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Facts
The assessee sold an immovable property during the assessment year 2011-12. The Assessing Officer initiated proceedings under Section 147 and 148 of the Income Tax Act, leading to an addition of Rs. 2,65,000/-. The CIT(A) dismissed the assessee's appeal.
Held
The Tribunal held that the CIT(A) passed an ex-parte order without giving the assessee a proper opportunity to present their case. The property was held by a partnership firm and mortgaged with a bank which sold it for recovery of dues.
Key Issues
Whether the CIT(A) erred in passing an ex-parte order and confirming the addition made by the AO without properly considering that the property was sold by the bank on behalf of a partnership firm.
Sections Cited
147, 148, 143(3)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “B” BENCH, AHMEDABAD
Before: DR. BRR KUMAR & MS. SUCHITRA KAMBLE
(Assessment Year: 2011-12) Chandubhai Jashbhai Patel Vs. Income Tax Officer, (Deceased) through Legal Heir Ward-2, Anand, Rupeshkumar Chandubhai Patel, Gujarat-388001 “Chanchal”, Nr. State Bank, Samarkha, Anand-388001 [PAN No.ADRPP8313M] (Appellant) .. (Respondent) Appellant by : Shri Aseem L. Thakkar, A.R. (Adjournment Application Filed) Respondent by : Adjournment Application filed (SR-DR) 15.04.2025 Date of Hearing Date of Pronouncement 16.04.2025 O R D E R PER SUCHITRA KAMBLE, JUDICIAL MEMBER:
The appeal filed by the assessee is against the order passed by the Ld. Commissioner of Income Tax (Appeals), (in short “Ld. CIT(A)”), National Faceless Appeal Centre (in short “NFAC”), Delhi on 01.01.2024 for A.Y. 2011-12.
The grounds of appeal raised by the assessee are as under:
“1. The learned Commissioner of Income Tax (Appeals), NFAC, Delhi has erred in confirming the action of the assessing officer in issuing notice dtd.29.03.2018 u/s. 148 of the Income Tax Act, 1961 which is illegal and bad in law and hence the assessment so made requires to be quashed.
2. The learned Commissioner of Income Tax (Appeals), NFAC, Delhi has erred in confirming the action of the assessing officer in reopening the assessment and Chandubhai Jashbhai Patel (Deceased) through L/h. Rupeshkumar Chandubhai Patel vs. ITO Asst. Year–2011-12 - 2 - passing an order u/s. 143(3) r.w.s. 147 of the Income Tax Act, 1961 which is illegal and bad in law hence the same should be cancelled.
The learned Commissioner of Income Tax (Appeals), NFAC, Delhi has erred in confirming the action of the Assessing Officer in computing the total income at Rs.2,65,03,700/- as against that of Rs.3,700/- declared by the Appellant in the return of income filed on 24.04.2018 in compliance to notice issued u/s.148 of the Act.
4. The learned Commissioner of Income Tax (Appeals), NFAC, Delhi has erred in confirming the addition of Rs.2,65,00,000/- made by the Assessing Officer for the sale consideration of immovable property sold by the bank holding that the appellant was liable to offer the capital Gain.
5. The learned Commissioner of Income Tax (Appeals), NFAC, Delhi has erred in confirming the addition of Rs.2,65,00,000/- made by the Assessing Officer for the alleged sale consideration of immovable property holding that the same has been sold by the appellant without considering the fact that the property in question was held by the Partnership firm namely Chandralok Cold Storage in which appellant was one of the partners further it was mortgaged with the bank who sold the same for the recovery of dues from the firm which is assessed to tax under PAN- AABFC1578D.
6. The appellant prays that the delay in filing of appeal may kindly be condoned.
7. The appellant craves leave to add, alter, amend or modify any of the grounds of appeal
on or before the date of hearing of appeal.”
3. The assessee did not file return of income for the A.Y. 29011-12. As per the information from the Revenue, it was seen that during the year under consideration the assessee sold immovable property for Rs. 2,22,80,220/-. The Assessing Officer initiated proceedings under Section 147 of the Act by issuing notice under Section 148 of the Act on 29.03.2018. The assessee filed his return of income on 24.04.2018 in response to notice under Section 148 of the Act declaring total income at Rs. 3,700/-. The Assessing Officer issued notice under Section 143(2) of the Act on 02.08.2018. The Assessing Officer made addition of Rs. 2,65,000/- being sale consideration of immovable property.
Being aggrieved by the assessment order the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee.
At the time of hearing the Ld. A.R. has filed the adjournment application the same is rejected as the issue involved in the present case is related to the ex-parte order of CIT(A).
The Ld. D.R. relied upon the assessment order and the order the CIT(A).
We have heard Ld. D.R. and perused all the relevant material available on record. There is a delay of 7 days in filing of the present appeal is same is condoned. As the assessee through his Affidavit dated 09.07.2024 has given the genuine reason for the delay. Hence, the delay is condoned.
After going through the order of the CIT(A) it appears that the CIT(A) has passed ex-parte order without granting proper opportunity to the assessee to file the requisite documents to contest the matter before the CIT(A). Besides this from the perusal of Ground No. 2 it appears that the sale consideration of immovable property is actually sold by the bank as mentioned in Ground NO. 4 & 5 and the property in question was held by the partnership firm namely Chandralok Cold Storage in which assessee was one of the partners and the said property was mortgaged with the bank who sold the same for the recovery of dues from the firm. This aspect has not been taken into account by the CIT(A) and the CIT(A) has passed ex- Chandubhai Jashbhai Patel (Deceased) through L/h. Rupeshkumar Chandubhai Patel vs. ITO Asst. Year–2011-12 - 4 - parte order without deciding the case on merit. Therefore, it will be appropriate to remand back this matter to the file of the CIT(A) and the CIT(A) is directed to examine the sale deed and the transactions of sale of immovable property whether is in the name of the assessee or that all partnership firm. Needless to say the assessee be given opportunity of hearing by following principles of natural justice. The appeal of the assessee is partly allowed for statistical purposes.
In the result, the appeal of the assessee is partly allowed for statistical purposes. This Order pronounced in Open Court on 16/04/2025