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Income Tax Appellate Tribunal, IN THE INCOME TAX APPELLATE TRIBUNAL,
Before: BEFORE SHRI GEORGE MATHANMANISH AGARWAL
Assessment Year : 2016-17 Laxminarayan Das Laxminarayan Das Vs. Income Tax Officer, Ward- Income Tax Officer, Ward Plot No.575-C, C, 3(3), Bhubaneswar hubaneswar Behera Sahi Nayapali Bhubaneswar, 751012 , 751012 PAN/GIR No. No.ACCPD 0726 E (Appellant (Appellant) .. ( Respondent Respondent) Assessee by Assessee by : S/Shri P.K.Misahra and B.N.Behera B.N.Behera, Adv Revenue by : Shri S.C.Mohanty, Sr DR : Shri S.C.Mohanty, Sr DR Date of Hearing : 30/12/20 2024 Date of Pronouncement : 30/12/20 024 O R D E R Per Bench This is an This is an appeal filed by the assessee against the order of the ld appeal filed by the assessee against the order of the ld CIT(A), NFAC, Delhi dated CIT(A), NFAC, Delhi dated 22/03/2024 in Appeal No.CIT(A),Bhuban CIT(A),Bhubaneswar- 2/10236/2018-19 19 for the assessment year 2016-17.
Shri B.N.Behera B.N.Behera and P.K.Mishra, ld ARs appeared for appeared for the assessee and Shri S.C.Mohanty S.C.Mohanty, Sr. DR appeared for the revenue.
The assessee has raised The assessee has raised following grounds of appeal: following grounds of appeal:-
P a g e 1 | 5 “1 For that, the learned CIT(A) has committed gross error of law as well as of fact, in dismissing the appeal of the appellant and in confirming the addition made by the learned A.O., without providing sufficient effective opportunity of being heard to the Appellant, as such, the appeal order, being passed on gross violation of principles of natural justice is not sustainable in the eye of law, hence needs to be quashed in the interest of justice.
2. For that, the addition made by the learned A.O. in the order of assessment, ignoring the explanation offered and evidences adduced by the Appellant is not sustainable in the eye of law, as such, the appellate order passed by the learned CIT(A), confirming the assessment order passed by the learned A.O., without examining the assessment record and without providing adequate opportunity of being heard to the Appellant is also not sustainable in the eye of law, hence needs to be quashed in the interest of justice.
3. For that, the learned CIT(A) has committed gross error of law as well as of fact, in confirming the disallowances of exemption/deduction claimed u/s.54F of the Act from the net taxable long term capital gain, without examining the explanation offered and evidences adduced by the Appellant during course of assessment proceeding. The impugned disallowance of exemption/deduction claimed u/s 54F of the Act and addition of the same to the total income of the Appellant, being not sustainable in the eye of law is liable to be deleted in the interest of Justice. 4 For that, both the Forums below have committed gross error of law as well as of fact in disallowing the claim of exemption/deduction u/s.54F of the Act, particularly when, the Appellant has fulfilled all the conditions prescribed u/s.54F of the Act and is lawfully entitled for the benefit of exemption/deduction claimed u/s.54F of the Act. The impugned disallowance of exemption claimed u/s.54F of the Act to the tune of Rs.4,69,23,231.00 and addition of the same to the total income of the Appellant, being illegal and contrary to the statutory provisions of law is not sustainable, hence needs to be deleted in the interest of justice.”
The appeal is time barred by 189 days. The assessee has filed condonation petition dated 6.12.2024 supported by affidavit stating the reason that as the assessee was seriously ill from acute pancreatic disease and neurological problem and had undergone medical treatment from 25.3.2024 to 4.12.2024, he could not take necessary steps regarding filing of appeal before the Tribunal. When the assessee was relieved from the suffering, he immediately contacted the Counsel to file the appeal and for this reason, there was delay of 189 days. It was submitted
P a g e 2 | 5 that by delaying the appeal, the assesse would not get any benefit. Accordingly, he prayed to condone the delay in filing the appeal. Ld Sr DR did not have any serious objection to the request of ld AR of the assessee. As the reason stated by the assessee has not been found to be false, the delay of 189 days in filing of appeal is condoned and the appeal is admitted for hearing.
It was submitted by the ld AR that the ld CIT(A) has simply dismissed the appeal only because the assessee did not comply to the notices issued by him in limine without adjudication of the issues arising in the appeal on merits, hence such order was not sustainable in the eyes of law. It was submitted that the claim of capital gain in this assessment year and determination of capital gain by the AO both are wrong as there is no capital gain earned by the assessee for this year. It was his request that the matter may be restored back to his file of the AO for fresh adjudication on merits with the direction to provide reasonable opportunity to the assessee.
In reply, ld Sr. DR supported the orders of the ld AO and CIT(A).
We have considered the rival submissions. A perusal of the order the ld CIT(A) shows that as the assessee failed to respond the notices issued on 06.01.2021, 11.01.2023, 05.09.2023, 13.01.2023, 02.11.2023, 05,02.2024. hence, the ld CIT(A) was compelled to dismiss the appeal of the assessee. We observe that the ld CIT (A) has passed an exparte order, which is not in compliance with the provision of section 250(6) of the Act. There is no independent application of mind by ld CIT(A) and the appellate order
P a g e 3 | 5 passed is not a speaking and reasoned order. The ld CIT(A) has not even dealt with the contention of the assessee regarding exemption claimed u/s 54F of the Act to the tune of Rs.4,69,23,231/-. The appellate order passed by the ld CITT(A) is subject to further appeal with ITAT. The claim of the assessee that capital gain earned in this assessment year and determination of capital gain by the AO both are wrong as there is no capital gain earned by the assessee for this year. This aspect of the assessee has not been considered by the AO and ld CIT(A). Hence, in the interest of justice, the issues in this appeal are restored to the file of the CIT(A) for readjudication after providing adequate opportunity of hearing to the assessee subject to cost of Rs.2,000/- (Rupees two thousand only) to be deposited within 60 days from the date of this order under the head “others” in ITNS challan 280 in the Account No.500 and same is to be filed before the ld AO. In the event the cost is not paid, the order passed by the ld CIT(A) and that of the AO would stand confirmed.
In the result, appeal of the assessee stands partly allowed for statistical purposes.
Order dictated and pronounced in the open court on 30/12/2024.