MUKESH,JAIPUR vs. ITO WARD 2(1), JAIPUR

2 communicated the notices to erroneous e-mail ID which triggered the ex-parte disposal resulted in delay. The reasons advanced for this delay is apparent as from the supporting evidence filed by the assessee that while writing spelling of Khandelwal it was written as Kandelwal. That email spelling were different and therefore, the assessee has sufficient reason of non appearance before the ld. CIT(A) and that is why even the appeal was delayed. Considering the facts of the case on hand and decision of the apex court in the case of Collector, Land & Acquisition Vs. Mst. Katiji& Others 167 ITR 471(SC) wherein it was directed the other courts to consider the liberal approach in deciding the petition for condonation as the assessee is not going to achieve any benefit for the delay in fact the assessee is at risk. 2.3. While hearing, the ld. DR objected to assessee’s application for condonation of delay and prayed that the reasons advanced are not sufficient and reasonable cause but at the same time he did not object the contention raised in the affidavit. 2.4 the correct spelling as the email were sent on ashishkandelwal instead of ashishkhandelwal. Thus, we concur with the submission of the assessee and condone the delay of 281 days in filing the appeal by the assessee in view of the decision of Hon’ble Supreme 3. In this appeal, the assessee has raised following grounds: - “1. That the Id CIT (A) has grossly erred in law as well in facts of the case in dismissing the appeal owing to non-compliance without effecting proper service of appeal fixation notice, in as much all notices were sent to non-existing email address.

That the lower authorities have erred in law as well in facts in making/confirming addition of Rs. 10,48,366/- as long-term capital gain on account of sale of immovable property without allowing the benefit of cost of acquisition.

That the lower authorities have erred in law as well in facts of the case bringing alleged long term capital gain under ambit of section 68 and calculated tax on higher rate as specified u/s 115BBF without understanding appreciating that the provisions of section 115BBE were introduced into statute book w.e.f. Α.Υ. 2013-14. 4. That the lower authorities have erred in law as well in facts in providing reasonable opportunity of being heard to the appellant thereby violated fundamental principle of natural justice. 5. That the appellant reserves his right to add, amend, alter or withdraw any ground of appeal on or before hearing of this appeal.”

The brief facts of the case are that the assessee is an individual has not filed his return of income for the assessment year 2011-12. In this case, notice issued u/s 148 of the I. T. Act, 1961 on dated 25.03.2018 after recording the reasons for reopening the case & getting necessary approval by the Pr. Commissioner of Income Tax-1. Jaipur, which was duly served upon the assessee through speed post. In compliance with this notice, assessee not filed its e-ROI. Again, notice issued u/s 142(1) dated 24.08.2018 for compliance of notice issued u/s 148 and for query mentioned therein and was duly served at the last known address of the assessee through Inspector of the ld. AO. As per inspector' report that address of the assessee was not found, hence could not be served notice to the assessee. Notices issued at the last known address available with office of the ld. AO could not be served. During entire assessment proceedings, the assessee not made any compliance against the notice issued u/s 148 and the notice issued u/s 142(1) for submission of Sh. Mukesh vs. ITO 6 details/information required during the course of assessment proceeding. 4.1 As there was an information from the office of the DIT (I&CI), Jaipur vide letter no. DIT(I&CI)/ITO(Hqrs)/[PR/2017-18/813 dated 26.10.2017 where in it was communicated that the assessee has sold immovable property at Room No. F6 First Floor, House No. 329, Lalaniyon Ka Chowk Inside Gopal Ji Ka Rasta, Jaipur for sale consideration of Rs 9,50,000/-, the DLC rate was of Rs.10,48,366/ The assessee has not shown the above transaction of sale of immovable properties in the ITR. The assessee has not considered DLC value of Rs.10,48,366/-for computation of capital gain. Accordingly notice u/s. 148 of the Act issued but the assessee did not response to the notice u/s. 148 and thereafter notice u/s. 142(1). During entire assessment proceedings, assessee has failed to disclosed income on sale of immovable property at Rs. 10,48,366/- therefore the same was treated the undisclosed income of the year u/s 68 r.w.s 115BBE of the Act. 5. Feeling dissatisfied with the order of assessment the assessee preferred the appeal before the ld. CIT(A). The Ld. 30.03.2021, 20.04.2021, 12.04.2023 & 04.05.2023 and requiring the assessee to file the details in support of grounds taken by the assessee. Since the assessee has not complied with the notices issued the ld. CIT(A) dismissed the appeal of the assessee ex- parte order. The extract of the finding of the ld. CIT(A) is reproduced as under:- “I have gone through the facts of the case. For reasons best known to him, the appellant had not complied at all to any of the notices/letters issued by the AO during the course of hearing. In such an instance, the AO had no other option but to pass an ex-parte penalty order. Notice issued to her by this 20.12.2019,30.03.2021,20.04.2021, 12.04.2023,04.05.2023 have yielded no replies. All I have on record filed by the appellant is the Form 35, where the appellant submits that the AO's action is bad in law, and that he objects to the addition. There are no other supportings, and none have been filed even after serving of the notices referred to above. In such a situation, it is obviously difficult for me to accept the appellant's submission, since he has provided me with absolutely no documents. The number of opportunities granted to the appellant are innumerable, and yet, he chose to remain silent. APPEAL IS DISMISSED.” 6. During the course of hearing, the ld. AR for the assessee prayed that the Ld. CIT(A) and the AO has passed the ex-parte order and the assessee was not provided adequate opportunity of being heard. The reasons for non compliance before the ld. CIT(A) is discussed with dealing with he condonation of appeal before us and that is why even the compliance to the notice of the ld. CIT(A) was not made. Thus, the assessee may be provided one more opportunity to advance his arguments/submissions before the ld. AO in the interest of equity and justice. 7. Per contra, Ld. DR objected to the prayer of the assessee and submitted that even the assessee did not represent case before the ld. AO and therefore, in that case the Bench feels the matter may be restored to the file of the Assessing Officer. 8. We have heard both the parties and perused the materials available on record. The bench noted from the order of ld. CIT(A) that the appeal of the assessee was dismissed by the ld. CIT (A) for want of non-prosecution of the appeal on the various notice issued by him, but the assessee did not appear or filed any reply to the notices. The bench noted whatever notices which were issued should have to be addressed on the email id containing ashishkhandelwal_ca@yahoo.com but by mistake the same were made at kandelwal and that is why the assessee has not responded to that notice. The email id was written correctly in Form no. 35. Thus, the bench feels that in this case the principles of natural justice is violated and same being the soul of an administration of justice and need to be adhered to in order to make the order as a just and fair order. We are also of the view that lis between the parties must be decided on merits so that nobody’s rights could be scuttled down without providing opportunity of being heard to the assessee. Thus, the bench noted that considering the overall facts of the case the assessee be given a chance to represent their case before the ld. AO as the order passed in both proceedings are ex-parte. Order pronounced in the open Court on 01/04/2025. ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBkSM+ deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judcial Member ys[kk lnL;@Accountant Member