KUMUDINI NARENDRA MISHRA, NAGPUR V. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-4, NAGPUR

ITA 72/NAG/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 7741 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2024
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Next Hearing Date: 27-03-2024
• Assessment Year: 2012-2013
• Appeal Filed On: 19-03-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHAY Y. MARATHE
• Keywords: Sale consideration of property below Jantri Value; Principle of natural justice; Fair market value; Corroborative evidences; Capital Gains
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR “SMC” BENCH : NAGOUR [THROUGH VIRTUAL HEARING AT ITAT : PUNE] BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND Dr. DIPAK P. RIPOTE, ACCOUNTANT MEMBER I.T.A.No.72/NAG./2023 Assessment Year 2012-2013 Smt. Kumudini Narendra Mishra, 1-Karode Bhavan, Medical College Square, Hanuman Nagar, Nagpur. PIN – 440 009. Maharashtra. PAN ABXPM3590R vs. The Asst. Commissioner of Income Tax, Circle-4, Room No.301, 3 rd Floor, Saraf Chambers, Sadar, Nagpur. PIN – 440 001. Maharashtra. (Appellant) (Respondent) For Assessee : Shri Abhay Agrawal, Advocate For Revenue : Shri Abhay Y. Marathe, Sr. DR Date of Hearing : 28.03.2024 Date of Pronouncement : 22.04.2024 ORDER This assessee’s appeal for assessment year 2012-2013 arise against the National Faceless Appeal Centre [in short the “NFAC”] Delhi’s Din and Order No.ITBA/NFAC/S/250/2022- 23/1049064425(1) dated 24.01.2023, involving proceedings u/s.143(3) r.w.s.147 of the Income Tax Act, 1961 (in short “the Act”). Heard both the parties. Case file perused. 2. The assessee pleads the following substantive grounds in the instant appeal : 1. “Whether in the facts and circumstances of the case, the learned AO erred in issuing notice under section 148 of the Act. 2 ITA.No.72/NAG./2023 2. Whether in the facts and circumstances of the case, the learned AO erred in making an addition of Rs.36,07,594 towards long term capital gains in the hands of the assessee and the learned CIT(A) erred in upholding same without appreciating the fact that, property situated in Bhopal was sold by power of attorney holders to third-party on 09/02/2012 and the sale consideration was received by the power of attorney holders and corresponding capital gains were shown in their respective returns of income. 3. Whether in the facts and circumstances of the case, the learned AO erred in not appreciating the fact that, the assessee had sold property situated at Bhopal vide sale agreement entered on 10/02/2011, also handed over the possession on same date and received the consideration of 2.5 lakhs which was duly disclosed in the return of income filed for AY 2011-12. That the transfer of property qua assessee stood completed in the year AY 2011-12. 4. Whether in the facts and circumstances of the case, the learned CIT(A) erred in not considering appellate [CIT(A)] orders passed in the case of co-owners wherein identical addition has been deleted in the case of Mahendra Kumar Mishra and Sanjay Yogendra Mishra for AY 2012-13. 5. Whether on the facts and circumstances of the case, the learned CIT(A) erred in not appreciating the submissions, documents, CIT(A) order in co-owners case which were filed during appellate proceedings. The learned CIT(A) erred in deciding the 3 ITA.No.72/NAG./2023 appeal without providing proper opportunity of being heard thereby, breaching principles of natural justice. 6. Whether in the facts and circumstances of the case, the learned CIT(A) erred in disallowing indexed cost of improvement of Rs.22,53,021 claimed in respect of sale of property situated at Nagpur. 7. The assessee craves leave to add or amend any ground of appeal, if required.” 3. Both the learned representatives first of all invited my attention to the NFAC’s detailed discussion upholding the impugned assessment findings as under : 4 ITA.No.72/NAG./2023 This leaves the assessee aggrieved. 4. Learned counsel is fair enough in not pressing for assessee’s challenge to validity of sec.148 proceedings. Rejected accordingly. 5. Next comes the sole issue on merits regarding long term capital gains addition made in assessee’s hands of Rs.36,07,594/-. Learned counsel vehemently argued that both the lower authorities have erred in law and on facts in assessing the impugned long term capital gains in assessee’s hands despite the fact that he; along with other co-vendors, had already executed the transfer agreement way-back on 10.02.2011 which also indeed delivery of possession. 5 ITA.No.72/NAG./2023 6. The Revenue has drawn strong support from both the learned lower authorities action rejecting the assessee’s arguments as per the NFAC’s detailed discussion. 7. We have given my thoughtful consideration to assessee’s instant first and foremost argument and find no merit therein. It is made clear that the assessee claims to have first executed a general power of attorney on a stamp paper of Rs.100/- on 10.02.2011 which followed the sale deed in issue dated 09.02.2012 in the relevant previous year. There is no material in the case file that the assessee has ever clarified about any such agreement dated 10.02.2011 in the impugned sale deed which could lead to acceptance of his stand. For the reasons best known to him, he has not placed on record the said sale deed even in the instant case file as well. Faced with this situation, we hereby quote the relevant procedure in Chapter-X containing secs.47 to 50, in the Registration Act, 1908 that all registered documents override such oral agreements. The assessee’s substantive ground(s) to this effect stand declined, therefore. 8. Next comes equally important aspect of computation of the impugned long term capital gains u/sec.50C of the Act. A perusal of the assessment order dated 23.12.2019 clarifies that the Assessing Officer had made a reference to the DVO for determining the fair market value and framed the impugned assessment being a “time barred” case despite the fact that no such report came from the DVO’s end. There is no detailed discussion qua this clinching 6 ITA.No.72/NAG./2023 fact even in the NFAC’s lower appellate discussion as well. Faced with this situation, I deem it appropriate to restore the instant latter issue back to the learned Assessing Officer for his afresh appropriate adjudication, preferably within three effective opportunities of hearing to the assessee, in consequential proceedings. Ordered accordingly. 9. Lastly the assessee’s 6 th substantive ground claiming cost of improvement of Rs.22,53,021/- in respect of the relevant capital asset herein. Learned counsel could hardly dispute that not only the assessee could not substantiate her impugned claim all along in the course of assessment as well as before the NFAC but also there is no clarification as to how she alone incurred this much expenditure being a co-sharer. That being the case, we find no merit in the assessee’s instant last substantive ground for want of relevant supporting evidence. Rejected accordingly. 9. This assessee’s appeal is partly allowed for statistical purposes in above terms. Order pronounced in the open Court on 22.04.2024. Sd/- Sd/- [DR. DIPAK P. RIPOTE] [SATBEER SINGH GODARA] ACCOUNTANT MEMBER JUDICIAL MEMBER Pune, Dated 22 nd April, 2024 VBP/- Copy to 1. The appellant 2. The respondent 3. The Pr. CIT, Nagpur concerned 4. D.R. ITAT, “Nagpur-SMC” Bench, Nagpur. 5. Guard File. //By Order// //True Copy // Sr. Private Secretary, ITAT, Pune Benches, Pune.