J.Samuvel, Tirunelveli V. ITO Ward 1(4), Tirunelveli

ITA 288/CHNY/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5771 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 06-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: B RAMAKRISHNAN
• Keywords: Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI . . . , , [BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ] ./I.T.A. NO.288/CHNY/2019 ! / ASSESSMENT YEAR : 2007-2008. SHRI. J. SAMUVEL, B-193, 12 TH CROSS STREET, NGO, A COLONY, TIRUNELVELI 627 007. [PAN BBNPS 8519K] VS. THE INCOME TAX OFFICER, WARD 1(4) TIRUNELVELI. ( / APPELLANT) ( /RESPONDENT) '# $ % / APPELLANT BY : SHRI. B. RAMAKRISHNAN, FCA &' '# $ % /RESPONDENT BY : SHRI. SRIDHAR DORA, IRS, JCIT. ( ) $ * /DATE OF HEARING : 04-06-2019 +,! $ * /DATE OF PRONOUNCEMENT : 08-08-2019 / O R D E R PER INTURI RAMA RAO, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED A GAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I I, MADURAI (CIT(A) FOR SHORT) DATED 27.08.2014 FOR THE ASSES SMENT YEAR (AY) 2007-2008. ITA NO. 288/CHNY/2019. :- 2 -: 2. AT THE OUTSET, THERE IS A DELAY OF ONE THOUSAND FI VE HUNDRED THIRTY THREE DAYS IN FILING THE PRESENT AP PEAL BY THE ASSESSEE. THE ASSESSEE HAD FILED PETITION PRAYING FOR CONDONING THE DELAY STATING THAT HIS DAUGHTER WHO IS SEVENTEEN YEARS OLD HAD KIDNEY FAILURE HAD UNDERGONE KIDNEY TRANSPLANTATI ON AND ASSESSEES WIFE WAS DONOR OF THE KIDNEY AND ASSESSEE WAS ATTE NDING HIS DAUGHTER, HENCE HE COULD NOT FILE THE APPEAL IN TIM E. IN SUPPORT OF THIS, HE ALSO FILED DOCTOR CERTIFICATE FROM ONE DR. K. SA MPATHKUMAR. THUS, IT WAS PRAYED THAT DELAY IS NEITHER WILLFUL NOR WA NTON AND THEREFORE PRAYED FOR CONDONING THE DELAY. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE DID NOT RAISE ANY SE RIOUS OBJECTION FOR CONDONING THE DELAY. IN THE CIRCUMSTANCES, WE CON DONE THE DELAY OF ONE THOUSAND FIVE HUNDRED THIRTY THREE DAYS IN FIL ING THE APPEAL AND ADMIT THE APPEAL FOR ADJUDICATION. 3. THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. FOR THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX U/S.144 OF THE INCOME TAX ACT, 1961 IS O PPOSED TO LAW, FACTS AND CIRCUMSTANCES OF THE CASE. 2. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX ERRED IN PASSING AN EXPARTE ORDER WITHOUT ALLOWING PROPER OP PORTUNITY OF BEING HEARD. 3. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX ERRED IN CONFIRMING THE ADDITION OF LONG TERM CAPITAL GAINS OF RS.55,17,360. (TAX EFFECT IS RS. 12,15,642/-) ITA NO. 288/CHNY/2019. :- 3 -: 4. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX ERRED IN NOT CONSIDERING THAT THE APPELLANT IS ONE OF THE SI X LEGAL HEIRS WHO ACTED AS A POWER AGENT OF OTHER 5 MEMBERS. 5. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX ERRED IN NOT CONSIDERING THAT THE APPELLANT WAS A POWER AGEN T AND THE ADDITION SHOULD BE MADE ONLY WITH RESPECT TO HI S SHARE OF CONSIDERATION (L/6T SHARE) AND NOT THE ENTIRE VALUE OF CONSIDERATION. 6. FOR THAT THE LEARNED COMMISSIONER OF INCOME TAX OUGHT TO HAVE CONSIDERED THE FACT THAT A SUIT WAS FILED A ND THE APPEAL IS PENDING BEFORE THE HONBLE HIGH COURT OF MADRAS, MADURAI BENCH WITH RESPECT TO THE SUBJECT PROPERTY IN WHICH ALL THE FAMILY MEMBERS WERE IMPLEADED. 7. FOR THESE GROUNDS AND SUCH OTHER GROUNDS THAT MA Y BE ADDUCED BEFORE OR DURING THE HEARING OF THE APPEAL, IT IS PRAYED THAT THE HONBLE TRIBUNAL MAY BE PLEASED TO CANCEL THE ASSESSMENT AND/OR TO DELETE THE ADDITION MADE I N THE ASSESSMENT ORDER AND PASS SUCH OTHER ORDERS AS THE HONBLE TRIBUNAL MAY DEEM FIT. 4. THE BRIEF FACTS OF THE CASE ARE AS UNDER: THE APPELLANT IS AN INDIVIDUAL ENGAGED IN THE BUSIN ESS OF REAL ESTATE BROKERAGE. THE ORIGINAL RETURN OF INCOME FO R THE AY 2007-08 WAS NOT FILED BY THE ASSESSEE. HOWEVER, THE ASSES SING OFFICER BASED ON INFORMATION THAT ASSESSEE SOLD 101 CENTS OF LA ND AT SURVEY NO.745/1 & 746/1, 27 TH WARD, KULAVANIKARPURAM VILLAGE, TIRUNELVELI DISTRICT, WHOSE GUIDELINE VALUE WAS H55,37,300/- I SSUED NOTICE U/S.148 OF THE ACT ON 24.06.2009 AND EVEN THE ASSESSEE HAD NOT RESPONDED TO THE ABOVE NOTICE. THEREFORE THE ASSESSMENT WAS COMP LETED BY THE INCOME TAX OFFICER, WARD I(4), TIRINELVELI (HEREIN AFTER CALLED ITA NO. 288/CHNY/2019. :- 4 -: ASSESSING OFFICER) VIDE ORDER DATED 30.12.2010 PASSED U/S.144 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) ASSE SSING LONG TERM CAPITAL GAINS ON SALE OF LAND AT KULAVANIKARPURA M VILLAGE, TIRUNELVELI DISTRICT AT H55,17,360/- AND ALSO INCOME FROM REAL ESTATE BROKERAGE OF H1,61,410/-. 5. BEING AGGRIEVED, AN APPEAL WAS PREFERRED BEFORE TH E LD. CIT(A), WHO VIDE IMPUGNED ORDER HAD CONFIRMED THE ADDITION ON ACCOUNT OF LONG TERM CAPITAL GAINS, HOWEVER, DELETE D THE ADDITION ON REAL ESTATE BROKERAGE. DESPITE NOTICE, NONE APPEARE D ON BEHALF OF THE ASSESSEE, THE LD. CIT(A) DISPOSED THE APPEAL ON MER ITS. 6. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A), TH E APPELLANT IS IN APPEAL BEFORE US IN THE PRESENT APPEAL. IT IS SUBMITTED BEFORE US THAT NONE APPEARED BEFORE THE LOWER AUTHORITIES DU E TO AILMENT OF ASSESSEES DAUGHTER. THEREFORE, THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER FOR DENOVO ASSESS MENT. 7. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE DID NOT RAISE ANY SERIOUS OBJECTION. 8. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATE RIAL ON RECORD. IN THE CIRCUMSTANCES MENTIONED ABOVE, WE AR E OF THE CONSIDERED OPINION THAT IT IS A FIT CASE TO BE REM ITTED BACK TO THE FILE OF ITA NO. 288/CHNY/2019. :- 5 -: THE ASSESSING OFFICER FOR DENOVO ASSESSMENT AFTER A FFORDING DUE OPPORTUNITY OF HEARING TO THE APPELLANT. HENCE, AP PEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES . 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 8TH DAY OF AUGUST, 2019, AT CH ENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER ( ) (INTURI RAMA RAO) /ACCOUNTANT MEMBER - ) / CHENNAI . / DATED:8 TH AUGUST, 2019. KV $ &*01 21!* / COPY TO: 1 . '# / APPELLANT 3. ( 3* () / CIT(A) 5. 16 &*7 / DR 2. &' '# / RESPONDENT 4. ( 3* / CIT 6. 8 9) / GF