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Order PER PARESH M. JOSHI, J.M. : This is an appeal filed by the Assessee who is aggrieved by the Order No. ITBA/NFAC/s/250/2023-24/1057067488(1) dt. 16/10/2023 passed by the Ld. CIT(A) under section 250 of Income Tax Act, 1961 in the first appellate proceedings held before him. This appeal is second appeal under the Income Tax Act, 1961 in terms of Section 253 of the Act. The aforesaid order of the Ld. CIT(A) is hereinafter referred to as the “impugned order”.
FACTUAL MATRIX 2. Brief facts of the case are that the AO was in possession of an information that the assessee had sold immovable properties amounting to Rs. 2,46,35,000/- during the F.Y 2011-12 relevant to A.Y. 2012-13. Proceedings u/s 147 of the Act were initiated by the AO by issue of a notice u/s 148 of the Act on 30.03.2019 after recording the reasons for reopening with the prior approval of the Pr. Commissioner of Income Tax, Karnal. In response to this, the assessee neither filed his return of Income for the A.Y 2012-13 nor did he file any written submissions. From a perusal of the sale deed, it was seen by the AO that the assessee had sold immovable property alongwith others amounting to Rs. 2,46,35,000/- during the A.Y. 2012-13 & his share in sale of immovable property was worked out at Rs. 33,25,725/-. Accordingly, a notice u/s 142(1) was issued by the AO to the assessee on 02.08.2019 which was served upon assessee on 10.08.2019 but no response was received from the assessee. Thereafter, the AO issued show cause notice u/s 144 of the Act to the assessee on 20.11.2019. There was no response by the assessee to any of the notices/SCN. In spite of various opportunities provided by the AO to the assessee, the assessee had neither filed his return of income for the A.Y. 2012- 13 nor filed any reply/explanation regarding details of capital gains earned on sale of property amounting to Rs. 33,25,725/-. Therefore, the AO had no other alternative but to complete the assessment proceedings as per material/information available on record and pass an order ex-parte order u/s. 144 of the Act. Therefore, the AO finalized the assessment u/s. 144 r.w.s 147 of the Act vide an order dated:09.12.2019 for A.Y.2012-13 at the assessed income of Rs.33,25,725/- being the sale consideration received by the assessee, there being no evidence regarding the cost of acquisition.
Being aggrieved by the order of the Ld. AO (supra) dt. 09/12/2019 the assessee preferred first appeal under the Income Tax Act, 1961 before the Ld. CIT(A) who by impugned order has sustained the order of Ld. AO dt. 09/12/2019.
In Form No. 36 which is a Form of appeal to this Tribunal the assessee has raised following grounds of appeal against the impugned order which are as under:
1. That on the facts and circumstances of the case, and on the principal of natural justice, an opportunity of being heard be given to the appellant.
2. The authorities below have grossly erred in law in taxing the whole sales consideration as the long term capital gains.
3. The appellant craves permission to add, delete or modify any or all grounds of the appeal.
RECORD OF HEARING
The hearing took place on 08/07/2024 before this Tribunal when both the parties were heard. The Ld. AR contended that impugned order is in violation of the principles of natural justice as no opportunity was given by the Ld. CIT(A) and matter was proceeded exparte. Therefore the impugned order is bad in law, illegal and ought to be set aside and matter be remanded back to the file of Ld. CIT(A) as and by way of remand on denovo basis. Per contra the Ld. DR conceded this fact that the order of Ld. CIT(A) is indeed in violation of the principles of natural justice. The Ld. DR however insisted for more and better particulars be furnished to the Tribunal as to why the Ld. CIT(A) proceeded exparte. In rejoinder Ld. AR stated that assessee is agriculturist and remains busy with his agricultural activities particularly during harvesting. Due to this he could not appear even before Ld. AO in the original proceedings. The assessee being agriculturist has several handicaps of modern world which is dominated by Technology while it is true that he ought to have remained vigilant but ends of justice requires that at least one more opportunity be given to him to appear and participate in the first appellate proceedings before CIT(A) as and by way of last opportunity. The Ld. DR conceded to this fact finally and was kind enough to state that a liberal view may be taken by Tribunal in such a manner as this Tribunal deems fit and proper. The Ld. DR also expressed Department anguish that assesee’s in different attitudes towards Department is clogging the system and causing lot of unnecessary burden on the Department.
FINDINGS AND CONCLUSIONS
After hearing both the sides and after minutely perusing both the orders of the lower authority we notice that assessee has remained absent through out at both the places and have not participated either in the original proceedings or in the first appellate proceedings. Under these circumstances both the lower authorities were left with no other alternative but to proceed exparte against the assessee. However keeping in mind the submission of Ld AR that last and final opportunity be given to assessee and that assessee now undertakes to appear before CIT(A), we set aside the impugned order and remand the case back to the file of the Ld. CIT(A) with a direction to assessee to appear before the Ld. CIT(A) as last chance and produce before him / her all relevant papers and explanation for just and fair decision.
Order 7. In the foregoing the impugned order is set aside as and by way of remand on denovo basis. Appeal of assessee is allowed as and by way of remand. 8. In the result, appeal of the assessee is allowed for statistical purposes.