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Income Tax Appellate Tribunal, DELHI BENCH “E”: NEW DELHI
Before: SHRI NARENDRA KUMAR BILLAIYA & SHRI KUL BHARAT
O R D E R PER KUL BHARAT, JM:
This appeal, by the assessee, is directed against the order of the learned Commissioner of Income-tax (Appeals)-17, New Delhi, dated 31.07.2018, pertaining to the assessment year 2010-11. The assessee has raised following grounds of appeal:
“1. That the Id. Assessing Officer has erred both on facts and in law while framing assessment u/s 144/147 of the Act. 2. That no notice u/s 148 and u/s 143(2) was served to the Assessee. Thus the assessment framed is illegal and void.
3. That the addition of Rs 1,09,11,537 made by the the Id. Assessing officer is in contravention to the Act. The Id Assessing Officer has erred for not allowing Capital Gain claimed u/s 54 of the Act to the Assessee.
4. That the Id. Assessing Officer has erred in disallowing deduction u/s 80C of the Act claimed by the Assessee. 5. That the Id. Assessing Officer has erred in ignoring the facts that the Assessee has incurred huge amount on cost of improvement in property sold. 6. That the proper and meaningful opportunity was not provided to the Assessee while framing the assessment u/s 144/147 of the Act. Thus the order framed is unjustified and bad in law. 7. That the Assessee Craves, leave to add, alter, modify and to delete any ground of appeal before or at the time of hearing.”
The facts, in brief, are that in this case assessee had filed his return of income declaring income of Rs. 13,08,901/- on 23.12.2010. The source of income was disclosed as capital gains and other sources. The assessee also claimed long term capital gain of Rs. 1,29,22,400/- as exempt u/s 54 of the Income-tax Act, 1961 (in short “the Act”). The case of the assessee was reopened by the assessing authority u/s 147 and assessment was passed ex parte to the assessee u/s 144 read with section 147 of the Act. Thereby the AO assessed income at Rs. 1,23,33,438/-. Aggrieved against this the assessee preferred appeal before the learned CIT(Appeals), who also dismissed the appeal ex parte to the assessee. Now the assessee is in appeal before this Tribunal.
At the outset learned counsel for the assessee submitted that under the identical facts the Tribunal in the case of co-owner i.e. wife of the assessee, was pleased to set aside the orders of the authorities below and directed the AO to frame assessment afresh.
On the other hand, learned DR supported the orders of the authorities below.
We have heard the rival submissions and perused the material available on record.
The Revenue has not disputed the fact that the Tribunal in in the case of Smt. Gajinder Sahni Vs. ITO had set aside the impugned orders by observing as under:
“4. We have given a dispassionate consideration to the contentions of the appellant. The appellant ahs furnished her new residential address being House No. 37, Phase 3/B-1, Mohali S.S. Nagar, Punjab 160069. The Mobile Number as given by the assessee is 8427440856. We set aside the assessment to the file of the Assessing Officer. The Assessing officer is directed to issue notice on the aforementioned address and give fresh opportunity to the assessee to explain her case. The Assessing Officer may also inform the assessee on her given Mobile number in the interest of justice and fair play. The assessee is directed to attend the assessment proceedings as and when called for and comply with the queries of the Assessing Officer.”
For the same reasoning the impugned order is set aside and the assessment is restored to the file of the assessing authority to make assessment afresh after giving adequate opportunity of hearing to the assessee. The grounds raised in appeal are allowed for statistical purposes.
Assessee’s appeal is allowed for statistical purposes.
Order pronounced in open court during the course of hearing on 18.10.2022.