SARASWATI DEVI,AROGYA NAGAR V. INCOME TAX OFFICER, CAD CIRCLE KOTA

ITA 1436/JPR/2024

AI Insights

The case involves Smt. Saraswati Devi, a housewife, who appealed against the order of the CIT(A) for the assessment year 2012-13. The AO had made additions to her income, including disallowing construction costs and adding a difference in stamp duty value as income. The CIT(A) upheld these additions, citing the absence of documentary evidence from the assessee. The ITAT noted the assessee's lack of representation and opportunity to present her case at earlier stages due to her family circumstances and the police custody of male members. The ITAT decided to restore the matter to the AO for a fresh assessment, providing the assessee an opportunity to submit necessary documents and arguments.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 314526 (ITAT-JAIPUR)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: HARSHITA CHAUHAN
• Assessee Lawyers: SWAPNIL AGARWAL
• Keywords: Opportunity of being heard; Sale consideration of property below Jantri Value; Cost of acquisition; Bogus
• Section: 148; 142(1); 50C

Judgement Text

"vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA. No.1436/JPR/2024 fu/kZkj.k o\"kZ@Assessment Years : 2012-13 Smt. Saraswati Devi H.No. 10, Arogya Nagar, Rangbari, Kota – 324 009 cuke Vs. Income Tax Officer, Ward -2(4), Kota LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AEXPB 6517 J vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Swapnil Agarwal, CA jktLo dh vksj ls@ Revenue by : Ms. Harshita Chauhan, JCIT-DR lquokbZ dh rkjh[k@ Date of Hearing : 28/04/2025 mn?kks\"k.kk dh rkjh[k@Date of Pronouncement : 05/05/2025 vkns'k@ ORDER PER: DR. S. SEETHALAKSHMI, J.M. This appeal filed by the assessee is directed against the order of the ld. CIT(A) dated 24-04-2024, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment year 2012-13 raising therein following grounds of appeal. ‘’Assessee was an housewife declaring a capital income of Rs.1,86,267/- . The case was selected and AO made addition of Rs.5,72,500/- by disallowing construction cost of shop for Rs.1,72,500/-. Affidavit from Contractor Shri Om Prakash S/o Shri Radhey Shyam, Baran already submitted again enclosed. Addition of Rs.4,00,000/- for difference in stamp duty value 2 ITA NO. 1436/JPR/ 2024 SMT. SARASWATI DEVI VS ITO, WARD 2(4), KOTA adopted by AO is wrong and bad in law. As DLC of same property sold by assessee in share having more construction area and floor is lower than said property.’’ 2.1 At the outset of hearing of the appeal, the Bench noticed that there is delay of 151 days in filing the appeal by the assessee for which the ld.AR of the assessee filed an application for condonationof delay with the submission that there is no one in the family to check the order on Income Tax Portal and provide copy of order manually and further submitted that male members in the family are under police custody and such order could not be communicated to the assessee. To this effect, the assessee filed an affidavit deposing that due to such critical problem she either could not pursue or obtain the copy of ld.CIT(A)’s order and thus the ld. AR submitted to condone the delay in late filing the appel. 2.2 On the other hand, the ld. DR submitted that there is an inordinate delay in filing the appeal by the assessee, however, the court may decide the issue as deemed fit and proper in the case. 2.3 After hearing both the parties and perusing the materials available on record, the Bench feels that there is merit in the prayer of the assessee and she is prevented by sufficient cause as her male family members were in police custody. Hence, in this view of the matter, the delay is condoned and appeal is admitted. 3 ITA NO. 1436/JPR/ 2024 SMT. SARASWATI DEVI VS ITO, WARD 2(4), KOTA 3.1 Apropos grounds of appeal of the assessee, it is noticed that the ld. CIT(A) has passed an ex-parte order holding that the assessee had not submitted any written submission in spite of various notices to counter the assessment order and thus he did not find any infirmity in the order of the AO and dismissed the appeal of the assessee. The narration as made by the ld. CIT(A) in his order is reproduced as under:- ‘’5. In Ground No.1, the appellant has objected to addition made by the AO of Rs.5,72,500/-, (being 1,72,500/- on account of bogus expenses claimed in Short Term Capital Gain and Rs. 4,00,000/- u/s.50C of the Act.) 5.1 Decision: I have carefully considered the relevant and material facts on record, in respect of this ground of appeal as brought out in the assessment order. As regards the addition of Rs.1,72,500/-, AO observed that appellant had claimed deduction of construction cost of Rs. 1.72.500/-alongwith cost of acquisition of shop of Rs.6.61.980/- situated at Arya Samaj Road, Rampura, Kota. In the absence of documentary evidence in support of construction expenses of Rs. 1,72,500/-, the same was treated as bogus and added to the total income of the appellant. As regards the addition of Rs.4,00,000/-, AO observed that appellant had sold an immovable property situated at House No.3-L-3. Talwandi, Kota on 22.07.2011 for a sale consideration of Rs.35,00,000/- the appellant's share being 1/5th which comes to Rs.7,00,000/-. However, the stamp value of the property was Rs. 55,00,000/- As per section 50C of the 1.T.Act, 1961, the value so assessed or adopted by the registering authority for stamp duty purpose was to be treated as full value of consideration received as a result of such transfer. Therefore, as per provisions of section 50C of the 1.T.Act, Rs.55,00,000/- was to be treated as full value of the 4 ITA NO. 1436/JPR/ 2024 SMT. SARASWATI DEVI VS ITO, WARD 2(4), KOTA consideration for the purpose of calculation of capital gain. On perusal of computation of income, AO noticed that the appellant had taken sale consideration of Rs.7,00,000/- (35,00,000/5) in place of Rs.11,00,000 (55,00,000/5), the value adopted by the registering authority for stamp duty purpose. Thus, the difference of sale consideration of Rs.4,00,000/-(11,00,000-7,00,000) was added back to the total income of the appellant. 