BHUPENDRA ARVINDLAL DORIWALA,SURAT vs. ITO, WARD 2(2)(1), SURAT

The assessee has raised the following grounds of appeal: “1. On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in reopening the assessment u/s 147 of the Act and notice u/s. 148 of the Act was issued.

On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in making addition of Rs.7,50,000/- on account of 1/4 share of property sold treated as alleged undisclosed long term capital gain.

On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in making addition of Rs.9,07,237/ on account of difference between sale consideration reflected in the sale deed as well as the value as per Stamp Valuation Authority treated as income under the head of long term capital gain by invoking provision of Sec.50C of the Income Tax Act, 1961.

On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has not offered adequate opportunities to hear and passed ex-parte order. hence, the case may please be set aside and restored back to the CIT(A) or AO for sake of the interest of natural justice.

On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in initiating Penalty Proceedings u/s.271(1)(c) of the Act.

It is therefore prayed that the above addition may please be deleted as learned members of the tribunal may deem it proper.

Appellant craves leave to add, alter or delete any ground(s) either before or in the course of the hearing of the appeal." 3. The assessment year is involved for AY 2012-13 relevant to year ended on 31.03.2012. As per information, the assessee has failed to file his return of income for the year under consideration and sold an immovable property along with 3 other co-seller situated at plot no.88, China Gate, Althan, Surat for consideration of Rs.30,00,000/-. On this sale deed stamp duty of Rs.3,25,000/- has been paid. The fair market value of the said property as worked out by the stamp duty valuation authorities is Rs.66,28,949/-. Hence, there is a difference of Rs.36,28,949/- between the sale consideration reflected in the sale deed as well as the value as per stamp valuation authority. The case was reopened u/s. 147 of the Income Tax Act, 1961 (in short “the Act”) and notice u/s.148 of the Act was issued

Being aggrieved by the assessment order, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee.

The Ld. Authorised Representative (in short “Ld. AR”) for the assessee submitted that there is a delay of 6 days in filing the present appeal for which the assessee has filed the affidavit. The reasons given thereunder appears to be genuine for delay, hence the delay is condoned. the Ld. AR submitted that the assessment order as well as the order of the CIT(A) is ex- parte as the assessee did not receive the notice of hearing as reflected in the extracts of expenditure-proceedings filed before the Tribunal. The Ld. AR therefore requested that the matter may be remanded back to the file of the AO.

The Ld. Departmental Representative (in short “Ld. DR”) relied upon the assessment order and the order of the CIT(A).

We have heard both the parties and perused all the relevant material available on record. It is pertinent to note that both the authorities have passed ex-parte orders and there are no details given by the AO as well as by the CIT(A) that notices of hearing were properly served to the assessee. Therefore, it will be appropriate to remand this matter back to the file of the AO for verification of the details/evidences filed by the assessee and adjudicate the issue om merit as per Income Tax Act. Needless to say, the assessee be given opportunity of hearing by following principles of natural justice.