BAHADUR SINGH ,ZIRAKPUR vs. ITO WARD 3(5), CHANDIGARH

After considering the condonation application filed by the assessee in the present appeal, we condone the delay for which sufficient cause is shown, and admit the appeal for adjudication.

In the present appeal Assessee has raised the following grounds: 1. That the Ld. Commissioner of Income Tax-(Appeals) has wrongly upheld addition of Rs. 1,41,53,773 without giving any reasonable opportunity of being heard it is requested to set aside the order and restore the appeal to CIT Appeal for adjudication on merit.

That the Ld CIT(A) has wrongly confirmed the action of assessing officer for initialing assessment proceedings u/s 143(3) r.w.s 147 of Income Tax Act.

The learned CIT appeal has wrongly upheld the action of assessing officer who taxed the Capital Gam in the hand of assessee whereas land sold belongs to assessee HUF.

That the CIT Appeal has wrongly upheld the sale consideration of Agriculture land at RS 6,41.87,500 in place of actual sale consideration Rs. 2,20,00,000. 5. The learned CIT has erred by upholding the disallowance of Rs. 10.29,233 u/s 54B

Briefly the facts of the case are that is an agriculturist and not filed return for A.Y 2012-13. The AO had information that the assessee, who had one-half share in land measuring 29 Bigha 14 Biswa, had entered into an agreement with Sh. Baldev Chand Bansal, Director M/s BCL Homes Ltd. for sale of land and as per sale deed, sale of 13 bighas was made during the year under consideration. The AO issued notice u/s 148 of the Act on 24.03.2019. In response to notice u/s 148 of the Act, the assessee furnished return on 26.04.2019 declaring total income at Rs.1,61,900/- under the head income from other sources. The assessee had shown Long Term Capital Gain of (-) Rs.86,15,000/-, against the sale consideration of land declared at Rs.2,20,00,000/-. The assessee also claimed to have invested Rs.2,03,65,820/- eligible for deduction u/s 54B of the Act. The AO passed order u/s 143(3) rws 147 on 29.11.2019 determining total assessed income at Rs.1,43,15,673/- and made addition of Rs. 1,41,53,773/- on account of income from Long Term Capital Gain.

Against the order of the Ld. AO the assessee went in appeal before the Ld. CIT(A) who has since dismissed the appeal of the assessee.

Feeling aggrieved the assessee carried the matter in appeal before us.

During the course of hearing, the Ld. AR submitted that the Ld. CIT(A) has passed an ex-parte order without providing adequate opportunity to the assessee. It was submitted that the notices so issued by him has not been 3

Per contra, the Ld. DR relied on the order of the Ld. CIT(A) wherein the Ld. CIT(A) has held as under:

0 DECISION The right to appeal under Chapter XX of the Income-tax Act, 1961, is a invaluable right of a tax payer, therefore, it needs to be exercised with due caution and care by him. It is also worthwhile to mention the famous saying as under: “VIGILANTIBUS, NO DORMENTIBUS JURS SUBVENIUNT” (“Law assists those who are vigilant and not those who sleep over their rights”) The facts on record indicate that the appeal was filed on 26.12.2019, which is almost 3 and ½ years ago and thereafter in response to various notices of hearing issued by this Office, from time to time, the appellant remained non-cooperative. The events and details of the non-attendance by the appellant, on the said dates are as under:

1 Hearing Notice has been sent to the appellant via mail Ids mentioned below, the appellant has not responded. jaswindermanku2@gmail.com During the course of appellate proceedings, as is discussed above, neither the appellant nor his AR has made any submission to support his claim. Keeping in view the facts of the case, it is apparent that, the appellant has nothing to offer any explanation in support of his grounds of appeal. The conduct of the appellant shows that, the appellant is approaching the appeal in a very casual

4 The Hon’ble Bombay High Court has finally laid down proposition as under: “An appellant who on account of his place or residence or business being far away from the place of sitting for the Tribunal may not except at a high cost be able to attend the hearing especially when as we know that the matters are adjourned for several times. In such an event, if the appellant files on record his submissions in writing, the Tribunal must decide the appeal on merits on the basis of the said submissions. In that case, the Tribunal would not have a power to dismiss the appeal for but where the appellant inspite of notice is persistently absent and the Tribunal on facts of the case is of the view that the appellant is not interested in prosecuting the appeal, it can in exercise its inherent power to dismiss the appeal for non-prosecution. Of course, the conclusion of the Tribunal that the appellant is not interested in prosecuting the appeal must be reached on the facts of each case and not merely on account of absence of an appellant on a solitary occasion.”

5 The Hon’ble High Court of M.P. in the case of Estate of Tukojirao Holkar V. CWT 23 ITR 480) had held that “ If the party, at whose instance – the reference is made at, fails to appear at hearing – the court is not bound to answer the reference”

6 (Relevant pages 477 & 478) had held that-

7 The Hon’ble ITAT Delhi (ITR No.2006/Del/2011 dt.19.12.2001) in the case of Whirlpool of India Ltd. v. DCIT had dismissed appeal for not attending hearing inferring that assessee is not interested in prosecuting of appeal. Thereafter in another decision in the case of Chadha Finlease Ltd. V. ACIT (ITA No.3013/Del/2011 date of order 20.12.2011) the Hon’ble ITAT had dismissed the appeal for non attending hearing inferring that the assessee is not interested in pursuing the appeal.

8 In view of the aforesaid discussion and relevant judicial pronouncements, the appeal filed by the appellant may be dismissed without going into merits of the case.

We have heard the rival contention and perused the material available on the records. In the present case the Ld. CIT(A) has given the four dates namely 22/01/2021, 17/04/2023, 25/04/2023 and 15/05/2023 to the assessee to present the appeal and thereafter had decided the appeal by applying decision in the case of Multiplan (supra). In our considered opinion it is the duty of the Ld. CIT(A) to decide the issue on merits even if the assessee failed to appear in the appellate proceedings. The ld. CIT(A) cannot dismiss the appeal of the assesse merely because the assessee failed to participate in the appellate proceedings. In view of the above we find that the assessee deserves one last opportunity and cannot be condemned unheard and 6

In the result, appeal of the Assesee is allowed for statistical purposes.

अपीलाथŎ/ The Appellant 2. ŮȑथŎ/ The Respondent 3. आयकर आयुƅ/ CIT 4. िवभागीय Ůितिनिध, आयकर अपीलीय आिधकरण, चǷीगढ़/ DR, ITAT, CHANDIGARH 5. गाडŊ फाईल/ Guard File