Smt. Indira Yadav, Jhansi V. ITO.,-2(3)(4), Lalitpur

ITA 425/AGR/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 1755 (ITAT-AGRA)
• Duration Of Justice: 2 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 29-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SITA SRIVASTAV
• Keywords: Sale consideration of property below Jantri Value; Principle of natural justice; Fair market value; Validity of assessment; Capital Gains
• Section: 50C; 148

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI LALIET KUMAR, JUDICIAL MEMBER AND DR. MITHA LAL MEENA, ACCOUNTANT MEMBER ITA NO. 425/AGR/2018 ASSESSMENT YEAR: 2011-12 SMT. INDIRA YADAV, W/O LATE SHRI MAHENDRA SINGH YADAV, 188, KK PURI AVAS VIKAS COLONY, JHANSI. PAN: ABPPY7595J (APPELLANT) VS. INCOME - TAX OFFICER, WARD 2(3)(4), LALITPUR (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SMT. SITA SRIVASTAV, SR. DR ORDER PER LALIET KUMAR, J.M.: THIS APPEAL IS DIRECTED BY ASSESSEE AGAINST THE O RDER OF LD. CIT(A)-2, AGRA DATED 19.03.2018 FOR ASSESSMENT YEAR 2011-12, ON TH E FOLLOWING GROUNDS : 1. THAT THE C.L.T. (A) HAS ERRED ON FACTS AND IN LAW TO HOLD THAT THE NOTICE U/S 148 CLAIMED TO HAVE BEEN ISSUED AT THE ADDRESS 'MAJ RA BANDESHRA, P.O. - KHANDI TALBEHAT, LALITPUR WAS SERVED ON THE APPELLANT WHEN APPELLANT WAS RESIDING AT THE ADDRESS 188, K.K. PURI. AVAS VIKAS COLONY, JHANSI A T WHICH ADDRESS THE ORDER HAS BEEN PASSED. 2. THAT IN ABSENCE OF SERVICE OF NOTICE U/S 148 DATED 09.03.2015, JURISDICTION ASSUMED TO COMPLETE THE ASSESSMENT IS ILLEGAL AND A SSESSMENT FRAMED IS AB-INITIO VOID. 3. THAT THE NOTICE U/S 148 DATED 09.03.2015 CLAIMED TO HAVE BEEN ISSUED DID NOT ACCOMPANY THE REASONS RECORDED AND THE NOTICE BEING INVALID, THE JURISDICTION ASSUMED TO COMPLETE THE ASSESSMENT IS ILLEGAL. DATE OF HEARING 02.03.2021 DATE OF PRONOUNCEMENT 02 .03.2021 ITA NO. 425/AGRA/2018 2 4. THAT THE ADDITION FOR LONG-TERM CAPITAL GAIN SUSTAINED AT RS. 1424488/- IS ILLEGAL WITHOUT DETERMINING THE FAIR MARKET VALUE AS PER RA TIO LAID DOWN BY THE HONBLE COURTS. 5. THAT THE C.L.T. (A) HAS ERRED ON FACTS AND IN LAW TO ALLOW BENEFIT OF IMPROVEMENT COST OF PLOT OF LAND MADE AT RS. 200000A IN ASSESSM ENT YEAR 1982-83 AND FURTHER RS. 300000/- MADE IN ASSESSMENT YEAR 1990-91 FOR EARTH FILLING AND STONE REMOVING. 6. THAT THE C.L.T. (A) HAS FAILED TO CONSIDER THE C OMPARABLE CASES WHERE THE LAND SITUATED IN THE SAME VICINITY HAS FETCHED THE LOWER SHARE MARKET VALUE AND THE COMPARABLE CASES, SUBMITTED REPORT THE C.I.T. (A) H AS BEEN IGNORED WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE AND THE CAPITAL GA IN ASSESSED AT RS. 1424488/- IS EXCESSIVE AND ARBITRARY. 2. THE BRIEF FACTS OF THE CASE ARE THAT BASED ON THE I NFORMATION GATHERED BY ASSESSING OFFICER THAT THE ASSESSEE HAD SOLD IMMOVA BLE PROPERTY FOR RS.4,80,000/- WHEREAS THE STAMP DUTY VALUATION OF THIS PROPERTY W AS RS.15,61,000/- AND THAT THE ASSESSEE HAD NOT FILED ANY RETURN OF INCOME, THE C ASE OF THE ASSESSEE WAS REOPENED U/S. 147/148 AND THE ASSESSING OFFICER ASSESSED THE LONG TERM CAPITAL GAINS AT RS.14,24,488/- AFTER RESORTING TO THE PROVISIONS OF SECTION 50C OF THE ACT . LEARNED CIT(A), ON APPEAL, AFFIRMED THE ADDITION MADE BY AS SESSING OFFICER. 3. NONE IS PRESENT ON BEHALF OF THE ASSESSEE. THE L D. DR SUPPORTED THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THE ASSESSEE HAS NOT BEEN ABLE TO ADDUCE ANY MATERIAL OR EVIDENCE ON RECORD TO SUPPORT THE GROUN DS RAISED IN THIS APPEAL AND TO DISCARD THE FINDING OF FACTS AND LAW RECORDED BY TH E LD. CIT(A). 4. WE HAVE GONE THROUGH THE MATERIAL ON RECORD IN T HE LIGHT OF SUBMISSIONS OF THE LD. DR. THE CONTENTIONS OF THE ASSESSEE RAISED IN THE GROUNDS OF APPEAL ARE TWO FOLD. FIRST THE NOTICE U/S. 148 WAS ISSUED ON WRONG ADDRE SS AT MAJRA BANDESHRA, PO KHANDI TALBEHAT, LALITPUR, WHEREAS THE ASSESSEE WAS RESIDING AT 188, KK PURI, AVAS ITA NO. 425/AGRA/2018 3 VIKAS COLONY, JHANSI AND HENCE, NO PROPER SERVICE O F NOTICE WAS MADE BEFORE PASSING THE IMPUGNED ASSESSMENT ORDER. SECOND, WHILE CALCUL ATING THE CAPITAL GAINS, THE LD. AUTHORITIES BELOW HAVE FAILED TO GIVE CREDIT OF IMP ROVEMENT COST OF PROPERTY INCURRED BY THE ASSESSEE. IT IS NOT IN DISPUTE THAT THE ASSESSMENT ORDER WAS PASSED EXPARTE IN ABSENCE OF THE ASSESSEE. A PERUSAL OF AS SESSMENT ORDER SHOWS THAT IT MENTIONS BOTH THE ADDRESSES OF ASSESSEE, WHICH INCL UDES HER RESIDENTIAL ADDRESS TOO, MEANING THEREBY THE ASSESSING OFFICER WAS ACKNOWLED GED WITH THE RESIDENTIAL ADDRESS OF THE ASSESSEE BEFORE PASSING THE ASSESSME NT ORDER UNDER CONSIDERATION, WHEREAS THE NOTICE WAS NOT SENT TO SUCH ADDRESS OF THE ASSESSEE. HOWEVER, SINCE THERE IS NONE ON BEHALF OF THE ASSESSEE BEFORE US T O EXPLAIN WHETHER THE ADDRESS ON WHICH THE NOTICE WAS SENT TO THE ASSESSEE WAS NOT H ER ADDRESS, IT CAN HARDLY BE ASSUMED THAT THE NOTICE SO ISSUED WAS SERVED ON WRO NG PERSON OR WRONG ADDRESS. BESIDES, THERE IS NOT MATERIAL BEFORE US TO ASCERTA IN AS TO ON WHOM THE SAID NOTICE U/S. 148 WAS SERVED. ALL THESE FACTS NEED VERIFICAT ION BEFORE REACHING TO A FINAL CONCLUSION AS TO THE VALIDITY OF ASSESSMENT OR ASSU MPTION OF JURISDICTION BY AO. THE FINDING OF THE LD. CIT(A) THAT THE ASSESSEE COULD N OT FILE ANY EVIDENCE IN SUPPORT OF IMPROVEMENT COST OF PROPERTY BEFORE THE ASSESSING O FFICER CAN ALSO NOT BE SUPPORTED, AS THE ASSESSEE WAS NOT GIVEN PROPER OPP ORTUNITY OF HEARING BEFORE THE ASSESSING OFFICER. IN PRESENCE OF ALL THESE FACTS, WE DEEM IT EXPEDIENT IN THE INTEREST OF JUSTICE THAT THE CASE SHOULD BE REMANDED TO THE FILE OF LD. CIT(A) AFRESH AFTER ISSUING PROPER NOTICE TO THE ASSESSEE AT HER RESIDE NTIAL ADDRESS, AS NOTED ABOVE. THE ITA NO. 425/AGRA/2018 4 ASSESSEE IS ALSO DIRECTED TO PRODUCE ALL THE EVIDEN CES IN HER SUPPORT WITH REGARD TO BOTH ASSUMPTION OF JURISDICTION BY ASSESSING OFFICE R TO REOPEN THE CASE AS WELL AS COST OF IMPROVEMENT, AS STATED IN THE GROUNDS OF AP PEAL, WHICH SHALL BE CONSIDERED AS PER LAW BY THE LD. CIT(A) AS PER LAW. ACCORDINGL Y, THE MATTER DESERVES TO BE ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02/03/2021. SD/- SD/- (DR. MITHA LAL MEENA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: MARCH, 2021 *AKS*