Income Tax Appellate Tribunal - Jaipur
Shri Bhawani Kumar Shah C/O- O.P. ... vs Ito Ward-7(1), Jaipur, Ward-7(1), ... on 24 July, 2019
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IN THE INCOME TAX APPELLATE TRIBUNAL,
JAIPUR BENCH 'SMC', JAIPUR
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Before : Shri Vijay Pal Rao, Judicial Member
vk;dj vihy la-@ITA No.737/JP/2019
fu/kZkj.k o"kZ@Assessment Year : 2015-16
Shri Bhawani Kumar Shah cuke The ITO
7, Rathore Nagar, Vaishali Nagar,Jaipur Vs. Ward- 7(1),Jaipur
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ACQPS 0534 B
vihykFkhZ@Appellant izR;FkhZ@Respondent
fu/kZkfjrh dh vksj ls @Assessee by :Shri Manish Agarwal, CA
jktLo dh vksj ls@ Revenue by : Shri Raj Mehra, JCIT-DR
lquokbZ dh rkjh[k@ Date of Hearing : 23/07/2019
?kks"k.kk dh rkjh[k@ Date of Pronouncement : 24 /07/2019
vkns'k@ ORDER
PER VIJAY PAL RAO, JM
This appeal by the assessee is directed against the order dated 25-03-2019 of ld. CIT(A)-3, Jaipur for the Assessment Year 2015-16. The assessee has raised the following grounds:-
''1. On the facts and in the circumstances of the case and in law the ld. CIT(A) has grossly erred in deciding the appeal ex-parte without affording adequate opportunity to the assessee. Appellant 2 ITA No. 737/JP/2019 Shri Bhawani Kumar Shah vs ITO, Ward-7(1), Jaipur prays order so passed is against the principles of natural justice and deserves to be quashed.
2. On the facts and in the circumstances of the matter, the ld. CIT(A) has erred in confirming the action of AO in holding the long term capital gain of Rs. 5,40,413/- arising to assessee on sale of shares of M/s. Parag Shilpa Investments Ltd. for a total sale consideration of Rs. 5,53,457/- and claimed exempt u/s 10(38) of the I.T. Act, 1961 as bogus and treating this long term capital gain of Rs. 5,40,413/- on sale of above mentioned shares as unexplained credit u/s 68 of the Act. This is most arbitrary, unjust, untenable and bad in fact and in law and in the alternative excessive.
2.1 The ld. CIT(A) has erred in confirming the action of AO in not appreciating that M/s. Parag Shilpa Investments Ltd is a public limited company and its share are quoted in recognized stock exchange and its shares were sold by the assessee through authorized share broker on the online portion of the recognized stock exchange after paying STT and payment was received through banking channels.
2.2 That the ld. CIT(A) has further erred in confirming the above mentioned addition of Rs. 5,40,413/- made by the AO after inter alia observing that the financial transaction effected by the assessee were sham ones and that the entire edifice was only a colour device used to evade tax, which is most arbitrary, unjust and untenable in fact and in law and liable to be cancelled.'' 2.1 The Ground No.1 of the assessee is regarding violation of principles of natural justice due to not affording adequate opportunity of hearing to the assessee.
2.2 The ld.AR of the assessee has submitted that the ld. CIT(A) has decided the appeal of the assessee ex-parte when nobody attended the case on 22-03-2019. He has submitted that on earlier two occasions the 3 ITA No. 737/JP/2019 Shri Bhawani Kumar Shah vs ITO, Ward-7(1), Jaipur ld.AR of assessee duly appeared before the ld. CIT(A) and the matter was adjourned on subsequent dates. However, due to some confusion regarding the date of hearing as the appeal of the assessee HUF was also pending before the ld. CIT(A). The hearing could not be attended. Therefore, the ld.AR has stated at Bar that due to some inadvertent mistake on the part of the ld.AR and confusion about the date of hearing of two appeals pending before the ld. CIT(A) i.e. one of assessee individual and another of assessee HUF, he could not appear before the ld. CIT(A) on 22-03-2019. Thus he has pleaded that the matter may be set aside to the record of the ld. CIT(A) for granting one more opportunity of hearing to the assessee so that assessee can represent its case before the ld. CIT(A).
2.3 On the other hand, the ld. DR has objected to the prayer of the assessee and submitted that after seeking adjournments on two occasions nobody appeared on behalf of the assessee. The ld. CIT(A) thus has decided the appeal ex-parte.
2.4 Having considered the rival submissions and careful perusal of the impugned order, it is noted that the ld. CIT(A) has dismissed the appeal 4 ITA No. 737/JP/2019 Shri Bhawani Kumar Shah vs ITO, Ward-7(1), Jaipur of the assessee ex-parte due to the reasons of non-appearance on behalf of the assessee, though the appeal was decided on merit. The reasons recorded by the ld. CIT(A) for deciding the appeal ex-parte in para 2 of his order are as under:-
''2. The hearing in this case was initially fixed for 04-12- 2018 but on the appointed date neither appellant attend nor filed any adjournment letter. The notice again issued fixing for hearing on 11- 01-2019. On appointed date A/R of the Appellant attended and adjourn on 25-02-2019. On appointed date staff of the A/R attended and adjourn on 22-03-2019 but on the appointed date neither appellant attend nor filed any adjournment letter. Under the circumstances, it appears that the appellant does not want to pursue this appeal, therefore, I have no option but to decide the appeal on merits on the basis of material available on record.'' Thus it is clear that on earlier two occasions, the ld.AR of the assessee duly appeared before the ld. CIT(A). However, when hearing was adjourned on 22-03-2019, nobody appeared before the ld. CIT(A) and without issuing any fresh notice the ld. CIT(A) has decided the appeal ex- parte. The ld.AR has explained the reasons for non-appearance before the ld. CIT(A) that due to another appeal pending in the case of Bhawani Kumar Shah, (HUF) before the same ld. CIT(A), there was a confusion about the date of hearing and therefore, the non-appearance is due to inadvertent and bona fide mistake. The Tribunal finds that the reasons 5 ITA No. 737/JP/2019 Shri Bhawani Kumar Shah vs ITO, Ward-7(1), Jaipur explained by the ld.AR are reasonable cause for non-appearance before the ld. CIT(A) . Therefore, in the facts and circumstances of the case, the matter is set aside to the record of the AO for granting one more opportunity of hearing to the assessee and then deciding the same afresh.
3.0 In the result, the appeal of the assessee is allowed for Statistical purposes.
Order pronounced in the open court on 24 /07/2019.
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(Vijay Pal Rao)
U;kf;d lnL;@Judicial Member
Tk;iqj@Jaipur
fnukad@Dated:- 24/07/ 2019
*Mishra
vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- Shri Bhawani Kumar Shah, Jaipur
2. izR;FkhZ@ The Respondent- The ITO , Ward- 7 (1), Jaipur
3. vk;dj vk;qDr¼vihy) @ CIT(A),
4. vk;dj vk;qDr@ CIT,
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File (ITA No.737/JP/2019) vkns'kkuqlkj@ By order, lgk;d iathdkj@ Assistant. Registrar