ITA NO. 5407/Del/2012
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "D", NEW DELHI
BEFORE SHRI A.D. JAIN, JUDICIAL MEMBER
AND
SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER
I.T.A. No. 5407/Del/2012
A.Y. : 2009-10
Sh. Jugendra Singh, vs. ITO, Ward 1(3),
J-337, Sanjay Nagar, Aayakar Bhavan,
Sector-23; Ghaziabad (UP) Ghaziabad (UP)
(PAN : BGBPS5821D)
(Appellant ) (Respondent )
Assessee by : Sh. V.K. Sabharwal, Adv.
Department by : Ms. Shumana Sen, D.R.
ORDER
PER SHAMIM YAHYA: AM
This appeal by the Assessee is directed against the order of the
Ld. Commissioner of Income Tax (Appeals), Ghaziabad dated
23.8.2012 pertaining to assessment year 2009-10.
2. The grounds raised read as under:-
(1) That the case was finally adjourned on 10th August,
2012 by Ld. Commissioner of Income Tax (A) after a
hearing of the case on 3rd August, 2012. 10th August,
2012 (Friday) was a gazette holiday being Krishna
Janamathmi and all Government Offices were closed.
But Ld. Commissioner of Income Tax (A) proceeded for
exparte on 10th August, 2012 itself the day being
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holiday. As such on the facts and in the
circumstances of the case Ld. Commissioner of Income
Tax (A) erred in proceeding exparte order on 10th
August, 2012 and order is bad in law and liable to be
set aside.
(2) That during the course of assessment proceedings
appellant has submitted various details, photo of the
residential constructed supported with affidavit in
claim of investment in residential house. But the Ld.
ITO added Rs. 5,99,803/- as capital gain in the income
of the appellant without any enquiry and findings and
merely in conjectures and surmises. Addition is bad in
law and liable to be deleted.
(3) That affidavit filed by the appellant before ITO is
uncontroverted by ITO as such too addition of Rs.
5,99,803/- is bad in law and liable to be deleted.
(4) The appellant craves leave to add to, alter, to delete
from or substantiate the above ground of appeal.
3. In this case assessment order was passed u/s. 143(3) of the I.T.
Act and a sum of Rs. 5,99,803/- was added to the income of the
assessee as long term capital gain.
4. Upon assessee's appeal Ld. Commissioner of Income Tax (A)
passed an exparte order. Ld. Commissioner of Income Tax (A) noted
that no compliance was made, despite issue of several notices. Ld.
Commissioner of Income Tax (A) further noted that last opportunity
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was given by letter dated 3.8.2012 fixing the date of hearing as
10.8.2012. Since no compliance was made, Ld. Commissioner of
Income Tax (A) proceeded to pass the order exparate. On merits Ld.
Commissioner of Income Tax (A) did not go into the details, however,
he affirmed the action of the Assessing Officer.
5. Against the above order the Assessee is in appeal before us.
6. We have heard the rival contentions in light of the material
produced. Ld. Counsel of the assessee submitted that assessee has
not been given proper opportunity of being heard by the Ld.
Commissioner of Income Tax (A). He submitted that vide notice
dated 03.8.2011, the date of hearing was fixed for 10.8.2012 and the
said date was a Gazzetted Holiday being `Krishna Janamasthani'.
Hence, it was pleaded that Ld. Commissioner of Income Tax (A) erred
in proceeding on exparte order on 10.8.2012.
6.1 Ld. Departmental Representative could not refute the
submissions that the date of hearing fixed by the Ld. Commissioner of
Income Tax (A) was a Gazzetted Holiday. In our considered opinion,
interest of justice will be served, if the matter is remitted to the file of
the Ld. Commissioner of Income Tax (A). Ld. Commissioner of Income
Tax (A) shall grant the assessee proper opportunity of being heard and
thereafter pass an appropriate order accordingly.
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7. In the result, the appeal filed by the Assessee stands allowed for
statistical purposes.
Order pronounced in the open court on 23/4/2013.
Sd/- Sd/-
JAIN]
[A.D. JAIN] [SHAMIM YAHYA]
JUDICIAL MEMBER ACCOUNTANT MEMBER
Date 23/4/2013
"SRBHATNAGAR"
Copy forwarded to: -
1. Appellant 2. Respondent 3. CIT 4. CIT (A)
5. DR, ITAT
TRUE COPY
By Order,
Assistant Registrar,
ITAT, Delhi Benches
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