Kamal Kishore Jaiswal, Dehradun V. ACIT, Dehradun

ITA 991/DEL/2017

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 3708 (ITAT-DEHRADUN)
• Duration Of Justice: 5 year(s) 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 20-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 147; 139; 54F; 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DEHRADUN BENCH, DEHRADUN Before Dr. B. R. R. Kumar, Accountant Member & Sh. Yogesh Kumar U.S., Judicial Member ITA No. 991/Del/2017 Assessment Year: 2007-08 Kamal Kishore Jaiswal, 23/25, Pritam Road, Dalanwala, Dehradun. Vs Asst. Commissioner of Income Tax, Central Circle, Dehradun. (APPELLANT) (RESPONDENT) PAN No. ACDPK1166C Assessee by : None Revenue by : Sh. N.S. Jangpangi, CIT-DR Date of Hearing: 25.04.2022 Date of Pronouncement: 27.04.2022 ORDER Per Yogesh Kumar U.S., Judicial Member: This appeal has been filed by the assessee against the order of the ld. CIT(A)-IV, Kanpur dated 16.01.2017. 2. Brief facts of the case are that, during the year under consideration, the assesse had sold plot on which long term capital gain (LTCG)of Rs.22,62,367/- has been declared in his return of income filed under Section 139 of the Act. Out of LTCG, Rs.13,95,000/- has been claimed exempt under Section 54F of the Act, which was invested in the purchase of residential house property amounting to Rs.38,95,000/- at Pritam Road, Dehradun. A loan amount of Rs.25 lakh had been availed from HDFC Bank for purchase of the said property. The balance amount of Rs.8,67,367/- as capital gain was offered to tax. At the time of ITA No.991/Del/2017 Kamal Kishore Jaiswal 2 filing return under Section 153A of the Act, the assessee claimed entire amount of long term capital gain exempt under Section 54F Act, therefore, a show cause notice has been issued to the assesse and a reply has been submitted by the assesse on 05.02.2013 in the following manner: “ with ref erence to para 4 of your notice I am to submit that my claim f or exemption of the en tire amount of cap ital gains is in accordance with the provision of Section 54F of the Act, which is available with ref erence to the quantu m of ‘net consideration’ received on the transf er giving rise to the capital gains and the cost of ne wly acquired house property and not with ref erence to the immediate source of the money for its acquisition besides proceedings u/s. 153A of the Act are aimed at making de novo assessments and are not akin to proceedings under Section 147 of the Act to charge to tax only income escaping assess ment in the origin al proceedings. You may theref ore issue the ref und cl aimed.” 3. The said explanation given by the assessee was not been found to be acceptable on the ground that, the housing loan of Rs.25 lac has been availed from the HDFC Bank, remaining amount of Rs.13,95,000/- has been paid out of the capital gain amount of the plot sold on which exemption was claimed, therefore, balance amount of Rs.8,67,367/- had not been utilized for purchase and the exemption of Rs.8,67,367/- claimed by the Assessee was disallowed and added back to the income of the Assessee vide assessment order dated 21-03-2013. Consequent to the assessment order, penalty proceedings has been initiated against the assessee and penalty order came to be passed under section 217(1)(c) of the Act on 14-08-2015 by imposing a minimum penalty of Rs. 1,76,940/- upon the assessee. ITA No.991/Del/2017 Kamal Kishore Jaiswal 3 4. As against the penalty order dated14-08-2015, the assessee had preferred an appeal before the CIT(A)-IV, Kanpur. The CIT(A) vide order dated 16.01.2017 dismissed the appeal in the absence of the assessee and the representative of the assessee. 5. Aggrieved by the Order of dismissal dated 16.01.2017 passed by the CIT (A), assessee preferred the present Appeal on the following grounds: 1. The ld. CIT(A) has erred in law and on f acts in not allo wing the appellant f ull and suff icient opportunity of being heard. 2. That the learned CIT(A) has erred in law and on f acts in dismissing the appeal of the assessee and in upholding the order passed by the AO withou t considering the f acts and circu mstances of the appellant’s case set out in his state men t of f acts itself .” 6. None appeared for the Assessee. We have heard the Ld. DR and perused the material on record and gave our thoughtful consideration. 7. The main grievance made out by the assessee in the grounds of Appeal is that the Ld. CIT(A) has upheld the order passed by the AO without considering the facts and circumstances of the appellant’s case set out in his statement of facts itself. On perusal of the Order of the Ld. CIT (A), we found that on 02/12/2016, 26/12/2016 and on 12/01/2017 none appeared for the assessee and application seeking adjournment is also not filed, and therefore, the Ld. CIT(A) dismissed the appeal on 12/01/2017. ITA No.991/Del/2017 Kamal Kishore Jaiswal 4 8. Since the Appeal before the CIT (A) has been decided without hearing the assessee and assessee has urged the said grievance in the present appeal, in the interest of justice and to render the substantial justice by looking to the facts and circumstances of the case, we are inclined provide an opportunity to the assessee to canvas the appeal before the CIT(A). 9. Accordingly, we set aside the order of the ld. CIT(A) dated 16- 01-2017 and remit the matter to the file of the ld. CIT(A) for fresh consideration of the Appeal. Needless to say that the assessee shall be provided sufficient and reasonable opportunity of being heard on the statement of facts and the grounds raised in the appeal and pass appropriate order in accordance with law. 10. In the result, the appeal of the assessee is allowed for statistical purposes. Order Pronounced in the Open Court on 27/04/2022. Sd/- Sd/- (Dr. B. R. R. Kumar) (YOGESH KUMAR U.S.) Accountant Member Judicial Member Dated: 27/04/2022 *Prabhat, Sr. PS*