SRI.M N SHESHAGIRI,MYSORE vs. INCOME TAX OFFICER WARD-2(3), MYSORE

O R D E R

Per Shri A.K. Garodia, Accountant Member

by the assessee are as under. “1. The order of the learned Commissioner of Income-tax [Appeals] passed under Section 251(1) of the Act in so far as it is against the Appellant is opposed to law,weight of evidence, probabilities, facts and circumstances of the Appellant's case.

2. The appellant denies himself liable to be assessed to total income of Rs.38,22,410/ - as against the returned income of Rs. 3,64,610/- on the facts and circumstances of the case.

3. Grounds on addition of Rs.34,24,681/- a. The learned Commissioner of Income-tax [Appeals] was not justified in confirming the addition made by the learned assessing officer of Rs. 34,24,682/- by disallowing the deduction claimed by the Appellant under Section 54 of the Act on the facts and circumstances of the case. b. The learned CIT(A) was not justified in law, in not appreciating that the over sight in not making a deposit into the capital gains scheme was a technical default as long as the final objective of acquisition of the house property, on the facts and circumstances of the case. c. The learned CIT(A) ought to have appreciated that the exemption provision under section 54 of the Act is a beneficial provision and therefore to be liberally construed. d. Without prejudice, the assessee was entitled to file a return U/s139(5) of the Act, on receiving a notice U/s142(1) of the Act from the AO, before the expiry of one year from close of the assessment year or before the completion of the assessment proceedings whichever was earlier, hence the AO ought to have considered the payments made up to the date available for filing of revised return i.e. 31-03-2014 amounting to Rs. 54,13,000/- for the purposes of calculating the investment in the new house property against Rs.22,06,000/- assumed by the AO in the order enclosed.

6. The Appellant craves leave to add, alter, substitute and delete any or all the grounds of appeal

urged above.

7. For the above and other grounds to be urged during the hearing of the appeal the Appellant prays that the appeal be allowed in the interest of equity and justice.”

3. At the very outset, it was pointed out by the ld. AR of assessee that impugned order passed by ld. CIT(A) is ex-parte qua the assessee. He further pointed out that it is noted by CIT(A) in Para 3 of his order that first date of hearing was fixed on 19.09.2017 which was not attended but letter seeking adjournment of the hearing was received from AR of assessee and hearing was adjourned to 30.10.2017 after placing the assessee on notice. He submitted that therefore, on this date of hearing i.e. on 19.09.2017, adjournment application was made by the assessee and only on the next date i.e. 30.10.2017, the assessee could not appear before CIT(A) and no application was filed for adjournment also but without providing any further opportunity to assessee in the interest of justice, the impugned order was passed by CIT(A) on 31.10.2017.

4. Considering these facts, I feel it proper that in the interest of justice, the matter may go back to the file of CIT (A) for fresh decision after providing adequate opportunity of being heard to assessee. Hence I set aside the order of CIT (A) and restore the matter back to his file for fresh decision after providing adequate opportunity of being heard to both sides.

5. In view of this decision, no adjudication is called for regarding the merit of the case at the present stage. Hence I do not make any comment on the merit of the case.

Order pronounced in the open court on the date mentioned on the caption page.