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Sh. Jugendra Singh,J-337, Sanjay Nagar,Sector-23; Ghaziabad (UP) vs. ITO, Ward 1(3)Aayakar Bhavan,Ghaziabad (UP)
April, 26th 2013
                                                               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


                                       1
                                                         ITA NO. 5407/Del/2012


                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

                                      2
                                                             ITA NO. 5407/Del/2012


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.




                                     3
                                                        ITA NO. 5407/Del/2012


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




                                     4
    ITA NO. 5407/Del/2012




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