6.2.1 It is further noted and as detailed in preceding para above that during the appellate proceedings, the appellant has not furnished any evidence in support of its grounds of appeal. The appellant has challenged the addition in the ground of appeal. However, the appellant has not furnished any written submission or documentary evidence in support of its grounds of appeal challenging the addition. The A.O. has made total addition of Rs.5,72,500/- The first addition of Rs.4,00,000/- was on account of difference between the sale consideration taken by the appellant (Rs.7,00,000) and the value adopted by the registering authority for stamp duty purpose (Rs. 11,00,000) and the above addition is made by considering the provisions of Section 50C. The onus lies on the appellant to support any claim by bringing in cogent documentary evidence but the appellant has not even filed a written submission in support of its grounds of appeal despite several opportunities given as details in the preceding paras. In view of the above, I find that the action of the AO is as per the provisions of the Act and there is no reason to interfere with the Assessment Order on the above issue and addition of Rs. 4,00,000/- is confirmed on merits. 6.2.2. The second addition of Rs. 1,72,500/- was on account of non furnishing of documentary evidence in respect of construction cost claimed alongwith cost of acquisition of shop situated at Arya Samaj Road, Kota for the computation of Capital Gain. In absence of any written submission or documentary evidence in support of its grounds of appeal, I have no basis to take a contrary view in the appellate proceedings as I have no reason to interfere with the assessment order 5 ITA NO. 1436/JPR/ 2024 SMT. SARASWATI DEVI VS ITO, WARD 2(4), KOTA As such, I do not find any infirmity in the order of Assessing Officer. Therefore, Addition of 1,72,500/- is hereby sustained on merits. 7. In the result, the appeal is dismissed.’’ 3.2 During the course of hearing, the ld. AR of the assessee has filed the submissions as well as documents to counter the order of the ld.CIT(A) whose details are as under:- S.N. Particulars 1. Written submission 2. Certificate from contractor for construction of shop 3. Copy of sale deed of both houses 4. Copy of purchase deed of both house 5 Copy of certificate from Contractor to carry out construction work The ld.AR of the assessee submitted that the addition confirmed by the ld. CIT(A) is not justified which should be deleted. 3.3 On the other hand, the ld.DR supported the order of the ld. CIT(A). 3.4 We have heard both the parties and perused the materials available on record. Brief facts of the case are that the assessee had not filed her return of income for the year under consideration. The assessee’s case was reopened and notice u/s 148 dated 25-03-2019 was issued and served on the assessee. The assessee had not filed her return of income in response to notice u/s 148. Thereafter 6 ITA NO. 1436/JPR/ 2024 SMT. SARASWATI DEVI VS ITO, WARD 2(4), KOTA notice u/s 142(1) alongwith questionnaire was issued and duly served on the assessee. Subsequently, the assessment was finalized on 18-12-2019 assessing the total income at Rs.7,58,767/- after making an addition of Rs.1,72,500/- on account of bogus expenses claimed in short term capital gain and Rs.4,00,000/- u/s 50C of the Act. Thus the AO made total addition of Rs.5,72,000/- in the hands of the assessee which has been confirmed by the ld. CIT(A) as the assessee did not submit any contrary documents before him countering the assessment order. From the entire conspectus of the records, it is noticed that the assessee was ex-parte before the AO and also before the ld. CIT(A). Therefore, she could not put forth her defence It was the bounded duty of the assessee to appear before the statutory authorities as and when called for. It is noticed that various opportunities were provided to the assessee for settling the issue but the assessee remained lethargic and unserious in pursuing her case However, we are of the view that lis between the parties has to be decided on merits so that nobody’s rights could be scuttled down without providing opportunity of being heard to the assessee. Hence, the matter is restored to the file of the AO to decide it afresh by providing one more opportunity of hearing and the assessee is directed to submit all the docuements concerning the issue in question in question, however, the assessee will not seek 7 ITA NO. 1436/JPR/ 2024 SMT. SARASWATI DEVI VS ITO, WARD 2(4), KOTA any adjournment on frivolous ground and remain cooperative during the course of proceedings. Thus the appeal of the assessee is allowed for statistical purposes. 2.6 Before parting, we may make it clear that our decision to restore the matter back to the file of the AO shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by AO independently in accordance with law. 3.0 In the result, the appeal of the assesee is allowed for statistical purposes Order pronounced in the open court on 05 /05/2024. Sd/- Sd/- ¼ jkBkSM+ deys'k t;UrHkkbZ ½ ¼MkWa-,l-lhrky{eh½ (RATHOD KAMLESH JAYANTBHAI) (Dr. S. Seethalakshmi) ys[kk lnL; @Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 05/05/2025 *Mishra vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1vihykFkhZ@The Appellant- Smt. Saraswati Devi, Kota 2izR;FkhZ@ The Respondent- ITO, Ward-4(2), Kota. 3vk;dj vk;qDr@ CIT 4. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur. 5. xkMZ QkbZy@ Guard File { ITA No. 1136/JPR/2024} vkns'kkuqlkj@ By order lgk;d iathdkj@Asst. Registrar "