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Income Tax Appellate Tribunal, DELHI BENCH ‘A-SMC’ : NEW DELHI
Before: SHRI N.K. BILLAIYA & SHRI KULDIP SINGH
PER KULDIP SINGH, JUDICIAL MEMBER : Since common questions of facts, law and identical grounds have been raised in the aforesaid appeals, the same are being disposed off by way of consolidated order to avoid repetition of discussion.
The appellants, Smt. Anju Garg and Shri Anil Garg (hereinafter referred to as ‘the assessees’) by filing the present appeals, sought to set aside the impugned orders dated 29.01.2018 & 02.01.2018 respectively passed by Ld. CIT (Appeals), Ghaziabad qua the assessment year 2014- 15 on the identical grounds, except the difference in amount, inter alia that :-
“1. On the facts and in the circumstances of the case and in law, the CIT(A) erred in passing the impugned order without providing any proper opportunity of hearing to the Assessee.
2. On the facts and in the circumstances of the case and in law, the authorities below have erred in treating the Assessee's claim for long term capital gain u/s.115-BBE as a cash credit, without any material or basis for looking askance at the said transaction or the company involved.
3. On the facts and in the circumstances of the case and in law, the authorities below have erred in passing completely non-speaking and mechanical orders without even adverting to the evidence as led or the merits of the specific transactions, and simply copy-pasting vague and irrelevant reports.
On the facts and in the circumstances of the case and in law, the authorities below have erred in holding the Assessee's claim of long term capital gain to be bogus, despite the fact that the company in question has not been held to be non-operational or defunct by any competent authority, nor has its scrip been flagged by SEBI.
5. On the facts and in the circumstances of the case and in law, the CIT(A) erred in referring to purchase price of shares of M/s.CCL International Ltd. allegedly made by the Assessee, while the Assessee had in fact purchased shares of M/s.AAR Infrastructure (P) Ltd.
6. On the facts and in the circumstances of the case and in law, the CIT(A) erred in confirming the disallowance in a sum of Rs.5, 12,845/- of the Assessee's claim U/S 115-BBE of the Act.”
Briefly stated the facts necessary for adjudication of the controversy at hand in both the aforesaid appeals are : The assessees are salaried employees who have shown income from salary, house property, from capital gain and from other sources without maintaining books of account. Declining the contentions raised by the assessee, AO proceeded to conclude that the assessees have failed to prove the genuineness of the alleged long term capital gain claimed to have been earned during the year under assessment on sale of shares of M/s. CCL International Ltd. u/s 10(38) of the Income-tax Act, 1961 (for short ‘the Act’) and thereby made an addition of Rs.5,12,945 and Rs.5,12,862/- and assessed the income at Rs.10,76,670/- and Rs.14,90,120/- in case of Anju Garg and Anil Garg respectively.
4. Assessees carried the matter by way of appeals before the ld. CIT (A) who has dismissed the appeals. Feeling aggrieved, the assessees have come up before the Tribunal by way of filing the present appeals.
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.
At the very outset, it is brought to our notice by the ld. ARs for the parties to the present appeals that these cases have been dismissed in limine by the ld. CIT (A) without providing adequate opportunity of being heard. Perusal of para 4.1 of the impugned order shows that assessees by putting in appearance moved adjournment application for 27.09.2017 and 12.10.2017 which was allowed and thereafter case was decided ex-parte on 29.01.2018 without bringing on record if the assessees have further moved any application for adjournment or they have been provided further opportunity by giving notice. When the assessees have filed two adjournment applications and abruptly disappeared on the third date, it is the duty of the quasi-judicial authority to further issue the notice to provide adequate opportunity of being heard to the assessees and to decide the issue in controversy once for all. In these circumstances, we are of the considered view that both the appeals are required to be remanded back to ld. CIT (A) to be decided afresh after providing an opportunity of being heard to the assessees. Consequently, both the appeals filed by the assessees are allowed for statistical purposes. Order pronounced in open court on this 31st day of August, 2018.