ITA No.1660 /Kol/2013 Sri ManasSwaika IN INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH , KOLKATA (Before Shri S.S.Viswanethra Ravi, J.M. & Dr.A.L.Saini, A.M.) ITA No. 1660/Kol/2013 : Asstt. Year : 2008-09 Sri ManasSwaika Vs I.T.O., Ward-7(1), 25B, Shakespeare Sarani, P-7, Chowringhee Square, Kolkata 700 017 Kolkata 700 069 PAN: AKHPS 3743A (APPELLANT) (RESPONDENT) Appellant by: Shri Soumitra Choudhury, Advocate Respondent by:Shri Rajat Kumar Kureel, JCIT Date of Hearing : 05.09.2016 Date of Pronouncement :-23/09/16 ORDER Per Dr. A.L.Saini, A.M.: captioned appeal filed by assessee pertaining to assessment year 2008-09, is directed against order passed by Ld. Commissioner of Income- Tax (A) -VIII, Kolkata in appeal No.282/CIT(A)-VIII/Kol/2011-12 dated 22/03/2013, which in turn arises out of order passed by Assessing Officer under section 143(3)/147 of Income Tax Act, 1961 (in short, Act ), dated 23/12/ 2011. 2. facts of case are stated in brief. assessee filed return of income on 30 t h July, 2008 for Rs.1,16,500/-.The return was processed under section 143(1) of Act on 27.09.2008. Thereafter notice under section 148 dated 24 t h June, 2010 was served on assessee on 25.06.2010 after noting reasons as under: 1 ITA No.1660 /Kol/2013 Sri ManasSwaika return of assessee is perused. schedule for exempt income, under column 5 shows claim of exempt income of Rs.54,52,634/- with hand noted reasons for exempt income as sale of agricultural land . It is seen that there is no income from agriculture shown by assessee in part. Therefore, claim of land being agriculture, prima facie, is not tenable. If that be so, claim of gains on sale of such land as exempt is without any basis. 3. AO completed assessment under section 147 of Act and made addition on account of sale of agricultural land observing following: In instant case, although onus is on assessee to substantiate its claim, it abjectly failed to produce any proof that land in question was agriculture at time of sale. Therefore, it cannot be said that benefit which constitution gave farmer, shall be given to businessman who did not do anything on said land. As such, I treat said land at time of sale as land which is not agricultural land. 9. Conclusion 1. Since land is situated within 3 Kms from local limit of Howrah Municipality, said land is capital asset as defined u/s 2(14) of I T Act. 2. Even otherwise said land is not agricultural land in hand of assessee for reasons mentioned in above. 4. Aggrieved from order of Assessing Officer, assessee preferred appeal before ld CIT (Appeals) VIII-Kolkata, who has confirmed action of AO observing following: statement showing compliance of hearing notices and adjourned hearing dates of A/R of appellant from time to time is given below to observe trend of willingness and seriousness of appellant towards disposal of appeal.- 2 ITA No.1660 /Kol/2013 Sri ManasSwaika Date of Dt. of Mode of Remarks issue hearing communication 17.10.12 07.11.12 Notice server A/R appeared but request for adjournment and considered hearing on 22.11.2012 . 22.11.12 Further adjourned to 07.12.12 considering request of A/R 07.12.12 Partly discussed with A/R and again adjourned to19.12.12 19.12.12 None appeared 23.01.13 13.02.13 Speed Post A/R is asked urgently to appear with all documentary evidences in support of their appeal.No compliance in this regard is made except telephonic request for adjournment and considered.The hearing is adjourned to 28.02.13 . 28.02.13 Again telephonic request for further adjournment to 21.03.2013 and considered. 21.03.13 Neither appeared nor this time any request comes from A/R From above-statement it is noted that active several attempts for disposal of appeal were made but in vain. Under circumstances, it is presumed that appellant is not all serious to pursue appeal as well as nothing to present before appellate proceedings in favour of appeal filed by appellant. In view of this .appeal filed by appellant is hereby rejected and dismissed. 5. Not being satisfied with order of ld. CIT(A)-VIII, Kolkata, assessee is in further appeal before us. assessee has taken following grounds of appeal: 1. For that on facts of case, order passed by Ld. C.I.T.(A) is completely arbitrary, unjustified and illegal. 2. For that on facts of case, order passed by Ld.C.I.T.(A) without giving reasonable opportunity of hearing to 3 ITA No.1660 /Kol/2013 Sri ManasSwaika assessee which is completely arbitrary, unjustified and illegal. 3. For that on facts of case, Ld. C.I.T.(A) was wrong in not considering merit of case, therefore, order passed by Ld. C.I.T.(A) is completely arbitrary, unjustified and illegal. 4. For that on facts of case, Ld. C.I.T.(A) was wrong in dittoing order of A.O. and not considering facts that in reopening assessment u/s. 148 which is mere change of opinion and against requirement of law, as such his finding is completely arbitrary, unjustified and illegal. 5. For that on facts of case, Ld. C.I.T.(A) was wrong in dittoing order of A.O. and confirming addition amounting to Rs.52,17,516/- as Long Term Capital Gain on sale of agricultural land which is exempt u/s. 2(14) of I.T. Act which is completely arbitrary, unjustified and illegal. 6. For that on facts of case, Ld. C.I.T.(A) was wrong in dittoing order of A.O. and not considering facts that land sold was Sali land which is Agricultural land and is exempt from Long Term Capital Gain amounting to Rs.52,17,516/- which is completely arbitrary, unjustified and illegal. 7. For that interest u/s. 234B & 234D amounting to Rs.11,66,251/- and Rs.5,832/- respectively charged mechanically is wrong & illegal. 8. For that appellant reserves right to adduce any further ground or grounds, if necessary, at or before hearing of appeal. 6. We first deal with ground No.2 raised by assessee because there is issue involved in respect of natural justice. Ground No.2 reads as under: 4 ITA No.1660 /Kol/2013 Sri ManasSwaika 2. For that on facts of case, order passed by Ld.C.I.T.(A) without giving reasonable opportunity of hearing to assessee which is completely arbitrary, unjustified and illegal. 6.1 ld. AR for assessee has submitted that he has requested to give more time to submit relevant papers but ld. CIT(A) has not heard him. This is clearly mentioned by ld. CIT(A) in his order vide para 4 that assessee has requested over phone also to adjourn hearing and requested him to submit papers. Therefore, order delivered by ld. CIT(A) is against natural justice and we feel it appropriate to send back file to ld. CIT(A) to decide case afresh, after giving opportunity of being heard to assessee. Accordingly, we are of view that this issue requires fresh examination at end of ld. CIT(A). Accordingly, we set aside order of ld. CIT(A) and restore this issue to file of ld. CIT(A) with direction to ascertain facts of assessee, after giving reasonable opportunity of being heard to assessee, as discussed above. 7. In result, all grounds of appeal filed by assessee are allowed for statistical purposes. Order Pronounced in Open Court on 23.09.2016 Sd/- Sd/- (S.S.Viswanethra Ravi) (Dr. A.L.Saini) Judicial Member Accountant Member Dated:23 /09/2016 Talukdar (Sr.PS) 5 ITA No.1660 /Kol/2013 Sri Manas Swaika Copy of order forwarded to: 1. Revenue 2 Assessee 3. CIT-VIII-Kolkata, 4. CIT(A)-I, 5. DR, Kolkata Benches, Kolkata True Copy, By order, Asst. Registrar, ITAT, Kolkata Benches 6 ManasSwaika v. I.T.O., Ward-7(1), Kolkata