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Income Tax Appellate Tribunal, KOLKATA BENCH ‘(C
Before: SHRI P.M. JAGTAP, HON’BLE(KZ) & SHRI A. T. VARKEY, HON’BLE]
IN THE INCOME TAX APPELLATE TRIBUNALKOLKATA BENCH ‘(C)’, KOLKATA [BEFORE SHRI P.M. JAGTAP, HON’BLE VICE PRESIDENT (KZ) & SHRI A. T. VARKEY, HON’BLE JUDICIAL MEMBER] [Through Virtual Court] Assessment Year: 2011-12 Smt. Asima Rani Mondal.....................................................................................................Appellant Tetultala Bazar, Burdwan – 713 101. [PAN: AEEPM 5725 N] Vs ITO, Ward – 2(1), Burdwan...........................................................................................Respondent Appearances by: Shri Subho Chakarborty, Advocate appearing on behalf of the Assessee. Shri Supriyo Pal, Addl. CITappearing on behalf of the Revenue. Date of concluding the hearing : September 02, 2021 Date of pronouncing the order : September 08, 2021 ORDER PER P.M. JAGTAP, VICE-PRESIDENT (KZ)
This appeal filed by the assessee is directed against the order of Ld. CIT(A) – Burdwan dated 26.06.2019 passed ex-parte whereby he dismissed the appeal of the assessee for non-prosecution.
The assessee in the present case is an individual who filed the return of income for the year under consideration on 31.03.2012 declaring a total income of Rs. 1,76,840/-. The said return was initially processed by the AO u/s 143(1) of the Act. Subsequently he received information regarding sale of two properties by the assessee and since the capital gain arising from the said sale was not declared by the assessee in the return of income filed on 31.03.2012, the assessment was reopened by the AO. He accordingly issued a notice
Smt. Asima Rani Mondal u/s 148 to the assessee on 07.01.2015 after recording the reasons. The assessee did not comply with the said notice issued by the AO u/s 148 as well as the subsequent notices issued by him u/s 142(1) of the Act. The AO, therefore, was left with no option but to complete the assessment to the best of his judgement on the basis of material available on record. In the assessment so completed u/s 144/147 of the Act vide an order dated 09.02.2016, the total income of the assessee was determined by the AO at Rs. 72,34,824/- after making the following additions: “i. LTCG on sale of vacant land Rs. 1,36,890/- ii. LTCG on sale of land appurtenant to cold storage Rs. 1,36,417/- Rs. 67,84,677/-” iii. STCG on sale of cold storage
Against the order passed by the AO u/s 144/147, an appeal was preferred by the assessee before the Ld. CIT(A) and since there was no compliance on the part of the assessee to the notices issued by him fixing the said appeal for hearing from time to time, the Ld. CIT(A) dismissed the appeal of the assessee for non-prosecution vide his appellate order dated 26.06.2019 passed ex-parte. Aggrieved by the order of the Ld. CIT(A), the assessee has preferred this appeal before the Tribunal. “ 4. We have heard the arguments of both the sides and also perused the relevant material available on record. In order to explain the non-compliance before the AO during the course of assessment proceedings as well as before the Ld. CIT(A) during the course of appellate proceedings, the assessee has filed an affidavit giving the reasons for her non-appearance before the AO as well as before the Ld. CIT(A) as under:
Smt. Asima Rani Mondal “5. That there had been cogent and honest reason for my attendance as I got seriously ill from the month of February, 2019 by several age related diseases as such high hypertension heart ailment, dehydration and severe chest pain due to broncal infection which forced me to be totally bedridden and inactive which I am still now and in support of my said contention I am enclosing all medical documents which will justify and vindicate my honest and bona fide contention of precarious state of my health which is a contributing reason for my partial non attendance before A.O. and full non attendance before CIT(A) since for the year 2016 I became virtually bedridden due to the premature death of one of my son whose untimely death morally and physically destroyed me in test report being enclosed with this affidavit Honble bench.
6. That the said premature demise of my son unnerved me so and landed me in couch of unconsolable sorrows and mental depression that I 10st all my interest in business which is actually looking after by my younger son thenceforth.
That for the aforesaid cogent reasons being duly supported by documental Proof bear the cause of my non attendance before appellate authority since 2016 onward I am totally cut off from material world and all the legal steps have been taken by my younger son who even once attended before A.O. on behalf of me and due to his ignorance about legal world I was mis-guided by various consultants in spite of spending substantial fees by me and at last by Gods grace my hapless son has found an honest and efficient consultant who has availed the august service of most reputed advocate Shuvo Chakraborty, Senior Advocate, ITAT having 17 years practice in ITAT who has taken my cudgel to seek Justice from the divine palpit of court of law £or a poor feeble, mentally and physically destroyed old woman knocking the door of 70 and for whom early death is best compensation in this sorrowful harsh world.
That from documental proofs it is crystal clear that I have no mala fide intention to doge the revenue and only the said unforeseen, most sorrowful developments are sole contributing factors for said dismissal of appeal an d if the Hon’ble bench does not consider my case with divine eyes of sympathy as Such truly hapless and forlon woman deserves and restore back the file to A. O. to whom I shall fully cooperate hence since I have all the relevant documents including books of accounts in possession and I have full faith on my present consultant, then it will be last nail on my coffin. I undertake before Hon'ble bench to render all cooperation to the assessing authority 1f the file is restored back to A.O.”
Keeping in view the reasons given by the assessee as above, we are satisfied that there was a sufficient cause for the non-compliance on the part of the assessee before the AO during the course of assessment proceedings as well as before the Ld. CIT(A) during the course of appellate proceedings. Moreover, as submitted by the ld.
Smt. Asima Rani Mondal counsel for the assessee, the addition on account of long term capital gain was made by the AO to the total income of the assessee by adopting the stamp value as deemed consideration by invoking the provision of section 50C of the Act without making a reference to the Departmental Valuation Officer. He has urged that the matter may therefore be sent back to the AO for making the assessment afresh after obtaining the valuation report from the Departmental Valuation Officer. The ld. DR has also agreed that the matter may be sent back to the AO for proper consideration in accordance with law. We, therefore, consider it fair and proper and in the interest of justice to set aside the impugned order passed by the Ld. CIT(A) ex-parte dismissing the appeal of the assessee for non-prosecution and restore the matter to the file of the AO for making the assessment afresh in accordance with law after obtaining the valuation report from DVO and after giving the assessee a proper and sufficient opportunity of being heard. As undertaken by the assessee in the affidavit, the assessee shall make due compliance before the Assessing Officer and shall extend all the possible cooperation in order to enable the AO to make the assessment afresh expeditiously.
In the result, the appeal of the assessee is treated as allowed for statistical purpose. Order Pronounced in the Open Court on 8th September, 2021.