SUJAN SINGH AJWANI,MUMBAI vs. ITO 19(1)(2), MUMBAI

Briefly stated the facts are, in case of Shri Sujan Singh Ajwani, return of income was filed on 31st July 2007, declaring total income of ` 8,21,791 and assessment was completed under section 143(3) of the Income Tax Act, 1961 (for short "the Act") on 8th December 2009, by accepting the income declared. Similarly, in case of Smt. Sujani Sujan Ajwani, return of income was filed on 31st July 2007, declaring total income of ` 6,39,081 and assessment was completed under section 143(3) on 8th December 2009, accepting the income declared. Subsequently, the learned Commissioner, in exercise of power conferred under section 263 of the Act, called for the assessment records of both the assessees and after verifying the same was of the view that assessment orders passed by the Assessing Officer in case of both the assessees are erroneous and prejudicial to the interests of Revenue as the Assessing Officer while allowing assessee’s claim of 3 Shri Sujan Singh Ajwani Smt. Sujani Sujan Ajwani exemption under section 54 of the Act, has neither made any enquiry nor called for information in respect of the cost / value of loan. Therefore, holding that the exemption allowed under section 54 of the Act, is erroneous and prejudicial to the interests of Revenue, the learned Commissioner set aside both the assessment orders and directed the Assessing Officer to examine the issue and decide the same after due opportunity of being heard to the assessee. Pursuant to the direction of the learned Commissioner as aforesaid, the Assessing Officer framed assessment under section 143(3) r/w 263 of the Act by re–working the long term capital gain after reduction of exemption claimed under section 54 as well as value of the property as on 1st April 1981. Being aggrieved of the assessment orders so passed, both the assessees preferred appeals before the learned Commissioner (Appeals).

As it appears, learned Commissioner (Appeals) disposed off appeals filed by the assessees ex–parte by confirming the orders passed.

The only pleading of the learned Authorised Representative before us is, learned Commissioner (Appeals) having decided the appeal ex–parte without affording reasonable opportunity of being

Learned Departmental Representative has no objection if the matter is restored back to the file of the learned Commissioner (Appeals).

We have considered the submissions of the parties. After perusing the facts and looking at the nature of assessee’s grievance, we are of the considered opinion, without entering into the controversy whether the learned Commissioner (Appeals) has ante–dated the order or not, as the present appeals were decided ex–parte in the interest of fair play and justice, impugned orders of learned Commissioner (Appeals) deserves to be set aside for enabling the assessee to represent their case properly and effectively. Accordingly, we set aside the impugned orders of the learned Commissioner (Appeals) in case of 5 Shri Sujan Singh Ajwani Smt. Sujani Sujan Ajwani both the assessees and restore the matter to the file of the learned Commissioner (Appeals) for denovo adjudication of all the issues raised by the assessee. Further, we also direct the assessees concerned to co–operate in finalization of proceeding by appearing before the learned Commissioner (Appeals) for representing their case.

In the result, appeals are allowed for statistical purposes. Order pronounced in the open Court on 16.03.2016