MADAN LAL CHOUDHARY,JAIPUR vs. ITO-7(1), JAIPUR

2 The ld. AR of the assessee vehemently argued that reasons for delay and dismissal of appeal are same as the assessee was not served the notices as required and even the order was not served upon the assessee and the assessee came to know when the recovery proceeding the assessee was called upon and that being the fact resulted into a delay of filling the present appeal by 158 days. Ld. AR considering that fact and relying on the decision of the apex court in the case of Collector, Land & Acquisition Vs. Mst. Katiji& Others 167 ITR 471(SC) submitted that the delay may Sh. Madan Lal Choudhary vs.ITO 3 be condone as the assessee is at risk of not filling the appeal on time and on being aware immediately presented the appeal. 2.3. During the course of hearing, the ld. DR objected to assessee’s application for condonation of delay and prayed that Court may decide the issue as deem fit and proper in the interest of justice. 2.4 We have heard both the parties and perused the materials available on record. The Bench noted that the email id was of the counsel and the same was put to the notice of the assessee and thereby resulted to the delay in filling the present appeal. As pointed out the fact are clear that in this case the principles of natural justice has been violated as confirmed by the assessee in his affidavit. Our constitution guarantee that right vide Article 14. Since that is so and was not controverted by placing anything contrary we considered the reasons advanced in the affidavit by the assessee and condone the delay in filling the present appeal. 3. The assessee has marched this appeal on the following grounds:- “1. The Ld CIT(A) has erred on facts and in law in dismissing the appeal of the assessee for non-prosecution, whereas in view of Section 250(6) of the Act, the CIT(A) has no power to dismiss an appeal on account of non-prosecution, as held by Hon'ble Bombay High Court in CIT vs. Premkumar Arjundas Luthra HUF, (2017) 291 CTR 614 (Bom.) Sh. Madan Lal Choudhary vs.ITO 4

The Ld CIT(A) has erred on facts and in law in confirming the addition made by the AO who had arbitrarily rejected the explanation of assessee and not considered Indexed cost of acquisition of Rs. 75,86,705/- u/s 48 in computing capital gain.

The Ld CIT(A) has erred on facts and in law in confirming the addition made by the AO who had rejected the explanation of assesse and not considered cost of improvement of Rs. 2,50,000/- u/s 48 in computing capital gain.

The Ld CIT(A) has erred on facts and in law in confirming the addition made by the AO not considering the fact that exemption u/s 10(37) was otherwise available to the assessee.

That the Appellant reserves his right to add, amend/modify the grounds of appeal. “

The fact as culled out from the record is that the assessee e- filed his Income Tax Return for the A.Y. 2017-18, on 30-06-2017 by declaring total income of Rs. 3,69,350/-. Thereafter, the case was selected for scrutiny under CASS. Therefore, notice u/s 143(2) of the Income Tax Act, 1961 was issued on 09-08-2018, which was duly served upon the assessee. Further, notice u/s 142(1) of the Act, 1961 along-with query letter was issued, and change in new incumbent a fresh notice u/s 142(1) of the I.T. Act, 1961 was issued. In response, thereto the assessee has filed submissions through online portal and furnished part details / information. Thereafter show cause notice dated 18-11-2019 and 25-11-2019 Sh. Madan Lal Choudhary vs.ITO 5 was issued fixing the case for hearing on 20-11-2019 and 27-11- 2019 but no compliance was made by the assessee. 3.1 The assessee running a floor mill in the name and style M/s Shree Shyam Food Product and declared income under the head of business and profession and income from other sources in the year under consideration. On the basis of information gathered during the proceedings through portal. It is under preview the reason of CASS that the assessee has sold an immovable property and not declared capital gain and amount equal to sales consideration declared as exempted income in ITR. Further he made cash deposits in bank accounts between 9th November, 2016 to 30th December, 2016 during Financial Year 2016-17 relevant to Assessment Year 2017-18. The assessee was asked to furnish documentary evidences regarding capital gain and exempt income but he fails to remain explained about capital gain. 3.2 During the course of proceedings A/R of the assessee has provided part reply dated 11-11-2019 and ask reasonable time. Thereafter due to limitation of time to compete assessment proceedings show cause notices were issued on 18-11-2019 and 25-11-2019, but no response of assessee neither his A/R, show Sh. Madan Lal Choudhary vs.ITO 6 that they are willfully avoiding statutory proceedings to hide the unexplained income. At last A/R of the assessee has submitted reply dated 11-12-2019, in which he stated that immovable property transaction is exempted u/s 10(37) the Income Tax Act, 1961, due to sold residential property has allotted by JDA in conversion of his agriculture land. The assessee is treating said land as agriculture land with no evidence provided regarding the cost of acquisition. In the absence cost of evidence and land conversion details sold residential property was fall in definition of capital assets. After examination the details/documents already available on record as well as information collected from the Sub.