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Income Tax Appellate Tribunal, DELHI BENCH “F”: NEW DELHI
Before: N.K. BILLAIYA & MS. ASTHA CHANDRA
The appeal filed by the assessee is directed against the order passed by the Ld. Commissioner of Income Tax (Appeals) - Ghaziabad (“CIT(A)”) on 29.03.2019 pertaining to Assessment Year (“AY”) 2010-11.
2. The assessee has taken the following grounds of appeal:-
BECAUSE, 'AO' wrongly considered the amount of cash deposit as income which deposited by the assessee in his bank after sold his ancestral agriculture land.
BECAUSE, assessee sold his two ancestral agriculture land where capital gain dose not arise due to not capital assets but "AO" wrongly considered the amount of ancestral agriculture land sold as income.
Briefly stated, the facts are that the assessee filed his return for AY 2010-11 on 17.05.2010 declaring income of Rs. 1,78,410/- and agricultural income of Rs. 2,50,000/-. Thereafter, on the basis of AIR information that the assessee has deposited cash aggregating to Rs. 89,53,300/- and sold two immovable properties for sale consideration of Rs. 57,00,000/- and Rs. 22,26,570/- aggregating to Rs.79,26,570/- during the previous year relevant to AY 2010-11, notice under section 148 of the Income Tax Act, 1961 (the “Act”) dated 29.03.2017 was issued by the Ld. Assessing Officer (“AO”) after obtaining prior approval of the Pr. Commissioner of Income Tax, Ghaziabad and served upon the assessee. In response to the said notice, the assessee did not file any ITR. Various statutory notices issued by the Ld. AO seeking information/explanation remained uncomplied with. The Ld. AO, therefore proceeded to complete the assessment ex-parte under section 147/144 of the Act.
As to the cash deposit of Rs. 89,53,300/- on different dates in the year, the Ld. AO found that in response to AIR notice dated 19.01.2017, the assessee has stated that he has made cash deposits aggregating to Rs. 89,53,300/- in his savings bank account out of sale of agricultural lands. Rejecting this explanation on finding that sale consideration of land has been deposited through cheque as revealed in his bank statement, the Ld.
Prashant Kumar Singh vs ITO 3 AO treated the impugned cash deposits of Rs. 89,53,300/- as unexplained and added the same to his income.
Regarding sale of two immovable properties, namely land, in response to AIR notice dated 19.1.2017 the assessee stated that he has sold agricultural land which is just four KM from Khurja Nagar Palika and purely cultivated land, therefore, capital does not come out. The Ld. AO rejected this explanation and held that the said land is capital asset under section 2(14) of the Act and long term capital gain is taxable in the hands of the assessee. Accordingly, he calculated long term capital gain arising from the sale of the two properties at Rs. 36,24,512/- + Rs. 12,60,634/- aggregating to Rs. 48,85,146/- which he added to the income of the assessee. The total income was thus computed at Rs. 1,40,16,860/- in the assessment order passed on 22.12.2017 under section 147/144 of the Act.
Aggrieved by the order of the Ld. AO the assessee filed appeal before the Ld. CIT(A). On consideration of the written submission dated 14.03.2019 reproduced by the Ld. CIT(A) in para 4 of his order, the Ld. CIT(A) dismissed the appeal of the assessee observing in para 5.1 of his order as under:-
5.1 Ground nos. 1 and 2: The appellant has challenged the addition of Rs. 89,53,300/- and Rs. 48,85,146/- made by the AO contending that the cash has been deposited out of sale proceeds of agricultural land during the appellate proceedings. No evidence of having received cash as a part of sale consideration has been given. The same fact has been appreciated by the AO in the assessment order and AO pointed out that the sale consideration has been received through cheque only. Thus, appellant failed to substantiate the claim of source of cash deposited by him in the bank account. Thus, there is no aberration in the action of AO in making the above said addition as unexplained investment during the year. Further, AO found that the appellant sold one property individually and other properties jointly with seven other persons which were capital asset within the meaning of provisions of section 2(14}. Accordingly AO computed long term capital gain of Rs. 48,85,146/-. The appellant claimed that the land sold was not a capital asset. However no evidence to substantiate the claim has been furnished by the appellant. During the appellate proceedings no evidence has been given to rebut the finding of the AO. Accordingly, the grounds of appeal taken by the appellant are not found to be maintainable and accordingly dismissed.
Prashant Kumar Singh vs ITO 4 7. Dissatisfied, the assesee is in appeal before the Tribunal and all the grounds of appeal relate thereto.
It has come to the notice of the department that the assessee Shri Prashant Kumar Singh has died on 05.05.2021. This fact of the death of the assessee has been brought to the notice of the Tribunal vide letter F. No. CIT(DR)/ITAT/F Bench/ 2022-23 dated 09.11.2022 of ITO F Bench, ITAT, New Delhi. Accordingly, legal heir(s) of the assessee have to be brought on record.
Hearing by the Tribunal was fixed on 24.08.2022, 14.11.2022 and 31.01.2023 but none attended for and on behalf of the assessee on all the above dates of hearing. However, the Ld. DR was present on all the dates of hearing. It may not be out of place to mention that the notice(s) of hearing sent to the assessee for hearing on the above dates have been returned by the postal authorities with the remark that “the addressee, the recipient of notice has expired.”
On the above facts and in the circumstances of the case, it is not possible for us to proceed in the matter as the appeal of the assessee is defective. We are, therefore, constrained to treat the appeal as not maintainable and dismiss the same as such. However, the assessee is free to remove the defect. Once the defect is removed by the assessee, the Registry shall fix the appeal for hearing and disposal. We order accordingly.
In the result, the appeal of the assessee is treated as dismissed.