ANUP KUMAR,PATNA vs. ITO, WARD 6(4), PATNA
Facts
The assessee entered into a land development agreement and during assessment, notices under section 148 and 142(1) were not properly served. The Assessing Officer passed an order under section 144 r/w 147, assessing long-term capital gain and levying taxes and interest, which the assessee appealed.
Held
The tribunal found that the principle of natural justice was not followed as the assessee did not get a proper opportunity to be heard. Therefore, the order of the CIT(Appeals) was set aside.
Key Issues
Whether the assessment order and the subsequent dismissal by CIT(Appeals) were valid without proper service of notices and opportunity for the assessee to be heard.
Sections Cited
148, 142(1), 144, 147, 234A, 234B
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, KOLKATA-PATNA ‘e-COURT’, KOLKATA
Before: Shri Duvvuru RL Reddy, Vice-(KZ) & Shri Sanjay Awasthi
Per Duvvuru RL Reddy, Vice-President (KZ):- The present appeal is directed at the instance of assessee against the order of ld. Commissioner of Income Tax (Appeals),
ITA No. 401/PAT/2024 (A.Y. 2016-2017) Anup Kumar National Faceless Appeal Centre (NFAC), Delhi dated 8th March, 2024 passed for the assessment year 2016-17.
Brief facts of the case are that the assessee is an individual, who along with other four brothers (who are co-owners independently) entered into a land development agreement with a builder namely M/s. Aastik Dream Valley Pvt. Limited for development of inherited piece of land on 01.03.2016 corresponding to A.Y. 2016-17. At the time of assessment, the ld. Assessing Officer issued notice under section 148 of the Act, which was not served upon the assessee. Notices under section 142(1) was issued but there was no evidence that the notices were served upon the assessee. The ld. Assessing Officer passed the order under section 144 read with section 147 of the Income Tax Act on 28.11.2019 assessing the long-term capital gain at Rs.51,45,000/- and deducted the tax on LTCG @ 20%, i.e. Rs.10,29,000/-, Education Cess @ 3% on Rs.10,29,000/-, i.e. Rs.30,870/- , interest u/s 234A from Aug., 2016 to November 2019 on total long- term capital gain tax, i.e. Rs.10,59,870/- [Rs.10,20,000 plus Rs.30,870/-] @ 40% i.e. Rs.4,23,948/-, and interest under section 234B for the period from 01.04.2016 to November, 2019 on total long-term capital gain tax, i.e. Rs.10,59,870/- @ 44%, i.e. Rs.4,66,343/- , which aggregated to Rs.19,50,161/- as balance tax payable by the assessee.
On being aggrieved, the assessee preferred an appeal before the ld. CIT(Appeals). The ld. CIT(Appeals) upheld the action of the
ITA No. 401/PAT/2024 (A.Y. 2016-2017) Anup Kumar ld. Assessing Officer and dismissed the appeal filed by the assessee.
On being aggrieved, the assessee preferred an appeal before the ITAT.
At the time of hearing, ld. Counsel for the assessee argued before the Bench that the impugned order be set aside and remitted back to the file of ld. CIT(Appeals) for deciding it afresh.
At the outset, ld. D.R. brought to our notice that the assessee did not produce the relevant documents as asked by the ld. Assessing Officer during the assessment proceedings. Therefore, the ld. Assessing Officer passed the assessment order assessing the long-term capital gain for tax purpose at Rs.51,45,000/- and after adding tax on LTCG, Education Cess and deducting prepaid taxes, balance tax stood payable at Rs.19,50,161/-. Thereafter the assessee preferred an appeal before the ld. CIT(Appeals). The ld. CIT(Appeals) has given several opportunities to the assessee to substantiate its claim, but the appellant neither filed the written submission nor represented the case before the ld. CIT(Appeals). Thereafter the ld. CIT(Appeals) dismissed the appeal ex-parte. Therefore, he pleaded to uphold the order passed by the ld. CIT(Appeals).
We have heard the rival contentions and perused the material available on record. Considering the facts and circumstances of the case, we are inclined to set aside the order passed by the ld.
ITA No. 401/PAT/2024 (A.Y. 2016-2017) Anup Kumar CIT(Appeals) in order to meet the principle of natural justice, and remit the matter back to the file of ld. CIT(Appeals) with a direction to provide one more opportunity of being heard to the assessee. At the same breath, we also hereby caution the assessee to promptly co-operate with the proceedings before the Ld. CIT(Appeals) failing which the Ld. CIT(Appeals) shall be at liberty to pass appropriate order in accordance with law and merits based on the materials available on the record. Thus, the grounds raised by the assessee are allowed for statistical purposes. 8. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 24/04/2025. Sd/- Sd/- (Sanjay Awasthi) (Duvvuru RL Reddy) Accountant Member Vice-President (KZ) Kolkata, the 24th day of April, 2025 Copies to :(1) Anup Kumar, Sultanpur, Danapur, Patna-801503, Bihar (2) Income Tax Officer, Ward-6(4), Patna, Lok Nayak Jai Prakash Bhawan, New Dak Bunglow, Patna-800001, Bihar (3) CIT(Appeals), NFAC, Delhi; (4) CIT- ; (5) The Departmental Representative; (6) Guard File TRUE COPY By order Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S. 4
