Sh. Gokul Tandan, New Delhi v. ITO, New Delhi

ITA 97/DEL/2011 | 2006-2007
Pronouncement Date: 15-03-2011 | Result: Allowed

Appeal Details

RSA Number 9720114 RSA 2011
Assessee PAN AACPT0696H
Bench Delhi
Appeal Number ITA 97/DEL/2011
Duration Of Justice 2 month(s) 7 day(s)
Appellant Sh. Gokul Tandan, New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 15-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 15-03-2011
Assessment Year 2006-2007
Appeal Filed On 07-01-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : C : NEW DELHI BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER ITA NO.97/DEL/2011 ASSESSMENT YEAR : 2006-07 SHRI GOKUL TANDAN S-101 PANCHSHEEL PARK NEW DELHI.- 110 017. PAN : AACPT0696H VS. ITO WARD 17(3) NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI LOKENDRAJIT POONAM ADVOCATE REVENUE BY : SMT. MONA MOHANTY SR. DR ORDER PER I.P. BANSAL JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT (A) DATED 11 TH OCTOBER 2010 FOR ASSESSMENT YEAR 2006-07. THE GROUNDS OF APPEAL READ AS UNDER:- 1 (A) THAT THE LEARNED CIT (A) HAS ERRED IN LAW AND ON FACTS IN DISPOSING OF THE APPEAL EX PARTE ON THE GROUND OF N ON- APPEARANCE INASMUCH AS NEITHER THE NOTICE DATED 30.08.2010 FIXING THE DATE OF HEARING FOR 13.09.2010 NOR THE NOTICE DATED 16.09.2010 FOR HEARING ON 06.10.2010 WAS SERVED ON THE APPELLATE. (B) THAT NON-APPEARANCE OF THE APPELLANT ON THE DATES FIXED BEING FOR A SUFFICIENT CAUSE NAMELY NON-SERVI CE OF NOTICE THE IMPUGNED ORDER PASSED ON THE ASSUMPTION THAT NOTICES ISSUED TO THE APPELLANT ASSESSEE HAD BEEN DULY SERVED IS LIABLE TO BE SET-ASIDE. 2 (A) THAT THE AUTHORIT IES BELOW HAVE FAILED TO APPRECIATE THAT FAIR MARKET VALUE OF THE PROPERTY AS ON 01.04.1981 HAVING BEEN ADOPTED AS THE COST OF ACQUISITION OF THE ITA NO.97/DEL/2011 2 HAVING BEEN ADOPTED AS THE COST OF ACQUISITION OF THE PROPERTY INDEXED COST OF ACQUISITION FOR THE PURPOSE O F CALCULATING LONG-TERM CAPITAL GAIN HAS TO BE COMPUTED BY ADOPTING COST INFLATION INDEX FOR THE FINANCIAL YEAR 19 81-82 AND THE IMPUGNED ADDITION UNDER THE HEAD LONG-TERM CAPITAL GAIN ON THE BASIS OF COST INFLATION INDEX FOR TH E FINANCIAL YEAR 2003-04 IS ILLEGAL UNSUSTAINABLE AND LIABLE TO BE DELETED. (B) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE RE WAS NO JUSTIFICATION WITH THE AUTHORITIES BELOW IN EXCLUD ING THE HOLDING PERIOD OF THE PREVIOUS OWNER ON THE GROUND THAT THE APPELLANT CAME TO HOLD THE PROPERTY UNDER THE WILL OF HIS FATHER FOR THE FIRST TIME IN THE FINANCIAL YEAR 2 003-04 THEREBY ADOPTING THE COST INFLATION INDEX FOR THE FINANCI AL YEAR 2003-04 FOR DETERMINING THE INDEXED COST OF ACQUISITION OF THE PROPERTY AND SUCH AN APPROACH IS CONTRARY TO THE PROVISIONS OF SS.2(42A) EXP. 1(B) 48 49 AND 55 OF THE IT ACT AND AGAINST THE DECISION OF SPECIA L BENCH ITAT REPORTED AS DCIT VS. MANJULA J. SHAH (200 9) 318 ITR (AT) 417 (SB) (MUM) AND DECISIONS RENDERED IN ( 2008) 117 TTJ 121 (CAL) AND (2002) 81 ITD 1 (CHANDIGARH). 3. THAT THERE WAS NO JUSTIFICATION WITH THE LEARNED CIT (A) IN SUSTAINING THE REJECTION OF CLAIM OF SETTING OFF OF S HORT TERM LOSS OF RS.2 43 570/- AGAINST THE LONG TERM GAINS ON WHOLLY ERRONEOUS GROUNDS AND THE IMPUGNED DISALLOWAN CE BEING CONTRARY TO THE PROVISIONS OF S.70(2) OF THE IT A CT AND DECISION OF THE ITAT REPORTED AS (2006)100 ITD 271 (M UM) (SB) AND CBDTS CIRCULAR NO.8 DATED 27.08.2002 IS UNSUSTAINABLE AND LIABLE TO BE SET-ASIDE. 4. THAT IN VIEW OF THE FACT THAT EXPLANATION TENDERED AS REGARDS THE WITHDRAWAL AND DEPOSITS OF RS.1 50 000/- W AS NOT FOUND FALSE AND IN THE ABSENCE OF ANY MATERIAL ON RECORD TO DISPROVE THE CLAIM THERE WAS NO JUSTIFICATION WITH THE LEARNED CIT (A) IN SUSTAINING THE ADDITION OF RS.1 50 000/- MADE ON MERE SURMISES AND CONJECTURE A ND THE IMPUGNED ADDITION OF RS.1 50 000/- DESERVES TO BE DELETED. 5. THAT THE AUTHORITIES BELOW HAVE FAILED TO APPRECIATE THAT OUT OF FOUR HEADS OF EXPENSES CLAIMED AGAINST THE CONSULTANCY INCOME THREE HEADS OF EXPENSES NAMELY SALARY & ALLOWANCES CONVEYANCE AND BOOKS & PERIODI CALS ARE NOT COVERED BY THE TERMS OF CLAUSE 4 (C) OF THE AGREEMENT AND DISALLOWANCE OF THE ENTIRE EXPENDITURE WITHOUT ANY VERIFICATION WAS NOT JUSTIFIED. 6. THAT THE ORDER OF THE CIT (A) IS BAD IN LAW AND AGA INST THE FACTS OF THE CASE. ITA NO.97/DEL/2011 3 THE FACTS OF THE CASE. 2. AS IT CAN BE SEEN FROM THE GROUNDS OF APPEAL IT IS THE MAIN GRIEVANCE OF THE ASSESSEE THAT LEARNED CIT (A) HAS ERRE D IN DISPOSING OF THE APPEAL EX PARTE QUA THE ASSESSEE. THE ORDER OF LEARNED CIT (A) HAS BEEN ASSAILED ON THE GROUND THAT NO NOTICE WAS SERVE D EITHER ON THE ASSESSEE OR ON HIS REPRESENTATIVE AUTHORIZED TO RECEI VE THE NOTICE. AS THE FACT OF NON-SERVICE OF NOTICE HAS ALSO BEEN CONF IRMED IN AN AFFIDAVIT WHICH IS PLACED AT PAGE 11 AND 12 OF THE P APER BOOK THE CONTENTS OF WHICH ARE AS UNDER:- AFFIDAVIT I GOKUL TANDAN S/O LATE SH. N.C. TANDAN R/O S-101 PANCHSHEEL PARK NEW DELHI 110 017 DO HEREBY SOLE MNLY AFFIRM AND DECLARE AS UNDER:- 1. THAT I AM ASSESSED TO INCOME-TAX UNDER PAN NO.AACPT0696H AND VIDE ORDER DATED 23.12.2008 PASSED U/S 143 (3) OF THE IT ACT ASSESSMENT FOR THE ASSESSMENT YEA R 2006-07 WAS FRAMED BY THE ASSESSEE ASSESSING OFFICER AT AN INCOME OF RS.26 26 740/- AS AGAINST THE RETURNED INCOM E OF RS.8 94 314/- ON ACCOUNT OF CERTAIN ADDITIONS AND DISA LLOWANCES MADE TO THE RETURNED INCOME. 2. THAT AGGRIEVED BY THE ADDITIONS AND DISALLOWANCES M ADE I HAD PREFERRED AN APPEAL BEFORE THE CIT (A)-XIX NEW DELHI AND THE APPEAL WAS REGISTERED AS APPEAL NO.196/08-09. 3. THAT THE CIT (A) HAD DISPOSED OF THE SAID APPEAL EX PARTE ON GROUND OF NON-APPEARANCE BY THE APPELLANT ON 17.7. 2009 WHICH WAS THE ADJOURNED DATE AND ON THE SUBSEQUENT DATES OF HEARING I.E. 13.9.2010 AND 6.10.2010 FIXED BY NOTIC ES DATED 30.8.2010 AND 16.9.2010 RESPECTIVELY. 4. THAT NOTICE DATED 30.08.2010 POSTING THE CASE FOR HEA RING ON 13.09.2010 AND NOTICE DATED 06.09.2010 FOR HEARING ON 06.10.2010 WHICH ARE ALLEGED TO HAVE BEEN ISSUED BY THE OFFICE OF CIT (A)-XIX NEW DELHI WERE NOT SERVED ON NOR RECEIVED EITHER BY ME OR BY ANY PERSON AUTHORIZED IN THAT BEHALF. NON-APPEARANCE ON THE DATES FIXED WAS THEREF ORE DUE TO NON-SERVICE OF NOTICES. (DEPONENT) ITA NO.97/DEL/2011 4 VERIFICATION VERIFIED AT NEW DELHI ON THIS 7 TH DAY OF MARCH 2011 THAT THE CONTENTS OF MY ABOVE AFFIDAVIT ARE TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF AND NO PART OF IT IS FALS E AND NOTHING MATERIAL HAS BEEN CONCEALED THEREFORM. DEPONENT 3. REFERRING TO THE CONTENTS OF THE AFFIDAVIT IT WA S THE REQUEST OF THE LEARNED AR THAT THE ASSESSEE WAS PREVENTED BY REASONA BLE CAUSE FOR NON-APPEARANCE BEFORE THE CIT (A) AND THEREFOR E THE ASSESSEE IN THE INTEREST OF JUSTICE MAY BE GRANTED ONE MORE OPPO RTUNITY TO REPRESENT HIS CASE BEFORE LEARNED CIT (A). 4. ON THE OTHER HAND LEARNED DR PLEADED THAT LEARN ED CIT (A) HAS GRANTED ENOUGH OPPORTUNITIES TO THE ASSESSEE AND THE ASSES SEE DID NOT REPRESENT AND THEREFORE HE HAS RIGHTLY PASSED EX PART E ORDER AGAINST THE ASSESSEE AND HIS ORDER SHOULD BE UPHELD. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. KEEPING IN VIEW THE CONTENTS OF THE AFFIDAVIT FILED BY THE ASSESSEE WE CONSIDER IT JUST AND PROPER THAT INTEREST OF JUSTICE WILL BE SERVED IF THE MATTER IS REST ORED BACK TO THE FILE OF CIT (A) FOR RE-ADJUDICATION AFTER GIVING TH E ASSESSEE A REASONABLE OPPORTUNITY OF HEARING AS NO NOTICE HAS BEEN STATED TO BE SERVED UPON THE ASSESSEE. SINCE WE ARE RESTORING THE ENTIRE APPEAL TO THE FILE OF LEARNED CIT (A) WE DO NOT EXPRESS ANY OPINION ON MER ITS WHICH WILL BE RE-ADJUDICATED BY LEARNED CIT (A) IN THE MANNER AFO RESAID AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING. WE DI RECT ACCORDINGLY. ITA NO.97/DEL/2011 5 6. IN THE RESULT FOR STATISTICAL PURPOSES THE APPEAL F ILED BY THE ASSESSEE IS TREATED TO BE ALLOWED IN THE MANNER AFORESAID . THE ORDER PRONOUNCED IN THE OPEN COURT ON 15.03.20 11. SD/- SD/- [A.K. GARODIA] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 15.03.2011. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT DELHI BENCHES