Abhishek Kumar L/H Naresh Kumar, Yamunanagar V. ITO, W-2, Yamunanagar

ITA 930/CHANDI/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8829 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 14-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARVIND SUDERSHAN JCIT
• Assessee Lawyers: RAMAN RAJDEV
• Keywords: Capital asset; Opportunity of being heard; Set aside
• Section: 2(14); 142(1); 13; 147; 144

Judgement Text

, .. , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCHES, SMC CHANDIGARH .., ! BEFORE: SHRI. N.K.SAINI, VICE PRESIDENT ITA NO.930/CHD/2019 ASSESSMENT YEAR : 2008-09 SHRI ABHISHEK KUMAR L/H NARESH KUMAR, H.NO. 344, ASHOK VIHAR, JAGADHRI YAMUNANAGAR, HARYANA THE ITO W-2, YAMUNANAGAR HARYANA PAN NO: BRMPK7582D APPELLANT RESPONDENT !' ASSESSEE BY : SHRI RAMAN RAJDEV, CA #!' REVENUE BY : SHRI ARVIND SUDERSHAN, JCIT $ %! & DATE OF HEARING : 09/01/2020 '()*! & DATE OF PRONOUNCEMENT : 09/01/2020 '#/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE LEGAL HEIR OF THE DECEASED ASSESSEE AGAINST THE ORDER DT. 15/03/2019 OF LD. CIT(A)-3, LUDHIANA. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L: 1. THAT THE CIT(A) HAS ERRED IN PASSING IMPUGNED OR DER AS THE ASSESSEE WAS NOT GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD CITIN G THE SUDDEN DEMISE OF ONE OF HIS FAMILY MEMBER. 2. THAT THE CIT(A) ERRED IN PASSING THE ORDER DATED 15/03/2019 IN APPEAL OF THE APPELLANT WITHOUT FULLY DISCUSSING THE CONTENTIONS AND THEREFORE, ORDER IS BAD IN LAW AS IT HAS BEEN PASSED WITH A PREJUDICED MIND. 3. THAT THE CIT(A) AS WELL AS THE ASSESSING OFFICER ERRED IN HOLDING THAT ASSET INVOLVED WAS AGRICULTURE LAND AND DOESNT QUALIFY A S CAPITAL ASSET UNDER SECTION 2(14) OF THE ACT. 4. THAT THE APPELLANT CRAVE LEAVE TO ADD, AMEND OR MODIFY ANY OF THE GROUNDS OF APPEAL AT ANY TIME BEFORE THE HEARING OF THE APPEAL . 3. THE MAIN GRIEVANCE, IN THIS APPEAL RELATES TO TH E REASONABLE OPPORTUNITY OF BEING HEARD NOT GIVEN BY THE LD. CIT (A). 2 4. FACTS OF THE CASE IN BRIEF ARE THAT THE A.O. ON THE BASIS OF INFORMATION THAT THE ASSESSEE SOLD LAND MEASURING 13 KANAL 07 MARLA TO M/S GREEN PLANET COLONISER PRIVATE LTD. KALKAJI, NEW DELHI FOR A CON SIDERATION OF RS. 91,66,667/- ON 26/06/2007 AND THE ASSESSEE WAS HAVING 5/54 TH SHARE IN THE ABOVE SAID LAND, INITIATED THE PROCEEDINGS UNDER SECTION 147 R .W.S 148 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT). THE A .O. ALSO ISSUED NOTICE UNDER SECTION 142(1) OF THE ACT ALONGWITH QUESTIONNAIRE. A S THERE WAS NO RESPONSE FROM THE ASSESSEE SIDE, THE A.O. FRAMED THE ASSESSMENT UNDER SECTION 144 OF THE ACT AND ASSESSED THE INCOME AT RS. 8,31,929/- WHICH WAS WORKED OUT BY HIM AS LONG TERM CAPITAL GAIN BELONGING TO THE ASSESSEE. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO SUSTAINED THE ADDITION MADE BY THE A.O. BY PASSING THE EX-PARTE ORDER AND BY OBSERVING THAT THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE FILED ASSESSEES DEATH CERTIFICATE ON 21/12/2018 AND THERE AFTER DID NOT FILE ANY WRITTEN SUBMISSION IN SUPPORT OF HIS CONTENTION THA T THE LAND WAS AGRICULTURAL LAND. 6. NOW THE LEGAL HEIR OF THE DECEASED ASSESSEE IS I N APPEAL. 7. LD. COUNSEL FOR THE LEGAL HEIR OF THE DECEASED A SSESSEE SUBMITTED THAT THE LD. CIT(A) PASSED THE EXPARTE ORDER WITHOUT AFF ORDING REASONABLE OPPORTUNITY OF BEING HEARD. IT WAS FURTHER STATED T HAT THE ASSESSEE COULD NOT REPRESENT HIS CASE DUE TO SUDDEN DEMISE OF ONE OF H IS FAMILY MEMBERS. 8. IN HIS RIVAL SUBMISSIONS THE LD. DR SUPPORTED T HE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 9. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE IT IS AN ADMITTED FACT THAT THE LD. CIT(A) PASSED THE IMPUGNED ORDER EXPAR TE AND THE EXPLANATION GIVEN BY THE LD. COUNSEL FOR THE ASSESSEE FOR NOT A PPEARING BEFORE THE LD. CIT(A) WAS THAT THERE WAS A SUDDEN DEMISE OF ONE OF THE FAMILY MEMBER. I THEREFORE, CONSIDERING THE PECULIAR FACTS OF THIS C ASE SET ASIDE THE MATTER TO 3 THE FILE OF THE LD. CIT(A) TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. SD/- .., ( N.K. SAINI) ! / VICE PRESIDENT AG DATE: 09/01/2020 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE