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Income Tax Appellate Tribunal, DELHI BENCH: ‘D’ NEW DELHI
Before: SHRI G.S. PANNU & SHRI SAKTIJIT DEY
ORDER PER SAKTIJIT DEY, JUDICIAL MEMBER:
This is an appeal by the assessee against final assessment order dated 31.07.2017 passed under Section 143(3) read with 144C(13) of Income-Tax Act,1961for the assessment year 2013-14 in pursuance to directions of learned Dispute Resolution Panel (DRP).
When the appeal was called out for hearing, none appeared on behalf of the assessee. Even, there is no application seeking adjournment.
On perusal of record, it is observed, the appeal came up for hearing for the first time on 10.12.2020. Thereafter, the appeal was fixed for hearing on eleven more dates. However, on none of these dates, the assessee did appear despite repeated issuance of hearing notices through postal authorities. From the speed post tracking report kept on record, it is observed that the hearing notice issued on 19.10.2022 through speed post was served on the assessee on 22.10.2022 on the given address. Thus, it is observed, assessee had sufficient notice of dates fixed for hearing of the appeal. That being the fact emerging on record, we are disinclined to grant any further opportunity to the assessee, as the assessee has remained callous and negligent in prosecuting the appeal. Therefore, we proceed to dispose of the appeal ex parte qua the assessee after hearing the learned
Departmental Representative and based on material available on record.
We have heard learned Departmental Representative and perused the material on record.
Ground no.1 relates to applicable rate of tax on long term capital gain arising on sale of listed shares. As could be seen from the material on record, assessee offered to tax the long term capital gain on sale of shares by applying the rate of 10%, taking shelter under the second proviso to section 112(1) of the Act. It is further observed, to support its case, assessee had relied upon the decision of Hon'ble Delhi High Court in case of Karve Holdings Ltd. vs. DIT(Exemption)
(2013) 315/268 (Del). The only reason for which learned DRP upheld the decision of the Assessing Officer in applying the tax rate of 20% is, the Revenue has filed an appeal before the Hon'ble Supreme Court against the aforesaid decision of the Hon'ble Delhi High Court. Hence, the matter has to be kept alive. In our view, this cannot be a reason to uphold the decision of the Assessing Officer to apply tax rate of 20%.
So long as the decision of the Hon'ble High Court has neither been stayed or reversed by the Hon'ble Supreme Court, it will be binding.
However, considering the fact that the issue is pending in the Hon'ble Supreme Court, we are inclined to restore the issue to the Assessing Officer for deciding afresh abiding with the decision of the Hon'ble Supreme Court. Ground is allowed for statistical purposes.
In ground no.2, the assessee has challenged a levy of sur-charge at 5% instead of 2%.
Having heard learned Departmental Representative and perused the material on record, we direct the Assessing Officer to examine assessee’s claim and levy sur-charge in accordance with statutory provisions. This ground is allowed for statistical purposes.
Ground nos. 3 and 4 on levy of interest under Section 234 and 234B being consequential in nature, do not require adjudication.
In the result, the appeal is allowed for statistical purposes.
Order pronounced in the open court on 11th April, 2023.