SHRWAN LAL ,JAIPUR vs. ITO,WARD-7(2), JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Jh lanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: HON’BLE SHRI SANDEEP GOSAIN, JM & HON’BLE SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 403/JP/2023 fu/kZkj.k o"kZ@Assessment Year : 2010-11. cuke Shri Shrwan Lal, Income Tax Officer, Vs. C/o Prem Kumar Panpaliya Ward 7(2), (Advocate) Jaipur. Shop No. 09, 1st Floor, Chandan Plaza, Raniwara Road, Sanchore-343041, Dist. Jalore (Raj.) LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No. AUTPL 5464 A vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : None jktLo dh vksj ls@ Revenue by : Smt. Monisha Choudhary (Addl. CIT) lquokbZ dh rkjh[k@ Date of Hearing : 20/09/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 27/09/2023 vkns'k@ ORDER PER: SANDEEP GOSAIN, J.M.

This appeal by the assessee is directed against the order dated 03.05.2023 of ld. CIT (A), National Faceless Appeal Centre, Delhi passed under section 250 of the IT Act for the assessment year 2010-11. The assessee has raised the following grounds :-

1. That on the facts and in the circumstances of the case the order passed by ld. CIT (A), NFAC is bad in law and bad in facts.

2. That on the facts and in the circumstances of the case the order passed by ld. CIT (A), NFAC grossly erred in upholding the validity of notice u/s 148 of the Act.

3. That on the facts and in the circumstances of the case the order passed by ld. CIT (A), NFAC erred in upholding validity of assessment order passed by the ld. AO.

4. That on the facts and in the circumstances of the case the order passed by ld. CIT (A), NFAC grossly erred in sustaining the addition of Rs. 26,54,628/- by treating the sale of property as capital asset which is contrary to material facts.

5. That on the facts and in the circumstances of the case the order passed by ld. CIT (A), NFAC grossly erred in making allegations against the assessee which are not only contrary but also against the principle of natural justice.

6. That the petitioner may kindly be permitted to raise any additional or alternative grounds at or before the time of hearing.

7. The petitioner prays for justice & relief.

2. The brief facts of the case are that the assessee is an Individual. On the basis of information received by the AO it was gathered that assessee had sold capital asset of Rs. 10,00,000/- on 08.01.2010 through sale deed which was executed by the Sub-Registrar, Phagi and valued the above property at Rs. 27,50,000/- under section 54 of the IT Act, 1961, on which capital gain arisen was not disclosed by the assessee. It was noticed that the appellant has not filed his return of income for assessment year 2010-11 under section 139(1) of the Act. Hence, the case was reopened and notice under section 148 of the Act was issued on 20.03.2017 after recording the reasons for escapement of income after approval of the competent authority. Since the assessee has failed to comply with the notice and no return was filed, notice under section 142(1) was issued on 30.06.2017 and served upon the assessee fixing the date of hearing on 12.07.2017. On the date of hearing neither anyone attended nor any application for adjournment was filed. A show cause notice under section 142(1) was issued on 23.08.2017 fixing the case for hearing on 12.09.2017 which was duly served on the assessee and in response thereto the assessee attended and filed written submission in support of his case. Assessee was requested to make compliance of the notice under section 148 of the Act and to file the return of income. Further notices under section 142(1) were issued on various dates asking the appellant to explain his case but neither anyone attended nor any details were filed. Since the assessee failed to comply with the notices, despite ample opportunities provided to him, the assessment was completed ex-parte under section 144 of the IT Act, i.e. best judgment assessment on the basis of material available on record, making an addition of Rs. 26,54,630/- on account of undisclosed long term capital gain. Being aggrieved, the assessee preferred appeal before ld. CIT (A). Before the ld. CIT (A) also no one attended in response to notices sent and served on the assessee. Thus, the ld. CIT (Appeals) decided the appeal of the assessee ex-parte after considering the material available on record.

Now the assessee is in appeal before us.

Thereafter, show cause notices were issued on 23.08.2017 and 07.11.2017 through speed post specifically mentioning that in case of non-compliance, order under section 144 shall be passed, but neither any one attended nor any application for adjournment was filed. Accordingly, since the assessee has failed to comply with the notices, despite ample opportunities provided to him as discussed above and failed to disclose income from long term capital gain, the AO considering the submissions of the assessee and material available on record, assessed the total income of the assessee at Rs. 26,54,630/- on account of undisclosed long term capital gain.

3.1. On appeal, the ld. CIT (A) decided the appeal of the assessee by observing in para 5.1 as under :-

“ 5.1 Several notices were issued giving opportunities of being heard to the appellant, which were duly served upon the appellant through registered email. No response is received till date. The particulars of notices issued are as under :-

Sr.No. Date of Notice Date of hearing Remarks 1 20.01.2021 04.02.2021 Delivered on the registered e- mail address given by the appellant, but no submission received. 2 17.03.2021 0104.2021 Delivered on the registered e- mail address given by the appellant, but no submission received. 3 09.03.2022 24.03.2022 Delivered on the registered e- mail address given by the appellant, but no submission received. 4 17.04.2023 25.04.2023 Delivered on the registered e- mail address given by the appellant, but no submission received.

In view of the above, it appears that the non-appearance to notices is deliberate as all the notices have been duly served upon the appellant on the registered email account. No response has been received from the appellant till date. It is reasonable to infer from the continued non-compliance that the appellant is not serious to pursue its appeal.

Hon’ble Supreme Court in the case of CIT vs. B.N. Bhattacharjee and Another, 118 ITR 461 (SC) observed that preferring an appeal mans more than formally filing it but effectively prosecuting it. Hon’ble M.P. High Court in the case of Estate of Late Tukojirao Holkar vs. CWT, (1997)(223 IRE 480)(MP) dismissed the reference in default and for not taking necessary steps. Similar view has been taken by ITAT Delhi Bench in the case of CIT vs. Multiplan India (P) Ltd. (1991) 38 ITD 320. Considering the above, it appears that the appellant is not interested in pursuing its appeal. Therefore, the appeal filed by the appellant is dismissed for non-pursuasion.“

Thereafter, the ld. CIT (A) also dismissed the appeal of the assessee ex parte on the basis of material available on record.

4. Since the impugned order of the ld. CIT (A) was passed ex parte by upholding the assessment order passed under section 147 read with section 144 of the IT Act and thereby sustained the addition made by the AO in respect of capital gains calculated at Rs. 26,54,630/-, therefore, in the totality of facts and circumstances of the case and in the interest of justice, we set aside the ex-parte order of the ld. CIT (A) and remand the matter back to the file of the A.O. for fresh adjudication after providing a reasonable opportunity of being heard to the assessee. The assessee is granted one more opportunity to represent his case before the A.O. and directed to file necessary documents/evidences as required by the AO. In case the assessee fails to appear before the AO, the AO may decide the appeal on the basis of the material available on record.

Order pronounced in the open court on 27/09/2023.

Sd/- Sd/- ¼lanhi xkslkbZ½ ¼ jkBkSM+ deys'k t;arHkkbZ ½ (RATHOD KAMLESH JAYANTBHAI) (SANDEEP GOSAIN) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 27/09/2023. Das/ आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Shri Shrwan Lal, Jaipur. 2. izR;FkhZ@ The Respondent- The ITO Ward 7(2), Jaipur. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 6. xkMZ QkbZy@ Guard File {ITA No. 403/JP/2023}