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Facts
The assessee, a private limited company in real estate, disclosed a loss of Rs.45,44,599/-. The AO invoked Section 43CA for transfer of land below stamp duty valuation, adding Rs.19,11,93,825/-. The assessee's appeals against the AO's orders were dismissed by the CIT(A)/NFAC for non-prosecution.
Held
The Tribunal held that the CIT(A)/NFAC erred in dismissing the appeals for non-prosecution without correlating the reply filed in a related appeal. The Tribunal set aside the CIT(A)/NFAC's orders and remanded the matters back for fresh adjudication.
Key Issues
Whether the CIT(A)/NFAC was justified in dismissing the appeals for non-prosecution when the assessee had submitted a reply in a related appeal concerning the same addition.
Sections Cited
143(3), 154, 142(1), 143(2), 43CA
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, PUNE BENCH “A”, PUNE
Before: SHRI R. K. PANDA & SHRI VINAY BHAMORE
िनधा�रण वष� / Assessment Year : 2016-17 Airawat Developers Pvt. Ltd., Vs. ITO, Ward-1(1), Pune. Office No.U5/6, Runwal Platinum Plot No.3-B, Ramnagar Colony, Bavdhan, Pune- 411022. PAN : AACCN3380M Appellant Respondent Assessee by : Shri Nikhil S. Pathak Revenue by : Shri Amol Khairnar Date of hearing : 12.02.2025 Date of pronouncement : 06.05.2025 आदेश / ORDER
PER VINAY BHAMORE, JM:
The above two appeals filed by the assessee are directed against the separate orders dated 29.07.2024 and 08.11.2024 passed by Ld. CIT(A)/NFAC which, in turn, have arisen from assessment order dated 29.12.2018 passed u/s 143(3) and rectification order dated 11.03.2019 passed u/s 154 r.w.s. 143(3) of the IT Act for the assessment year 2016-17 respectively.
Since both the above captioned appeals relate to the same assessee, therefore, we proceed to dispose of the same by this common order. 3. First, we shall take up the appeal of the assessee in for adjudication. (As against 143(3) : 4. Facts of the case, in brief, are that the assessee is a private limited company engaged in real estate construction business and has furnished its return of income by disclosing loss of Rs.45,44,599/-. The case was selected for complete scrutiny. Notices u/s 142(1) and 143(2) were issued and in compliance to the same assessee company has submitted its reply. The Assessing Officer found that the assessee company has transferred land which was held by the assessee company under work in progress, to other person at a value lower than the value adopted by Stamp Valuation Authority and accordingly Assessing Officer invoked section 43CA and added the difference amount of Rs.19,11,93,825/- to the income of the assessee company. While doing so, the Assessing Officer allowed the set-off of current year loss of Rs.45,44,599/- and completed the assessment by determining total income of Rs.18,66,49,231/- as against the loss returned by the assessee at Rs.45,44,599/-. The assessee filed appeal against the above assessment order dated 29-12-2018. Subsequently, the Assessing Officer also passed an order dated 11-03-2019 rejecting the application u/s 154 of the IT Act filed by the assessee and the assessee again filed separate appeal against the 154 order passed by the Assessing Officer.
Since the assessee remained absent, Ld. CIT(A)/NFAC dismissed the appeal for want of prosecution. It is this order against which the assessee is in appeal before this Tribunal.
Ld. AR appearing from the side of the assessee submitted before us that the order passed by Ld. CIT(A)/NFAC is unjustified. Ld. AR submitted before us that admittedly Ld. CIT(A)/NFAC has issued total three effective notices on email ID but the assessee could not appear on the dates of hearing since the above email ID was not regularly used by the assessee company. However, it was submitted by Ld. AR that the assessee has already complied & furnished written submission in response to notice issued by Ld. CIT(A)/NFAC in the appeal filed against 154 order, wherein the same addition is challenged. Ld. AR further submitted before the bench that Ld. CIT(A)/NFAC ought to have decided both the appeals together and considered the reply already filed in appeal against 154 order since in the memo of appeal filed before him, the fact of appeal filed against original assessment order was clearly mentioned. Accordingly, Ld. AR submitted that the reasoning given by Ld. CIT(A)/NFAC that no submission was filed by the assessee is not correct.
It was further contended by Ld. AR that the appeal against the original assessment was dismissed for want of prosecution & the appeal against the 154 order was decided against the assessee since Ld. CIT(A)/NFAC was of the view that the issue is debatable & there is no mistake apparent on the face of the record. It was accordingly submitted before the Bench that even after furnishing the written submission, may be in another appeal, involving the similar addition the appeal was dismissed by observing that no submission was filed which causes genuine hardship upon the assessee and therefore, it was requested before the Bench to set- aside the order passed by Ld. CIT(A)/NFAC and remand the matter back to him with a direction to decide the appeal afresh after providing reasonable opportunity of hearing to the assessee so that the assessee company can substantiate the grounds of appeal
8. Ld. DR appearing from the side of the Revenue relied on the orders passed by the subordinate authorities and requested to confirm the same.
9. We have heard Ld. Counsels from both the sides and perused the material available on record. In this regard, we find that the Assessing Officer invoked section 43CA and accordingly made addition of Rs.19,11,93,825/-. However, it was the claim of the assessee that no such transfer of immovable property has taken place therefore question of addition on the basis of difference in stamp duty valuation and the sale consideration does not arise. Subsequently, when the assessee company challenged the above assessment order before Ld. CIT(A)/NFAC the same was dismissed for non-prosecution. It is the sole grievance of the assessee company that another appeal for the same assessment year against the same addition, although against 154 order passed by the Assessing Officer, was also filed before Ld. CIT(A)/NFAC and in that appeal the assessee has already furnished its reply on 28.10.2022, the same reply ought to have been considered by Ld. CIT(A)/NFAC in this appeal also. We find Ld. CIT(A)/NFAC could not correlate the reply already filed by the assessee, which eventually covers the same issue involved in both the appeals, and decided the appeal ex-parte by holding that the assessee has not furnished any reply. Considering the totality of the facts of the case and in the interest of justice, we deem it appropriate to set- aside the order passed by Ld. CIT(A)/NFAC and remand the matter back to the file of Ld. CIT(A)/NFAC to decide the appeal afresh as per fact and law after providing reasonable opportunity of hearing to the assessee, along with other appeal filed by the assessee against 154 order involving the similar addition. The assessee is also hereby directed to respond to the notices issued by Ld. CIT(A)/NFAC in this regard and produce relevant material, if any, in support of grounds of appeal without taking any adjournment under any pretext, otherwise Ld. CIT(A)/NFAC shall be at liberty to pass appropriate order as per law. Thus, effective grounds raised by the assessee are partly allowed for statistical purposes.
10. In the result, the appeal filed by the assessee in is partly allowed for statistical purposes. (As against 154 r.ws. 143(3) : 11. Since we have already set-aside the order passed by Ld. CIT(A)/NFAC against the original assessment order & remanded back the file to him to decide the issue a fresh, we also deem it appropriate to set-side the order passed by him against 154 proceedings & remand the matter back to him to decide the appeal against 154 proceedings along-with appeal against original assessment order after providing reasonable opportunity of hearing