SACHIN DATTATRAYA POTE, THANE V. ITO 3(4), KALYAN

ITA 986/MUM/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 1525 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 26-02-2016
• Court: TRIBUNAL
• Department Lawyers: AKHILENDRA YADAV
• Assessee Lawyers: AVINASH CHAVAN
• Keywords: Capital asset; Opportunity of being heard; Principle of natural justice; Reasonable cause; Fair market value

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI C.N. PRASAD, JUDICIAL MEMBER I.T.A. NO.986/M/2016 (ASSESSMENT YEAR: 2009 - 2010) SACHIN DATTATRAYA POTE, POTE APARTMENT, JIMMY BAUG, TISGAON, KOLSEWADI, KALYAN DIST, THANE (W) - 421306. / VS. INCOME TAX OFFICER - 3(4), 2 ND FLOOR, RANI MANSION, MURBAD ROAD, KALYAN (W). ./ PAN : AMAPP8397G ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI AVINASH CHAVAN / RESPONDENT BY : SHRI AKHILENDRA YADAV, DR / DATE OF HEARING : 10.11.2016 / DATE OF PRONOUNCEMENT : 16.12 .2016 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 26.2.2016 IS AGAINST THE ORDER OF THE CIT (A) - 1, MUMBAI DATED 20.11.2015 FOR THE ASSESSMENT YEAR 2009 - 2010. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: - 1A. THE LD CIT (A) ERRED IN PASSING THE EXPARTE ORDER DISMISSING THE APPEAL FOR NON - ATTENDANCE, WHEN THE ASSESSEE BEING ILL AND HOSPITALIZED COULD NOT ATTEND THE APPEAL HEARING ON THE GIVEN DATES. 1B. THE APPELLANT PRAYS FOR SETTING ASIDE THE ORDER OF THE CIT (A) AS (A) THE APPELLANT WAS PREVENTED BY REASONABLE CAUSE IN ATTENDING THE APPEAL HEARING FIXED BEFORE THE CIT (A). (B) THE LD CIT (A) HAS DISMISSED THE APPEAL EXPARTE WITHOUT CONSIDERING THE MERITS OF THE CASE AND ACCORDINGLY HAS TAKEN A DECISION CONTRARY TO THE DEC ISION OF THE ITAT, AHMEDABAD IN THE CASE OF GUJARAT THEMIS BIOSYN LTD VS. JCIT 74 ITD 339 (HYD). 2. WITHOUT PREJUDICE TO GROUND NOS. 1A AND 1B ABOVE, ON MERITS, THE APPELLANT PRAYS THAT (A) THE LD CIT (A) ERRED IN CONFIRMING THE ADDITION OF RS. 31,01,465/ - TO THE RETURNED INCOME AS LONG TERM CAPITAL GAIN ARISING IN THE HANDS OF YOUR APPELLANT ON SALE OF SHARE IN PROPERTY AT VADGAON SHERI, PUNE. (B) THE LD CIT (A) ERRED IN CONFIRMING THE ADDITION OF RS. 31,01,465/ - AS LONG TERM CAPITAL GAIN DETERMINED BY AD OPTING THE SALE CONSIDERATION AS PER STAMP VALUATION AUTHORITY AND IGNORING THAT SUCH AMOUNT EXCEEDS THE FAIR MARKET VALUE OF THE PROPERTY AS ON THE DATE OF TRANSFER. (C) THE LD CIT (A) ERRED IN NOT REFERRING THE VALUATION OF CAPITAL ASSET TRANSFERRED TO A VALUATION OFFICER RESULTING IN THE VALUE AS PER THE STAMP VALUATION AUTHORITIES TO BE 2 ADOPTED AS THE DEEMED SALE CONSIDERATION FOR WORKING OF LONG TERM CAPITAL GAINS. 2. AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE BROUGHT OUR ATTENTION TO GROUNDS NO. 1A AND 1B AND SUBMITTED THAT THE CIT (A) ADJUDICATED THE APPEAL ON EX - PARTE BASIS THEREBY CAUSING INJUSTICE TO THE ASSESSEE. HE FURTHER SUBMITTED THAT THE ASSESSEE WAS SICK AND HOSPITALIZED DURING THE DATES OF HEARING AND THEREFORE, THE LD COUNSEL FOR THE ASSESSEE ARGUED FOR REMANDING THE MATTER TO THE FILE OF THE CIT (A) FOR FR ESH ADJUDICATION AFTER GRANTING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. ON HEARING BOTH THE PARTIES AND ON PERUSAL OF THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE U S, WE FIND, THE ORDER OF THE CIT (A) DATED 20.11.2015 WAS FINALIZED WITHOUT PRESENCE OF THE ASSESSEE OR ITS REPRESENTATIVE. IN OUR VIEW, THE FACTS MENTIONED BY THE ASSESSEE ABOUT HIS SICKNESS AND HOSPITALIZATION ARE UNDISPUTED AND THEREFORE, THERE IS NO ATTENDANCE BEFORE THE FAA AT THE RELEVANT POINT OF TIME. CONSIDERING THE CONCESSION OFFERED BY THE LD REPRESENTATIVES OF BOTH THE PARTIES BEFORE US, WE ARE OF THE OPINION, THIS IS A FIT CASE FOR REMANDING THIS ISSUE TO THE FILE OF THE CIT (A) FOR FRESH ADJUDICATION. WE ORDER ACCORDINGLY AND DIRECT THE CIT (A) TO DECIDE THE MATTER AFTER GRANTING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER THE SET PRINCIPLES OF NATURAL JUSTICE. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE R ESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOU NCED IN THE OPE N COURT ON 1 6 T H D E C E M B E R , 2016. S D / - S D / - ( C.N. PRASAD ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT ME MBER MUMBAI ; 16.12 .2016 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI