HARI RAM BISHNOI,RAJASTHAN vs. ITO, WARD-1, PALI, RAJASTHAN

Primary grievance of the assessee is against ex-parte orders passed by the Assessing officer and learned First Appellate Authority.

In course of assessment proceeding, as alleged by the Assessing Officer, the assessee did not comply with the statutory notices issued from time to time. Hence, the Assessing Officer proceeded to complete the assessment ex-parte to the best of his judgment, invoking the provisions of Section 144 of the Act. Challenging the assessment order, the assessee filed an appeal before learned first appellate authority. However, due to absence of the assessee in course of appellate proceeding, the appeal was disposed of ex-parte by upholding the addition made by the Assessing Officer.

Before us, learned counsel for the assessee submitted that due to demise of earlier counsel, the assessee remained unrepresented before the Assessing Officer and learned first appellate authority. He submitted that the subject land on sale of which the capital gain was derived, is an agricultural land, hence cannot be considered as capital asset. Therefore, there is no question of assessee offering any taxable capital gain derived from sale of

Learned Departmental Representative submitted that the evidences now furnished by the assessee have not been examined by the Departmental Authorities as the assessee never appeared before them.

In our considered view, the issue as to whether the subject land is agricultural land or not is essentially a question of fact. The assessee is required to establish the nature and character of the land by producing proper documentary evidence and other relevant material on record. Admittedly, the assessee did not appear before the learned Departmental Authorities, hence the claim of the assessee remained unverified. At this stage, the assessee has come up with the additional evidences. However, since such evidences were not examined in the earlier stages, to provide a fair opportunity to both parties, we are inclined to restore the issue to the file of the Assessing Officer for examining assessee’s claim afresh, keeping in view the additional evidences filed by the assessee before us.

It is open to the assessee to furnish further evidence to support his claim that the subject land was an agricultural land, hence does not qualify as a capital asset. Before deciding the issue, Assessing Officer must provide reasonable opportunity of being heard to the assessee.

In the result, appeal is allowed for statistical purposes and stay application having become infructuous is dismissed.