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Facts
The assessee's appeal for AY 2012-13 is against the Addl. CIT(A)'s order confirming an addition of Rs. 24,58,333/- as long-term capital gain. The AO had made this addition ex-parte because the assessee failed to furnish proper replies and explanations.
Held
The Tribunal held that while the assessee was lethargic in pursuing the appeal and providing documents, it is important to decide the matter on merits. Therefore, the case is restored to the AO to provide one more opportunity for hearing.
Key Issues
Whether the addition of Rs. 24,58,333/- as long-term capital gain was legally correct, and whether the assessee was denied a proper opportunity to present their case.
Sections Cited
Section 54, Section 54F
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Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 1026/JPR/2024
fu/kZkj.k o"kZ@Assessment Year : 2012-13 Shri Sarvesh Khemka cuke ITO, Vs. 44, Paradise Anand Ward 6(5) Jaipur. Kanak Vrindavan, Near Maharshi Arvind College, Sirsi Road, Jaipur LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: AIAPK 1020 A vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksjls@Assesseeby : Shri Manish Tatiwala, A/R jktLo dh vksjls@Revenue by: Shri Gautam Singh Choudhary Addl.CIT lquokbZ dh rkjh[k@Date of Hearing : 09/10/2024 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 02 /12/2024 vkns'k@ORDER PER: DR. S. SEETHALAKSHMI, J.M.
This appeal filed by the assessee is directed against order of the Addl. ld. CIT(A)-4, Thiruvantipuram dated 06-06-2024 for the assessment year 2012-13 wherein the assessee has raised the following ground of appeal.
‘’1.That the ld. CIT(A) has erred in law and in facts in treating the assessment legally correct. 2. That the ld.CIT(A) has erred in law as well as in facts in sustaining addition made for Rs.24,58,333/- as long term capital gain without any reason or basis.
SHRI SARVESH KHEMKA VS ITO, WARD 6(5), JAIPUR 2.1 Brief facts of the case are that the AO vide his order dated 4-11-2019 for the assessment year 2012-13 made an addition in the hands of the assessee amounting to Rs.24,58,333/- as Long Term Capital Gain wherein he found that the assessee had failed to furnish proper reply in spite of providing so many opportunities and thus the AO passed an ex-part order. 2.2 Aggrieved by the order of the AO, the assessee carried the matter before the ld. Addl. CIT(A) who dismissed the appeal of the assessee by observing as under:- ‘’The appeal was filed by the appellant on 12-11-2019 for the AY 2012-13 against the order of AO passed u/s 143(3) r.w.s. 147 on14-11-2019 and served on 6-11-2019. In this case, addition of Rs.24,58,333/- (long term capital gains) was made for not depositing the capital gains in the capital gain account scheme before the due date for filing the return of income as required as per the provisions of Section 54/54F. A new residential house property was purchased by him on 17-07-2013 after the due date for filing the return of income. Notice dated 22-04-2024 was issued to the appellant to explain the discrepancy. Appellant asked for the adjournment for a fortnight days which was granted but there is no response from the appellant till date. Therefore, it is presumed that appellant does not have anything to explain in the matter. Therefore, the addition made on account of long term capital gains of Rs.24,58,333/- is confirmed.
SHRI SARVESH KHEMKA VS ITO, WARD 6(5), JAIPUR It is pertinent to mention that the ld.Addl. CIT(A) has passed an ex-parte order in the case of the assessee (supra) for the reason that there was no response from the side of the assessee on the date of hearing of the appeal.
2.3 During the course of hearing, the ld.AR of the assessee has filed the following documents to counter the orders of the lower authorities. S.N. Details of documents Page No.
Notice u/s 148 dated 31-03-2019 1 2. ITR Return form 2 to 8 3. Statement of Long Term Capital 9 Gains 4. Purchase Registry 10 to 38 5. Sale Deed 39 to 48 6. Valuation Report 49 to 54 7. Receipts 55 to 62 It is submitted by the ld. AR of the assessee during the course of hearing that the above mentioned documents were made available before the AO at the time of assessment. 2.4 On the other hand, the ld. DR supported the order of the ld. CIT(A) and the AO. 2.5 We have heard both the parties and perused the materials available on record. In this case, it is noticed that the ld.CIT(A) sustained the addition made by the AO amounting to Rs.24,58,333/- as long term capitals for the reason that the assessee had not supplied the informations before him at the SHRI SARVESH KHEMKA VS ITO, WARD 6(5), JAIPUR time of first appeal. This indicates that the assessee was lethargic in pursuing his appeal and not supplying the documents to counter the order of the AO. However, the Bench has taken into consideration the Paper Book submitted by the ld.AR of the assessee and feels that one more chance should be given to assessee to contest the case before the AO. The Bench noticed that it is an admitted fact that the assessee is ex-parte before the AO and also before the ld. CIT(A). Therefore, he could not put forth his proper defence. It was the bounded duty of the assessee to appear before the statutory authorities as and when called for. It is noticed that various opportunities were provided to the assessee for settling the issue but the assessee remained lethargic and unserious in pursuing his case. However, the Bench is of the view that lis between the parties has to be decided on merits so that nobody’s rights could be scuttled down without providing opportunity of being heard to the assessee. Hence, the matter is restored to the file of the AO to decide it afresh by providing one more opportunity of hearing, however, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings. Thus the appeal of the assessee is allowed for statistical purposes. 2.6 Before parting, we may make it clear that our decision to restore the matter back to the file of the AO shall in no way be construed as having any reflection or SHRI SARVESH KHEMKA VS ITO, WARD 6(5), JAIPUR expression on the merits of the dispute, which shall be adjudicated by AO independently in accordance with law. 3.0 In the result, the appeal of the assesee is allowed for statistical purposes Order pronounced in the open court on 02 /12/2024.