Satyawati (L/H Of Late Dhan Prakash Tyagi), Ghaziabad V. ITO WARD -1(2), Ghaziabad

ITA 4762/DEL/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6105 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 24-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: HARSH SACHDEVA
• Keywords: Cost of acquisition; Condonation of delay
• Section: 54F; 142(1); 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC : NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.4762/DEL/2019 ASSESSMENT YEAR: 2010-11 SATYAWATI (L/H OF LATE DHAN PRAKASH TYAGI), VILL. MAKAN PUR, INDIRAPURAM, GHAZIABAD (UP). PAN: AEEPT6151K VS. ITO, WARD-1(2), GHAZIABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI HARSH SACHDEVA, CA REVENUE BY : SHRI S.L. ANURAGI, SR.DR DATE OF HEARING : 05.08.2019 DATE OF PRONOUNCEMENT : 05.08.2019 ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 26.11.2018 OF THE CIT(A), GHAZIABAD, RELATING TO ASSESSMENT YEAR 2010 -11. 2. THERE IS A DELAY IN FILING THIS APPEAL BY THE AS SESSEE FOR WHICH THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY STATI NG THEREIN THAT THE ORIGINAL ORDER WAS NOT RECEIVED BY THE ASSESSEE FROM THE DEPARTMENT FO R WHICH THE ASSESSEE APPLIED FOR CERTIFIED COPY WHICH WAS PROVIDED TO THE ASSESSEE O N 10 TH MAY, 2019. THEREAFTER, THE COUNSEL TOOK ABOUT TEN DAYS FOR PREPARATION OF THE APPEAL. THE LD. COUNSEL FOR THE ASSESSEE ACCORDINGLY SUBMITTED THAT THE DELAY IN FI LING OF THE APPEAL SHOULD BE ITA NO.4762/DEL/2019 2 CONDONED. AFTER HEARING BOTH THE SIDES THE DELAY I N FILING OF THE APPEAL BY THE ASSESSEE IS CONDONED. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND NO RETURN OF INCOME WAS FILED BY THE ASSESSEE. THE CASE OF THE ASSESSEE WAS REOPENED U/S 147 FOR THE REASON THAT CAPITAL GAINS ARISEN ON SALE OF IMM OVEABLE PROPERTY FOR RS.5,82,32,000/- BY THE ASSESSEE AND OTHER CO-OWNER S DURING THE F.Y. 2009-10 CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. ACCORDIN GLY NOTICE U/S 148 WAS ISSUED. SINCE THERE WAS NO COMPLIANCE FROM THE SIDE OF THE ASSESSEE, NOTICE U/S 142(1) WAS ISSUED. HOWEVER, AGAIN, THERE WAS NO COMPLIANCE FO R WHICH FRESH NOTICES WERE ISSUED. SUBSEQUENTLY, THE ADVOCATE OF THE ASSESSEE APPEARED AND FILED CERTAIN DETAILS WHICH WERE NOT SUFFICIENT ACCORDING TO THE ASSESSING OFFI CER, FOR DETERMINING THE CORRECT CAPITAL GAIN. HE, THEREFORE, PROCEEDED TO COMPLETE THE ASSESSMENT U/S 147 READ WITH SECTION 144 OF THE IT ACT AND DETERMINED THE LONG-T ERM CAPITAL GAIN IN THE HANDS OF THE ASSESSEE AT RS.68,32,735/-. SINCE THERE WAS NON-CO MPLIANCE BEFORE THE CIT(A), THE LD.CIT(A) IN THE EX PARTE ORDER PASSED BY HER, DISMISSED THE APPEAL FILED BY THE ASSESSEE. 4. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASS ESSEE IS IN APPEAL BEFORE THE TRIBUNAL RAISING THE FOLLOWING GROUNDS:- 1. THAT ORDER OF A.O WAS WRONG, ILLEGAL AND CONTRA RY TO THE FACTS OF THE CASE. 2. THE ASSESSMENT ORDER DATED 22-12-2017 PASSED U/S 14 7/144 OF THE I. T ACT 1961 BY THE LD. ASSESSING OFFICE IS BAD IN LAW AND HAS BEEN PASSED WITHOUT CONSIDERATION OF THE FACTS OF THE CASE, HENCE IS UN SUSTAINABLE. 3. THAT APPELLANT ALONG WITH THREE MORE CO-OWNERS H AS SOLD AN AGRICULTURAL ITA NO.4762/DEL/2019 3 LAND SITUATED AT KHASRA NO-2386, VILLAGE MAKANPUR, INDRAPURAM, GHAZIABAD ON 23- 12-2009 FOR CONSIDERATION OF RS 58231250 /- IN WHIC H APPELLANTS SHARE COMES TO RS 14558000/- (L/4 TH SHARE). 4. WITHOUT PREJUDICE TO THE ABOVE AND IN ALTERNATIVE, ON MERITS THE ADDITION OF RS.6832735/- MADE TOWARDS INCOME UNDER THE HEAD LTC G IS WHOLLY ILLEGAL AGAINST THE FACTS OF THE CASE AS THE LD. A.O HAS ERRED IN C ALCULATION OF INDEXED COST OF ACQUISITION BY CONSIDERING CIRCLE RATE OF THE PROPE RTY @ RS 50 PER S.M WHEREAS IN ACTUAL MARKET VALUE OF THE SAID PROPERTY AT THAT TI ME WAS AROUND RS 500 PER S.M. 5. ALSO APPELLANT HAS INVESTED RS.13159700/- IN CONST RUCTION OF RESIDENTIAL PROPERTY AND IS ENTITLED FOR DEDUCTION U/S 54F. BUT LD A.O HAS NOT CONSIDERED THE SAME AND ALLOWED DEDUCTION U/S 54F OF RS 7585435 /- ONLY WHICH IS WRONG AND BAD IN LAW. 6. THE AFORESAID ADDITION HAS BEEN MADE ONLY ON THE B ASIS OF ASSUMPTIONS, SURMISES, CONJUNCTURES, WITHOUT ANY ENQUIRY OR FIND INGS IS UNLAWFUL AND UNJUSTIFIED. 5. I HAVE HEARD THE RIVAL ARGUMENTS MADE BY BOTH TH E SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS AN ADMITTED FA CT THAT THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS HAS FILED ONLY NEGLIGIBLE DE TAILS AND, THEREFORE, THE ASSESSING OFFICER WAS CONSTRAINED TO COMPLETE THE ASSESSMENT U/S 147/144 OF THE IT ACT. SINCE THERE WAS NO COMPLIANCE FROM THE SIDE OF THE ASSESS EE BEFORE THE CIT(A), THE LD.CIT(A), IN THE EX PARTE ORDER PASSED BY HER, HAS UPHELD THE ACTION OF THE ASSESSING OFFICER. IT IS THE SUBMISSION OF THE LD. COUNSEL F OR THE ASSESSEE THAT IN THE INTEREST OF JUSTICE, THE ASSESSEE SHOULD BE GIVEN AN OPPORTUNIT Y OF BEING HEARD TO SUBSTANTIATE HER CASE. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE, I DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE CIT(A) WITH A DIRECTION TO GRANT ONE FINAL OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIA TE HER CASE AND DECIDE THE ISSUE AS PER FACT AND LAW. THE ASSESSEE IS ALSO HEREBY DIRE CTED TO APPEAR BEFORE THE CIT(A) WITHOUT SEEKING ANY ADJOURNMENT UNDER ANY PRETEXT A ND COOPERATE IN EARLY DISPOSAL OF ITA NO.4762/DEL/2019 4 THE APPEAL FAILING WHICH THE LD.CIT(A) IS AT LIBERT Y TO PASS APPROPRIATE ORDER AS PER LAW. I HOLD AND DIRECT ACCORDINGLY. THE GROUNDS R AISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL FILED BY THE ASS ESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 0 5.08.2019. SD/- ( R.K. PANDA) ACCOUNTANT MEMFBE R DATED: 05 TH AUGUST, 2019 DK COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI