SHRI KALURAM BALAI, JAIPUR V. INCOME TAX OFFICER, WARD-2-5, JAIPUR

ITA 1275/JPR/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2082 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-04-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 13-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P C JAIN
• Keywords: Capital asset; Cost of acquisition; Assessment record; Set aside; Capital Gains
• Section: 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 BENCHE S , JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 1275/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 KALURAM BALAI S/O RODU RAM VILLAGE- BHAKHROTA KHURD, PANCHAYAT- AJAYRAJPURA THESIL- SANGANER, JAIPUR CUKE VS. THE ITO, WARD-2(5), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ALMPB 1874 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P.C.JAIN (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SMT. RUNI PAL (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 23/03/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 15/04/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A)-I, JAIPUR DATED 28.09.2018 FOR THE ASSESSMEN T YEAR 2019-10 WHEREIN HE HAS CONFIRMED THE ADDITION OF RS. 40,00 ,000/- MADE BY THE ASSESSING OFFICER UNDER THE HEAD LONG TERM CAPITAL GAINS. 2. AT THE OUTSET, IT IS NOTED THAT BOTH THE ORDERS OF THE ASSESSING OFFICER AS WELL AS LD. CIT(A) HAVE BEEN PASSED EX-PARTE QUA THE ITA NO. 1275JP/2018 KALURAM BALAI VS. ITO 2 ASSESSEE. FURTHER, IT IS NOTED THAT THE WHOLE OF TH E SALE CONSIDERATION ON SALE OF THE IMMOVABLE PROPERTY AMOUNTING TO RS. 40, 00,000/- HAS BEEN BROUGHT TO TAX WITHOUT ALLOWING DEDUCTION FOR THE C OST OF ACQUISITION. 3. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT THE NOTICE ISSUED BY THE ASSESSING OFFICER HAS NOT BEEN SERVED ON THE ASSESSEE AND THEREFORE, IN ABSENCE OF NOTICE BEING SERVED ON THE ASSESSEE, THE PROCEEDINGS SO INITIATED U/S 147 ARE BAD IN LAW. FU RTHER, DURING THE APPELLATE PROCEEDINGS, THE ASSESSEE HAS APPEARED TH ROUGH HIS LD. AR BEFORE THE LD. CIT(A) AND SOUGHT ADJOURNMENT HOWEVE R, ON THE SUBSEQUENT DATE, AGAIN NOTICES WERE NOT SERVED ON T HE ASSESSEE. IT WAS ACCORDINGLY SUBMITTED THAT THE ASSESSEE HAS A REASO NABLE CAUSE FOR NON APPEARANCE BEFORE THE LOWER AUTHORITIES. IT WAS FUR THER SUBMITTED THAT DLC VALUE AS ADOPTED BY THE SUB-REGISTRAR HAS BEEN CONSIDERED AS THE FULL VALUE OF THE CONSIDERATION WITHOUT GIVING BENE FIT OF COST OF ACQUISITION WHILE WORKING OUT LONG TERM CAPITAL GAI NS. 4. PER CONTRA, THE LD. DR SUBMITTED THAT NOTICE ISS UED U/S 148 HAS BEEN DULY SERVED ON THE ASSESSEE AND OUR REFERENCE WAS DRAWN TO THE FINDINGS OF THE LD. CIT(A) WHEREIN HE HAS STATED TH AT NOTICE DATED 23.03.2016 ISSUED U/S 148 OF THE ACT WAS DULY SERVE D UPON THE ASSESSEE ON 29.03.2016 AS PER SPEED POST RECEIPT WH ICH IS PART OF THE ASSESSMENT RECORD. IT WAS ACCORDINGLY SUBMITTED THA T THERE IS NO BASIS IN THE CONTENTION ADVANCED BY THE LD. AR THAT THE N OTICE HAS NOT BEEN SERVED ON THE ASSESSEE. IT WAS FURTHER SUBMITTED TH AT THE LD. CIT(A) HAS GIVEN MORE THAN ADEQUATE OPPORTUNITY TO THE ASSESSE E TO PRESENT HIS CASE HOWEVER THERE HAS BEEN NO COMPLIANCE