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Income Tax Appellate Tribunal, DELHI BENCH: ‘I(2
Before: MS SUCHITRA KAMBLE, & SHRI PRASHANT MAHARISHI
ORDER PER SUCHITRA KAMBLE, JM This appeal is filed by the assessee against the order dated 29/6/2018 passed by CIT(A)-1, Noida, for Assessment Year 2010-11.
2. The grounds of appeal are as under:- 1. “That in facts and circumstances of the case the Ld. AO has erred in law in completing the assessment u/s 148 of IT Act, 1961 by making the addition of Rs. 9,37,500/- in the hands of the appellant without issuing notice u/s 143(2) of IT Act, 1961 which is Sine Qua Non under assessment u/s 148 of the IT Act, 1961 which brings the entire assessment to nullity.
Whether the Hon’ble CIT (A)-1, Noida was right in dismissing the appeal of the assessee mentioning that no appearance has been made and therefore appeal has been decided on the basis of records available whereas as per the order sheet the assessee through his authorized representative made appearance on 22.06.2018 and discussed the case with Hon’ble CIT (A) which is against the principle of natural justice.
Whether the Hon’ble CIT (A)-1, Noida was right in dismissing the appeal of the assessee for want of proper compliance of section 249(4) of IT Act, 1961 ignoring the fact that while filing the facts of the case, assessee has clearly mentioned that the assessee has below taxable limit income and due to this reason the assessee has not filed his ITR for the assessment year. The presumption taken by Hon’ble CIT(A)-1 Noida for requirement of compliance u/s 249(4) of IT Act, 1961 is devoid of merits and hence the same is liable to be reversed.
Whether the Hon’ble CIT (A)-1, Noida was right in dismissing the appeal of the assessee for want of proper compliance of section 249(4) of IT Act, 1961 without giving any show cause notice to the assessee, without informing the assessee during the personal hearing and by denying the admission of appeal u/s 249(4) after issuing the notice for hearing and allowing the assessee for personal hearing on merits of the case which in itself is to be considered as admission of appeal which is against the principle of natural justice and illegal in law.
Whether the Hon’ble CIT (A)-1, Noida was right in dismissing the appeal of the assessee without taking any cognizance of the submission made in facts of the case along with documentary evidences filed by the assessee at the time of filing of the appeal in Form 35 of IT Act, 1961 which is against the principle of natural justice.
Whether, the Hon’ble CIT (A) was right in denying the benefits of Section 54 of the Income Tax Act, 1961 without considering the details as provided in facts of the case along with documentary evidences at the time of filing of the appeal in Form 35 of IT Act, 1961 which is against the principle of natural justice.
3. The assessee purchased a flat from Supertech Ltd. Builder after selling out of the said capital property for Rs.22,50,000/- + stamp duty on 6/6/210 and payment was made for Rs. 21,37,500/- on different dates. The details of the payments receipts and confirmation letter given by the Supertech Ltd. was submitted before the Assessing Officer along with calculation of capital gain/loss. The assessee did not receive any notice sent by the Assessing Officer as per the contentions of the assessee before the CIT(A) and, therefore, could not appear before the Assessing Officer. The assessment order was passed u/s 144/147 of the Income Tax Act, 1961 by making an addition of Rs. 9,37,500/- under the head long term capital gain.
4. Being aggrieved by the assessment order, the assessee filed appeal before the CIT(A). The CIT(A) dismissed the appeal of the assessee holding that the present appeal cannot be admitted for want of jurisdiction.
5. At the time of hearing, none appeared for the assessee and there is no application for adjournment. The notice has been duly served to the assessee. Therefore, we are proceeding on the basis of the submissions made by the assessee before the Assessing Officer as well as before the CIT(A).
6. The Ld. DR relied upon the assessment order and the order of the CIT(A).
We have heard the Ld. DR and perused the material available on record. It can be seen from the perusal of the order of the CIT(A) that the CIT(A) has not given a categorical finding on the merit of the case and simply dismissed the appeal on the ground of want of jurisdiction. Hence, we are remanding back the entire issues to the file of the CIT(A) to be decided on merit. 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 purpose.
In result, the appeal of the assessee is partly allowed for statistical purpose. Order pronounced in the Open Court on 26th FEBRUARY, 2020.