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Income Tax Appellate Tribunal, AGRA BENCH: AGRA
Before: SHRI LALIET KUMAR,AND DR. MITHA LAL MEENA
This appeal has been filed by the assessee against the order dated 18.03.2018passed by the Commissioner of Income Tax, (Appeals)-2, Agra, u/s 143(3)of the Act in respect of A.Y. 2013-14, wherein the assessee has taken the following grounds:
I.T.A No.699/Agra/2018 2 “1. That ex-parte appeal order passed contrary to the presence of appellant's counsel taken on record by C.I.T. (A) as per his order, is illegal and arbitrary.
That C.I.T. (A) has erred in ignoring the evidences relied upon which were pan and parcel of the assessment record and the addition of Rs. 6380585/- for long term capital gain and of Rs. 4,33,333/- u/s 69C is illegal and arbitrary.
That the sale deed dated 02.1 1 .2012 the stamp value of which was Rs. 74281000/- in which the assessee has 1/1211 shares included the value of property sold as per registered deed dated 15.05.2012 of Rs. 5560000/- also, the benefit of which has not been allowed by the Ld. C.I.T. (A).
That C.I.T. (A) has erred in not considering the amount received on 15.05.2012 at Rs. 28,04,182/- was in respect of registered deed dated 15.05.2012 (stamp value Rs. 55,60,000/- 5. That the C.I.T. (A) has not considered that the assessment of capital gain on stamp value at Rs. 55,60,000/- as per sale deed dated 15.05.2012, since already included in registered sale deed dated 02.1 1.2012, assessment of the same twice is illegal and arbitrary.
6. That the assessment of capital gain on the basis of value as per circle rate for determining stamp value, without ascertaining the fair market value by making reference to valuation authority is illegal in view of Hon'ble Calcutta High Court decision in the case of Sunil Kumar Agarwal vs CIT, Siliguri (GANo. 3686 of 2013) 7. That the C.I.T. (A) has erred on facts and in law to not allow the claim of deduction u/s 54F at Rs. 20,50,000/- for the investment made in construction of new house through M/s Basera Construction Co. in entirety is illegal and arbitrary.
That the addition of Rs. 4,33,333/- u/s 69C for the stamp duty expenses sustained by the C.I.T. (A) is arbitrary and illegal.
I.T.A No.699/Agra/2018 3
That the addition of Rs. 63,80,585/- for capital gain is arbitrary, against the facts and illegal.
That appellant craves to add or alter any other ground of appeal.”
2. Apropos ground no. 1, that ex-parte order passed contrary to the presence of appellant's counsel taken on record by C.I.T. (A) as per his order, is illegal and arbitrary.
3. At the outset, the Ld. Counsel for the assessee, submitted that the CIT(A) has passed the order ex parte qua the assessee. The assessee has not been heard before deciding the appeal though the ld. CIT(A) has mentioned in para 4 of the impugned order that Sh. S.K. Jain, CA attended hearing on the initial dates however, she has not mentioned the factum of date of issue and service of notices of hearing for subsequent dates regarding providing opportunities. Thus, the assessee was deprived of an opportunity of being heard as per the principle of natural justice. He further argued that the assessee has been deprived of proper opportunity to defend its case by the ld. CIT(A) and therefore the matter may be restored to the ld. CIT(A) to be decided afresh on merits after hearing the assessee..
3.1 The ld. DR placed reliance on the impugned order
I.T.A No.699/Agra/2018 4
4. Heard both the sides and perused the record. It is admitted fact that the ld. CIT(A) has passed exparte orders qua the assessee. We find that the ld. CIT(A) has mentioned the factum of providing repeated opportunities but she did not mention the factum of the issue of notices and service of these notices on the assessee thereof. Whatever notices if any were sent on spam e-mail which were not received by the appellant. However, it is evident that the impugned order was passed ex- parte qua the assessee. The non-speaking ex-parte order passed by the ld. CIT(A) without going into the merits of the case and without hearing the assessee on the issues in appeal before her, cannot be approved. If, we replicate the action of the CIT(A) by way of confirming its finding would be certainly amounts to violation of the principles of natural justice and would be against the fundamental law. Therefore, we are of the considered opinion that at the 1st appellate stage, the CIT(A) ought to have given proper and sufficient opportunity of being heard to the assessee to address his grievances by passing a speaking order on merits of the case.
Therefore, we hold that this appeal is restored to the Ld CIT (A) with the concurrence of the Sr. DR with the direction that the appeals is to be heard afresh after granting sufficient opportunity of being heard to the assessee and to pass a speaking order on merits of the case appreciating the evidence available on record
I.T.A No.699/Agra/2018 5 and may be filed by the assessee in the course of appeallate proceedings. The ld. CIT(A) is further directed to hear the appeal on priority and dispose of within three months of the receipt of this decision. No Doubt, the Assessee, shall cooperate in the fresh proceedings before the CIT(A).
In the result, for statistical purpose, appeals allowed
Order pronounced in the open court on 17/02/2020.