ON THE PA RT OF THE ASSESSEE ITA NO. 1275JP/2018 KALURAM BALAI VS. ITO 3 NOR ANY WRITTEN SUBMISSIONS WERE FILED. IT WAS ACCO RDINGLY SUBMITTED THAT THERE IS NO INFIRMITY IN THE ORDER OF THE LOWE R AUTHORITIES AND THE SAME SHOULD BE CONFIRMED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSE SSMENT HAS BEEN COMPLETED U/S 148 R.W.S. 144 OF THE ACT DATED 05.12 .2016 WHEREIN THE WHOLE OF THE SALE CONSIDERATION ON THE SALE OF AGRI CULTURAL LAND AMOUNTING TO RS. 40,00,000/- HAS BEEN BROUGHT TO TA X BY THE ASSESSING OFFICER. ON APPEAL, THE LD. CIT(A) HAS CONFIRMED TH E SAID ADDITION HOLDING THAT DURING THE APPELLATE PROCEEDINGS, THE ASSESSEE HAS NOT STATED ANYTHING ABOUT THE COST OF ACQUISITION OF TH E LAND UNDER CONSIDERATION. FURTHER, THE CIT(A) HAS STATED THAT IN VIEW OF THE PROVISIONS OF SECTION 148 OF THE ACT, THERE IS NO D ISPUTE THAT COST OF ACQUISITION IS TO BE ALLOWED FROM THE SALE CONSIDER ATION FOR COMPUTING THE CAPITAL GAINS ON THE SALE OF THE CAPITAL ASSETS . HOWEVER, GIVEN THAT THE ASSESSEE HAS NOT STATED THE COST OF ACQUISITION OF THE LAND EITHER DURING THE ASSESSMENT PROCEEDINGS OR DURING THE APP ELLATE PROCEEDINGS, THE COST OF ACQUISITION COULD NOT BE ALLOWED TO THE ASSESSEE. WE, THEREFORE, FIND THAT THERE IS NO DISPUTE THAT WHILE BRINGING TO TAX THE SALE CONSIDERATION ON SALE OF THE LAND, THE COST OF ACQUISITION HAS TO BE ALLOWED TO THE ASSESSEE U/S 148 OF THE ACT. HOWEVER , GIVEN THAT THE ASSESSEE HAS NOT APPEARED BEFORE THE LOWER AUTHORIT IES, SUCH A CLAIM HAS NOT BEEN ALLOWED TO THE ASSESSEE. BEFORE US, T HE LD AR HAS SUBMITTED THAT NOTICES HAVE NOT BEEN SERVED ON THE ASSESSEE. HENCE, THE ASSESSEE WAS NOT IN A POSITION TO APPEAR BEFORE THE LOWER AUTHORITIES AND EVEN CONTESTED THE REOPENING OF THE ASSESSMENT U/S ITA NO. 1275JP/2018 KALURAM BALAI VS. ITO 4 147 OF THE ACT. THE CONTENTION SO ADVANCED ON BEHA LF OF THE ASSESSEE HAS BEEN DISPUTED BY THE REVENUE HOWEVER, WE FEEL T HAT IN THE INTEREST OF JUSTICE AND FAIR PLAY WHERE THERE IS NO DISPUTE THAT THE COST OF ACQUISITION HAS TO BE ALLOWED TO THE ASSESSEE FROM THE SALE CONSIDERATION WHILE COMPUTING THE CAPITAL GAINS, WE BELIEVE THAT THE ASSESSEE DESERVES ONE LAST OPPORTUNITY TO PUT FORTH HIS ARGUMENTS AND CONTENTIONS AND WE ACCORDINGLY SET ASIDE THE MATTER TO THE FILE OF THE LD. CIT(A) TO EXAMINE THE MATTER AFRESH AFTER PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE, LEAVING ALL THE CONTEN TIONS RAISED BY THE ASSESSEE OPEN WHICH CAN BE RAISED BEFORE THE LD CIT (A). THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE LD. CIT(A) AN D FILE THE NECESSARY INFORMATION AND DOCUMENTATION IN SUPPORT OF HIS CON TENTIONS, AS SO ADVISED AND ENSURE IN TIMELY COMPLETION OF THE PROC EEDINGS. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 15/04/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 15/04/2020. * SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- KALURAM BALAI, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-2(5), JAIPUR. 3. VK;DJ VK;QDR@ CIT ITA NO. 1275JP/2018 KALURAM BALAI VS. ITO 5 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 1275/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR.