THOMAS VARGHESE,TRIVANDRUM V. DEPUTY COMMISSIONER OF INCOME TAX, TRIVANDRUM

ITA 773/COCH/2024

AI Insights

The case involves Thomas Varghese, the appellant, who sold immovable property in the financial year 2009-10, which was chargeable to tax under the head 'Capital Gains' for the Assessment Year 2010-11. The appellant did not initially file a return of income for the said assessment year, leading the Deputy Commissioner of Income Tax (Exemption), Thiruvananthapuram, to issue a notice under section 148 of the Income Tax Act, 1961. In response, the appellant filed a return without declaring the capital gain, resulting in non-compliance with subsequent notices and a resultant assessment order under sections 144 r.w.s. 147 of the Act. The CIT(A) dismissed the appellant's appeal, stating the land sold was not agricultural, thus taxable under capital gains, based solely on the AO's remand report. The Tribunal found this dismissal to be cryptic and not in consideration of the appellant's submissions, leading to the remand of the case.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 23384 (ITAT-COCHIN)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-02-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LEENA LAL
• Keywords: Capital Gains
• Section: 148; 142(1); 143(2); 139(1)

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH BEFORE SHRI INTURI RAMA RAO, AM AND SHRI PRAKASH CHAND YADAV, JM ITA No. 773/Coch/2024 Assessment Year: 2010-11 Thomas Varghese .......... Appellant Manthottathu Bunglow, Hose No. 38 Lane 1, Peroorada, Trivandrum 695005 [PAN: ALTPV0273E] vs. Dy. Commissioner of Income Tax .......... Respondent International Taxation Thiruvananthapuram Appellant by: ------- None ------- Respondent by: Smt. Leena Lal, Sr. D.R. Date of Hearing: 21.01.2025 Date of Pronouncement: 04.02.2025 O R D E R Per: Inturi Rama Rao, AM This appeal filed by the assessee is directed against the order of the Commissioner of Income Tax (Appeals)-12, Bengaluru [CIT(A)], dated 27.06.2024 for Assessment Year (AY) 2010-11. 2. Brief facts of the case are that the assessee sold immovable property in the financial year 2009-10. The consideration received is chargeable to tax under the head ‘Capital Gains’. However, the 2 ITA No. 773/Coch/2024 Thomas Varghese appellant had not filed the return of income for AY 2010-11 under the provisions of section 139(1) of the Income Tax Act, 1961 (the Act). Therefore, the DCIT (Exemption), Thiruvananthapuram (hereinafter called \"the AO\") issued notice u/s. 148 of the Act to the assessee on 29.03.2017 calling upon the appellant to file the return of income for AY 2010-11. In response, the assessee filed the return of income without declaring the capital gain. Therefore, notices under sections 143(2) and 142(1) were issued to the assessee, which were not complied with. Under the circumstance the AO completed the assessment vide order dated 22.12.2017 passed u/s. 144r.w.s. 147 of the Act at a total income of Rs. 25,45,423/-. While doing so, the AO additions under the head ‘income from other sources” and ‘short term capital gain’. 3. Being aggrieved, an appeal was filed before the CIT(A), who vide the impugned order dismissed the appeal stating that the appellant failed to prove the nature of land sold. 4. Being aggrieved, the assessee is in appeal before the Tribunal in the present appeal. When the appeal was called nobody appeared on behalf of the assessee despite due service of notice of hearing. Therefore, we proceeded to dispose of the appeal after hearing the learned Sr. DR. 5. We find that the learned CIT(A) dismissed the appeal by a non speaking order stating that “since the land sold by the assessee is not 3 ITA No. 773/Coch/2024 Thomas Varghese an agricultural land, the capital gains resulting from such sales are taxable”. The CIT(A) passed the cryptic order solely on the basis of the remand report of the AO, without considering the detailed submission filed by the appellant. Under this circumstance, we are of the considered view that the matter requires to be remanded to the file of the CIT(A) with the direction to dispose of the appeal de novo on merits after affording reasonable opportunity of hearing to the assessee. 6. In the result, the appeal filed by the assessee is allowed for statistical purposes Order pronounced in the open court on 4th February, 2025. Sd/- Sd/- (PRAKASH CHAND YADAV) JUDICIAL MEMBER (INTURI RAMA RAO) ACCOUNTANT MEMBER Cochin, Dated: 4th February, 2025 n.p. Copy to: 1. The Appellant 2. The Respondent 3. The Pr. CIT concerned 4. The Sr. DR, ITAT, Cochin 5. Guard File Assistant Registrar ITAT, Cochin "