HASINA AKBAR GAWANDI,BOISAR V. CIT (APPEALS), DELHI

ITA 3377/MUM/2024

AI Insights

This case involves an appeal by Hasina Akbar Gawandi against the order of the Commissioner of Income Tax (Appeals) at the National Faceless Appeal Centre, which upheld the additions made by the Assessing Officer regarding unreported capital gains from a Joint Development Agreement. The assessee argued that the agreement, which involved no cash but a residential property, should not be treated as a sale under the Income Tax Act, 1961, specifically under Section 45(5A), which states that the taxability of such transactions arises in the year a completion certificate is issued. The Assessing Officer had treated the agreement as a sale, leading to the taxation of long-term capital gains, which the assessee contested. The Tribunal found merit in giving the assessee another chance to present her case, considering her circumstances and the principles of natural justice.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 25871 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 22-10-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 28-06-2024
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KARPE
• Assessee Lawyers: MOHAMMED MEMON
• Keywords: Capital Gains; Principle of natural justice; Competent authority; Non compliance
• Section: 148; 144

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI BEFORE MS. KAVITHA RAJAGOPAL, JM AND SHRI GAGAN GOYAL, AM ITA No. 3377/Mum/2024 (Assessment Year: 2011-12) Hasina Akbar Gawandi C-1/6, First Floor, K.P. Nagar, Behind Contessa Hotel Taps, Boisar, Palghar, Maharashtra-401 506 Vs. CIT(Appeals) Income Tax Department, NFAC, Delhi PAN/GIR No. AGYPG 0843 K (Assessee) : (Respondent) Assessee by : Shri Mohammed Memon Respondent by : Shri Avinash Karpe Date of Hearing : 22.10.2024 Date of Pronouncement : 30.10.2024 O R D E R Per Kavitha Rajagopal, J M: This appeal has been filed by the assessee, challenging the order of the learned Commissioner of Income Tax (Appeals) (‘ld.CIT(A) for short), National Faceless Appeal Centre (‘NFAC’ for short) passed u/s.250 of the Income Tax Act, 1961 (‘the Act'), pertaining to the Assessment Year (‘A.Y.’ for short) 2011-12. 2. The assessee has challenged this appeal on the following grounds: The assessee had entered into a Joint Venture Agreement with a builder on 21st January 2011. According to this agreement, the consideration was exclusively in the form of a residential property, with no cash involved. Under Section 45(5A) of the Income Tax Act, 1961, the taxability for transactions under a Joint Development Agreement arises in the year in which the completion certificate for the whole or part of the property is issued by the competent authority. However, the Assessing Officer erroneously treated the Joint Development Agreement as a sale and subsequently passed an order to tax the Long Term Capital Gains. The assessee contends that this order is erroneous and does not align with the legal provisions governing the taxability of Joint Development Agreements. 2 ITA No.3377/Mum/2024 (A.Y.2011-12) Hasina Akbar Gawandi vs. CIT(Appeals) 3. The brief facts are that the assessee is an individual and had not filed her return of income for the year under consideration. The learned Assessing Officer (ld. A.O. for short) reopened the assessee’s case vide notice u/s. 148 of the Act dated 26.03.2018 for the reason that the assessee along with 15 other joint co-owners had sold an immovable property for a sale consideration of Rs.12,50,000/- during the year under consideration, which market value according to the ld. A.O. was Rs.92,50,000/- as per the stamp duty authority for the purpose of stamp duty payment, thereby on the belief that income as escaped assessment. The assessee filed her return of income in response to the notice u/s. 148 of the Act declaring total income at Rs.1,20,000/-. The ld. A.O. then passed the assessment order u/s. 144 r.w.s. 147 of the Act on 17.12.2018 being the best judgment assessment, as the assessee has been non compliant, thereby determining the total income at Rs.6,98,125/- after making an addition/disallowance of Rs.5,78,125/- towards the capital gain not offered for taxation. 4. Aggrieved the assessee had challenged the assessment order before the ld. CIT(A). 5. The ld. CIT(A) vide an ex parte order dated 30.04.2024 had upheld the additions made by the A.O. on the ground that the assessee has failed to furnish any documentary evidence in support of her claim and has been non compliant throughout the appellate proceeding. 6. Aggrieved the assessee is in appeal before us, challenging the order of the ld. CIT(A). 3 ITA No.3377/Mum/2024 (A.Y.2011-12) Hasina Akbar Gawandi vs. CIT(Appeals) 7. The learned Authorised Representative ('ld. AR' for short) for the assessee contended that the assessee being an uneducated woman from underprivileged class of society was unable to attend the proceeding before the lower authorities. The ld. AR further contended that the assessee has got a good case on the merits and prayed that the assessee may be given one more opportunity to present her case before the ld. A.O. 8. The learned Departmental Representative ('ld.DR' for short) opposed to setting aside the issue to the file of the ld. A.O. for the reason that the assessee was given several opportunity by the lower authorities which was not availed by the assessee. 9. Having heard the rival submissions and perused the materials available on record. We deem it fit and proper to provide the assessee with one more opportunity to furnish the documentary evidence in support of her claim before the A.O. as in accordance with the principle of natural justice. The assessee is directed to co-operate with the proceedings before the A.O. by furnishing all the relevant documentary evidence without causing any delay. The A.O. is directed to peruse the same and to decide the case on merits. We hereby remand this appeal to the file of the A.O. for de novo assessment. 10. In the result, the appeal filed by the assessee is allowed for statistical purpose. Order pronounced in the open court on 30.10.2024. Sd/- Sd/- (Gagan Goyal) (Kavitha Rajagopal) Accountant Member Judicial Member Mumbai; Dated :30.10.2024 Roshani, Sr. PS 4 ITA No.3377/Mum/2024 (A.Y.2011-12) Hasina Akbar Gawandi vs. CIT(Appeals) Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. CIT- concerned 4. DR, ITAT, Mumbai 5. Guard File BY ORDER, (Dy./Asstt.Registrar) ITAT, Mumbai "