SAROJ KUMAR KARMAKAR,KOLKATA vs. ACIT, CIR-47, KOLKATA, KOLKATA

Sri Sanjay Kr. Sinha Chowdhury,Advocate, Ld. AR appeared on behalf of assessee and Sri Arindam Bhattacharjee, Addl.CIT, Ld. Departmental Representative appeared on behalf of Revenue.

The ld.AR of the assessee submits that the AO treated the sale consideration of agricultural land as capital asset and determined the capital gain at Rs.2,98,47,971/- and disallowed the same. The said land is a ‘sali’ land and not capital asset within the definition of section 2(14) of the Act. Out of above said demand, the assessee already paid of Rs.18,39,800/-. He also submits that the CIT-A passed ex parte order without affording

The ld.DR on the other hand, submits that the assessee did not produce any evidence showing the payment of tax to an extent of Rs.18,39,800/-. The CIT-A afforded many opportunities to the assessee to prosecute his case, but he did not avail the same. The ld.DR vehemently opposed in granting the stay of assessee and remanding the issue to the file of the CIT-A. He prayed to dismiss the Stay Application filed by the assessee.

We have heard the rival submissions and perused the material on record. We find that the assessee did not produce any evidence showing the amount which already paid in his stay application. But, however, he submits that the bank account of assessee was attached u/s. 226(3) of the Act. We further find that the issue is to be decided as to whether the land property sold by the assessee is an agricultural land or capital asset within the meaning of section 2(14) of the Act, which was not decided by the CIT-A in his order. It appears from record that the assessee was represented by S/Sh. Sandip Modak and Prasant Dutta initially. Thereafter, the assessee appointed another advocate, Sri Sumit Mondal in the first appellate proceedings before the CIT-A. As per the contentions raised in the Stay Application, we find that the Advocate representing the assessee appeared before the CIT-A from 15-05-2017 and requested for an adjournment to 05- 06-2017. But, the CIT-A passed ex parte order on 31-05-2017. Therefore, in the interest of justice and taking into consideration the submissions of assessee, we deem it fit and proper to remand the issue to the file of the CIT-A for his fresh adjudication. Therefore, the stay application filed by the assessee is dismissed and that of the appeal in filed by the assessee is allowed for statistical purpose. The assessee is also directed to appear before the CIT-A on 26-10-2017 and assessee is at S.A No. 85/Kol/17 3 & Swaraj Kumar Karmakar liberty to file any evidence to prosecute his case without taking any further adjournment.

In the result, the stay application filed by the assessee is liable to be dismissed and that of the assessee’s appeal is allowed for statistical purpose. Order pronounced in the open court on 15-09-2017