SHAILESH K. KOTHARI,MUMBAI vs. INCOME TAX OFFICER, WD-19(3)(5), MUMBAI

PER GIRISH AGRAWAL, ACCOUNTANT MEMBER:

2.0 On facts and circumstances of the case and in Law, Ld. CIT(A) erred in confirming the addition u/s.68 of entire sale consideration of immovable property sold during the year of Rs.35,13,615/- and ought to have assessed the income as 'Long Term Capital Gain, after allowing the reduction of cost of acquisition of such property; 3.0 Without prejudice to Ground no.2.0, Ld. AO erred seriously in making the addition of entire sale consideration of Rs.35,13,615/- in hands of the appellant (1 co-owner), on ignoring the fact that share of other 2 co-owners cannot be taxed in hands of the appellant; 4.0 On facts and circumstances of the case and in Law, Ld. CIT(A) erred in confirming the addition u/s.68 of cash deposits made in bank account of Rs. 12,00,000/-, though such sum had been received on sale of long term capital asset (Property-residential house); 5.0 Without prejudice to Ground no.4.0, Ld. AO erred in making a separate addition u/s 68 of Rs. 12,00,000/-, though such sum is a part of sales consideration already brought to tax of Rs.35,13,615, thereby resulting into double taxation.”

3. Before us, ld. Counsel for the assessee has placed on record an affidavit of the assessee to explain the reasons for not attending the Shailesh K. Kothari, AY 2011-12 proceedings before the authorities below. The same are reproduced as under: "2.0 THAT, I could not participate in the assessment and 1 appeal proceedings related to Assessment year 2011-12 and accordingly, Ld. AO passed the assessment order exparte u/s 144 and Ld. CIT(A) had dismissed the appeal in limeline. I state and declare that my non-compliance during course of assessment and 1" appeal proceeding had occurred under the bonafide reasons and compelling circumstances beyond my control, stated as under :-

a) As per assessment order, Ld. AO had issued only I notice of hearing on 17/07/2018. However, the said notice was not served to me, since may have been dispatched at my old address situated at 165-B, Navshanti Nagar, 98, Nepean Sea Road, Mumbai -400006. I had shifted my place of residence at F-641, Garden Court Building, LBS Marg, Ghatkopar (West), Mumbai 400086. The intimation of change of my address had provided to the Income tax department, however the page-2 of assessment order discloses the service of notice of hearing by affixture. The Ld. AO, though aware of my above stated residential address (since registered sale agreement under his possession disclosed my residential address of Ghatkopar, Mumbai) had dispatched the notice of hearing at my old address situated at Nepean Sea Road, Mumbai. It is due to non-receipt of notice of hearing, I could not furnish the relevant details/documents on assessment record; c) I could not attend the 1st appeal proceeding, since I was suffering from serious medical illness related to neurological disorder, depression and travel phobia. In support, copies of my medical reports and prescriptions are enclosed herewith; d) My earlier Chartered Accountant Mr. Rajesh Jain deserted me and did not advise me to furnish the details and documents on record. I am an undergraduate and am not conversant with the Income Tax Law and therefore, I could not furnish the relevant details/documents on record.

I state and declare that there was no gross negligence or willful attempt to avoid the furnishing of details/documents before the assessing officer and 1 Appellate authority. I make a humble and respectful prayer before the Hon'ble ITAT to adopt a liberal approach and admit the relied documents filed as additional evidence and grant me a final opportunity to dispute the additions made in the assessment order."

4.1. He also placed on record information made available on the portal of the Department about change of his address. Assessee also furnished medical records to support the averments in the affidavit, with respect to medical issues faced by him.

Shailesh K. Kothari, AY 2011-12 5. We have considered the submissions made by the ld. Counsel, seeking restoration of the matter back to the file of ld. Assessing Officer. Considering the aforesaid submissions, in the interest of justice and fair play, we find it appropriate to remit the matter back to the file of ld. Assessing Officer for denovo meritorious adjudication, on the issues raised by the assessee in his appeal. Needless to say, assessee be given reasonable opportunity of being heard and to make any further submissions, if so desired. Assessee is also directed to be diligent in attending the hearing proceedings. Accordingly, grounds taken by the assessee are allowed for statistical purposes.