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Income Tax Appellate Tribunal, DELHI BENCHES (CAMP AT MEERUT
Before: SHRI N.S. SAINI & SHRI KULDIP SINGH
PER KULDIP SINGH, JUDICIAL MEMBER : The appellant, Smt. Sukhbiri Devi (hereinafter referred to as ‘the assessee’) by filing the present appeal, sought to set aside the impugned order dated 17.05.2018 passed by Ld. CIT (Appeals), Meerut qua the Assessment Year 2012-13 on the grounds inter alia that :-
“1. That the Ld. CIT(A) is in error in holding that the order passed by the A.O. is validly served upon the assessee on 27.12.2016 through Speed Post. However, in Village - Noor Nagar facility of speed post was not available and the assessee obtained the certified copy of the order on 15.03.2018 and appeal was filed on 05.04.2018. Therefore, there is no delay and CIT(A) has not justified to pass an order bleeding for condonation of delay of appeal.
That the A.O. has stated that the notice was served U/s 271(1)(c) on 15.12.2016 through notice server which was refused by the assessee. It is a matter of surprise that when the A.O. served the assessment order through speed post than how he send the notice dated 15-12-2016 through notice server.
3. That the A.O. has computed Long Term Capital Gain of Rs.16,44,000/- however, the assessee has purchased agriculture land of Rs. 15,58,910/-- in his name and agriculture land of Rs.2,37,940/- in the name of her husband and the provision of section 548 is not provided by the A.O .. CIT(A) also is in error in confirming the same.”
2. Briefly stated the facts necessary for adjudication of the controversy at hand are : Assessing Officer completed assessment under section 144/147 of the Income-tax Act, 1961 (for short ‘the Act’) by making addition of Rs.16,44,000/- on account of long term capital gain on the ground that the assessee has not come up despite service and has thus failed to explain the incurrence of sale proceeds on transfer of land for sale consideration of Rs.58,77,000/-.
Assessee carried the matter by way of an appeal before the ld. CIT (Appeals) who has dismissed the appeal in limine by not condoning the delay in filing the appeal and also by rejecting the application moved by the assessee under Rule 46A of the Income- tax Rules, 1962. Feeling aggrieved, the assessee has come up before the Tribunal by way of filing the present appeal.
We have heard the ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case.
It is the categoric case of the assessee that after sale of land by the assessee, she has purchased agricultural land vide sale deed dated 20.12.2011, 05.07.2012 and 19.03.2012 for a sale consideration of Rs.8,00,000/-, Rs.15,00,000/- and Rs.5,00,000/-, copy of sale deed placed at pages 26, 4 and 14 of the paper book respectively, and has further purchased the land on 19.09.2012 for a sale consideration of Rs.2,00,000/-, copy available at page 26 of the paper book, in the name of her husband but she has not been provided an opportunity of being heard by the AO as well as ld. CIT (A).
No doubt, AO has issued notice u/s 148 of the Act on 11.05.2015 stated to be served upon the assessee but proceeded to frame the assessment u/s 144 of the Act on the sole ground that limitation for completion of assessment expires on 31.12.2016.
When first notice issued on 11.05.2015 by the AO he was having 7 months to issue another notice to procure the presence of the assessee so as to provide adequate opportunity of being heard but he has not preferred to do so rather summarily framed the assessment u/s 144 of the Act by making addition on the long term capital gain to the tune of Rs16,44,000/-.
Even ld. CIT (A) has not provided adequate opportunity of being heard to the assessee rather dismissed the appeal in limine by dismissing the application moved by the assessee under Rule 46A of the Rules. In these circumstances, we are of the considered view that when the assessee has come up with cogent explanation that within 2 years of sale of the land by her, she has further purchased the land in her name as well as in the name of her husband, the addition is not sustainable and the assessee is required to be provided with adequate opportunity of being heard. So, in these circumstances, to meet the ends of justice, the case is set aside to the AO to decide afresh after providing an opportunity of being heard to the assessee. Consequently, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in open court on this 24th day of January, 2019.