LATE SHRI PADAM CHAND JAIN, JAIPUR V. ITO, WARD-5(3), JAIPUR

ITA 1230/JPR/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4833 (ITAT-JAIPUR)
• Duration Of Justice: 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 30-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANCHAL MEENA ACIT DHK
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition; Benefit of exemption; Set aside
• Section: 50C; 251; 143(2); 48; 147; 148; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH FOT; IKY JKO] U;KF;D LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 1230/JP/2019 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 LATE SH. PADAM CHAND JAIN L/H RAJIV CHHABRA, 10/549, KABERI PATH, MANSAROVER, JAIPUR. CUKE VS. THE ITO, WARD-5(3), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABMPJ 3932 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : NONE JKTLO DH VKSJ LS@ REVENUE BY : MISS CHANCHAL MEENA (ACIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 13/10/2020 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 14/10/2020 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 26.08.2019 OF LD. CIT(A)-II, JAIPUR FOR THE ASSESSM ENT YEAR 2008-09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. THAT THE LEARNED CIT(A) WENT WRONG IN DISMISSIN G THE APPEAL WITHOUT CONSIDERING THE FACTS MENTIONED IN FORM NO. 35 AND THE GROUNDS OF APPEAL FROM NO.1 TO 5. 2. THAT AS PER SEC. 251 THE CIT(A) HAS NOT GIVEN RE ASONABLE OPPORTUNITY TO THE APPELLANT TO DISCUSS THE GROUNDS OF APPEAL. ITA NO. 1230/JP/19 LATE SH. PADAM CHAND JAIN VS. ITO 2 3. THAT THE NOTICE U/S 148 WAS ISSUED IN THE NAME O F THE DECEASED. HENCE, THE PROCEEDINGS INITIATED ARE BAD IN LAW AND THE ASSESSMENT U/S 147 IS ALSO BAD IN LAW. 4. THAT THE INDEXED COST OF ACQUISITION U/S 48 IS A LSO WORKED ON THE ARBITRARY AMOUNT OF COST OF ACQUISITION. 5. THAT WHILE WORKING OUT THE TAX ON CAPITAL GAIN T HE BENEFIT OF EXEMPTION LIMIT OF RS. 110000/- WAS NOT GIVEN. 6. THAT NO NOTICE U/S 143(2) WAS ISSUED AND HENCE T HE ASSESSMENT MADE U/S 144 IS BAD IN LAW. 7. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, A MEND OR WITHDRAW ANY OF THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 2. HEARING OF THE APPEAL WAS CONCLUDED THROUGH VIDE O CONFERENCE DUE TO PREVAILING COVID-19 PANDEMIC SITUATION. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE WHEN THIS APPEAL WAS CALLED FOR HEA RING. HOWEVER, THE ASSESSEE HAS FILED A LETTER DATED 10.10.2020 WHEREB Y IT IS PLEADED THAT THE WRITTEN SUBMISSION ALREADY FILED BY THE ASSESSEE MA Y BE CONSIDERED FOR DECIDING THE CASE. ACCORDINGLY THE APPEAL OF THE AS SESSEE IS PROPOSED TO BE HEARD AND DECIDED ON THE BASIS OF THE WRITTEN SU BMISSION. 3. THE LD. DR SUBMITTED THAT IT IS A CASE OF NON FI LING OF RETURN OF INCOME BY THE ASSESSEE AND THE ASSESSING OFFICER HA S RECEIVED INFORMATION REGARDING THE SALE OF IMMOVABLE PROPERTY BY THE ASS ESSEE. THE AO ACCORDINGLY ISSUED NOTICE U/S 148 OF THE ACT ON 26. 03.2015. THE ITA NO. 1230/JP/19 LATE SH. PADAM CHAND JAIN VS. ITO 3 ASSESSMENT WAS COMPLETED U/S 144 R.W.S. 147 OF THE ACT AS THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME IN RESPONSE TO N OTICE U/S 148 OF THE ACT. THE AO HAS ASSESSED THE INCOME OF THE ASSESSEE BEIN G LONG TERM CAPITAL GAIN OF RS. 5,99,646/- AFTER ALLOWING THE INDEX COS T OF ACQUISITION. THUS, THE LD. DR HAS SUBMITTED THAT THE ASSESSING OFFICER HAS ACTED IN ACCORDANCE WITH LAW AND THE LONG TERM CAPITAL GAIN WAS COMPUTED AS PER THE PROVISIONS OF SECTION 50C OF THE INCOME TAX ACT AFTER ALLOWING THE INDEX COST OF ACQUISITION. THE LD. DR HAS FURTHER C ONTENDED THAT THE ASSESSEE CHALLENGED THE ORDER OF THE ASSESSING OFFI CER BEFORE THE LD. CIT(A) HOWEVER NONE HAS APPEARED OR ATTENDED THE PR OCEEDINGS BEFORE THE LD. CIT(A) AND SUBSEQUENTLY THE APPEAL OF THE A SSESSEE WAS DECIDED EX-PARTE. 4. AFTER GOING THROUGH THE WRITTEN SUBMISSION OF TH E ASSESSEE AS WELL AS THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) IT I S NOTED THAT THE ASSESSEE IN THE STATEMENT OF FACT HAS EXPLAINED CER TAIN DETAILS AS WELL AS RAISED THE OBJECTION AGAINST THE VALIDITY OF THE NO TICE ISSUED U/S 148 OF THE ACT DUE TO THE REASON THAT THE NOTICE WAS ISSUED IN THE NAME OF DECEASED ASSESSEE WHO EXPIRED ON 01.02.2010 WHEREAS THE NOT ICE ISSUED U/S 148 WAS ISSUED ON 26.03.2015. FURTHER, THE ASSESSEE HAS ALSO CHALLENGED THE INDEX COST OF ACQUISITION AS WORKED OUT BY THE ASSE SSING OFFICER WITHOUT ITA NO. 1230/JP/19 LATE SH. PADAM CHAND JAIN VS. ITO 4 CONSIDERING THE ACTUAL COST OF ACQUISITION AND NOT ALLOWING THE MINIMUM EXEMPT LIMIT OF RS. 1,10,000/- WHILE ISSUED A DEMAN D NOTICE. ALL THESE SUBMISSIONS ARE PART OF THE STATEMENT OF FACT AS WE LL AS GROUNDS OF APPEAL ATTACHED IN FORM NO. 35 BEING THE MEMO OF APPEAL BE FORE THE LD. CIT(A). THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSE SSEE WITHOUT EVEN CONSIDERING THE BARE FACTS AS STATED IN THE STATEME NT OF FACT AND WITHOUT VERIFYING THE CORRECTNESS OF THE FACTS STATED IN FO RM NO. 35. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE WHEN LD. CI T(A) HAS NOT PASSED A SPEAKING ORDER THE SAME IS SET ASIDE AND THE MATTER IS REMANDED TO THE RECORD OF LD. CIT(A) FOR DECIDING THE SAME AFRESH B Y PASSING A SPEAKING ORDER AFTER GIVING ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14/10/2020. SD/- FOT; IKY JKO (VIJAY PAL RAO) U;KF;D LNL; @ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 14/10/2020 *SANTOSH VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- LATE SH. PADAM CHAND JAIN, JAIPUR. 2. IZR;FKH @ THE RESPONDENT- ITO, WARD-5(3), JAIPUR. 3. VK;DJ VK;QDR @ CIT ITA NO. 1230/JP/19 LATE SH. PADAM CHAND JAIN VS. ITO 5 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 1230/JP/19) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR