MR SANJAY RUPACHAND TATHED,AHMEDNAGAR V. ITO WARD 2, AHMEDNAGAR

ITA 1502/PUN/2024

AI Insights

The case involves Mr. Sanjay Rupachand Tathed, who appealed against the ex-parte order of the CIT(A) / NFAC, Delhi, relating to the assessment year 2013-14. The assessee had not filed his return of income for the relevant assessment year, despite having sold an immovable property, which was reported to have a market value significantly higher than the sale consideration. The Assessing Officer reopened the assessment and determined a short term capital gain based on the market value of the property, invoking section 50C of the Income Tax Act, 1961. The CIT(A) upheld this decision in an ex-parte order due to non-compliance by the assessee with the notices issued. The Tribunal, considering the circumstances and the non-compliance during the COVID period, decided to restore the matter to the Assessing Officer for a fresh assessment.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 471172 (ITAT-PUNE)
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 16-07-2024
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARVIND DESAI; ADDL
• Assessee Lawyers: PRASAD S. BHANDARI
• Keywords: Opportunity of being heard; Sale consideration of property below Jantri Value; Capital Gains
• Section: 148; 142(1); 50C

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “B”, PUNE BEFORE SHRI R. K. PANDA, VICE PRESIDENT AND SHRI VINAY BHAMORE, JUDICIAL MEMBER ITA No.1502/PUN/2024 Assessment Year : 2013-14 Mr Sanjay Rupachand Tathed 2419, Dalmandi, Ahmednagar – 414001 Vs. ITO, Ward 2, Ahmednagar PAN: AEJPT6471K (Appellant) (Respondent) Assessee by : Shri Prasad S. Bhandari Department by : Shri Arvind Desai, Addl CIT DR Date of hearing : 10-10-2024 Date of pronouncement : 14-10-2024 O R D E R PER R. K. PANDA, VP : This appeal filed by the assessee is directed against the ex-parte order dated 17.10.2023 of the CIT(A) / NFAC, Delhi relating to assessment year 2013-14. 2. There is a delay of 213 days in filing of this appeal before the Tribunal, for which the assessee has filed a condonation application along with an affidavit explaining the reasons for such delay. After considering the contents of the condonation application filed along with the affidavit and after hearing the Ld. DR, the delay in filing of the appeal is condoned and the appeal is admitted for adjudication. 2 ITA No.1502/PUN/2024 3. Facts of the case, in brief, are that the assessee is an individual and has not filed his return of income for the impugned assessment year. Information was received from the ACIT, Ahmednagar that the assessee has sold an immovable property at S.No.38/1/1A, admeasuring 78 R situated at Burhanagar, Ahmednagar for Rs.67,50,000/-. The market value of the said property was Rs.91,03,000/- attracting the provisions of section 50C of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’). Since the assessee has not filed his return of income and the capital gains / profits arrived on sale of such property was not disclosed by the assessee, the Assessing Officer, after recording reasons, reopened the assessment u/s 147 of the Act. Accordingly, notice u/s 148 of the Act was issued to the assessee on 21.04.2020 which was duly served on the assessee. However, the assessee did not file his return in response to the said notice u/s 148 of the Act. Subsequently, notice u/s 142(1) of the Act was also issued. Despite four opportunities granted by the Assessing Officer, there was no compliance from the side of the assessee. In view of the above, the Assessing Officer, invoking the provisions of section 50C of the Act, determined the short term capital gain of Rs.91,03,000/- in the hands of the assessee. 4. Since the assessee did not appear before the CIT(A) / NFAC despite three opportunities granted, the Ld. CIT(A) / NFAC in the ex-parte order passed by him upheld the order of the Assessing Officer. 3 ITA No.1502/PUN/2024 5. Aggrieved with such order of CIT(A) / NFAC, the assessee is in appeal before the Tribunal. 6. The Ld. Counsel for the assessee submitted that the Assessing Officer had issued four notices during the period from 25.02.2021 to 23.02.2022 which were during the Covid period and he passed the order on 23.03.2022. He submitted that the CIT(A) / NFAC has issued 3 notices on 06.09.2023, 19.09.2023 and 29.09.2023, respectively and due to non appearance, passed the ex-parte order sustaining the addition made by the Assessing Officer. He submitted that the CIT(A) / NFAC has not adjudicated the issue on merit. He requested that in the interest of justice, the matter may be restored to the file of the Assessing Officer with a direction to give one more opportunity to the assessee to substantiate his case by filing the relevant details and decide the issue as per fact and law. 7. The Ld. DR on the other hand heavily relied on the orders of the Assessing Officer and the CIT(A) / NFAC. 8. We have heard the rival arguments made by both the sides and perused the orders of the Assessing Officer and Ld. CIT(A) / NFAC. It is an admitted fact that due to non-compliance to the statutory notices issued by the Assessing Officer, he passed the ex-parte order determining short term capital gain in the hands of the 4 ITA No.1502/PUN/2024 assessee at Rs.91,03,000/-. We find due to non-compliance to the notices issued by the office of the CIT(A) / NFAC, he upheld the order of the Assessing Officer. A perusal of the assessment order shows that the assessee has sold an immovable property along with two other persons for a consideration of Rs.67,50,000/- and the market value of the said property was Rs.91,03,000/-. We find the Assessing Officer by invoking the provisions of section 50C of the Act determined the entire short term capital gains in the hands of the assessee at Rs.91,03,000/- which has been upheld by the CIT(A) / NFAC. Even though the order passed by the CIT(A) / NFAC is an ex-parte order, he forgot to note that the property was sold by three persons and not by the assessee himself. It is the submission of the Ld. Counsel for the assessee that given an opportunity, the assessee is in a position to substantiate his case before the Assessing Officer by filing the requisite details. Considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore the issue to the file of the Assessing Officer with a direction to grant one more opportunity to the assessee to substantiate his case by filing the requisite details before the Assessing Officer and participate in the assessment proceedings. The Assessing Officer shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. The assessee is also hereby directed to appear before the Assessing Officer on the appointed date and file the requisite details without seeking any adjournment under any pretext, failing which the Assessing Officer is at liberty to pass appropriate order as per 5 ITA No.1502/PUN/2024 law. We hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes. 9. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open Court on 14th October, 2024. Sd/- Sd/- (VINAY BHAMORE) (R. K. PANDA) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; दिन ांक Dated : 14th October, 2024 GCVSR आदेश की प्रतितिति अग्रेतिि/Copy of the Order is forwarded to: 1. अपीलार्थी / The Appellant; 2. प्रत्यर्थी / The Respondent 3. 4. The concerned Pr.CIT, Pune DR, ITAT, ‘B’ Bench, Pune 5. गार्ड फाईल / Guard file. आदेशानुसार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अधिकरण ,पुणे / ITAT, Pune 6 ITA No.1502/PUN/2024 S.No. Details Date Initials Designation 1 Draft dictated on 11.10.2024 Sr. PS/PS 2 Draft placed before author 11.10.2024 Sr. PS/PS 3 Draft proposed & placed before the Second Member JM/AM 4 Draft discussed/approved by Second Member AM/AM 5 Approved Draft comes to the Sr. PS/PS Sr. PS/PS 6 Kept for pronouncement on Sr. PS/PS 7 Date of uploading of Order Sr. PS/PS 8 File sent to Bench Clerk Sr. PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R. 11 Date of Dispatch of order "