDED TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION. THE ASSESSEE IS DIRECTED TO MAKE APPEARANCE AS PROMISED IN THE COURT AND THE CIT(A) IS DIRECTED TO ADJUDICATE THE ISSUE AFRESH AFTER HEARING THE ASSESSEE AND SHALL PASS A SPEAKING ORDER. THUS, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 23 RD DAY OF SEPTEMBER, 2019. SD/- (D. KARUNAKARA RAO) / ACCOUNTANT MEMBER / PUNE; DATED : 23 RD SEPTEMBER, 2019. SUJEET / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-8, PUNE; 4. THE PR. CCIT, PUNE; 5. , , - / DR SMC, ITAT, PUNE; 6. / GUARD FILE. / BY ORDER, //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE