LAKSHMI CHAND,FARIDABAD vs. ITO, WARD-1(5), FARIDABAD

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ITA 4378/DEL/2017Status: DisposedITAT Delhi05 January 2023AY 2008-099 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal restored the issue back to the file of the Assessing Officer (AO) for fresh adjudication. The Tribunal acknowledged that the AO's order was an ex-parte order passed under Section 144. It emphasized the established principle of natural justice that a litigant should be heard before a decision is taken and that the AO must confront the assessee with any material obtained from third parties or own sources. The Tribunal noted that identical issues arising from similar facts in the cases of other family members of the assessee were restored to the AO by a Coordinate Bench of the Tribunal. Since the Revenue's DR did not point out any distinguishing features in the assessee's case compared to those of his family members, the Tribunal followed the decisions of the coordinate benches. The assessee was directed to promptly furnish all required details to the AO, and the AO was directed to grant an adequate opportunity of hearing. The Tribunal allowed this ground of the assessee. Consequently, other grounds raised by the assessee were not adjudicated at that moment, as the issue was restored to the AO. The appeal was allowed for statistical purposes.

What were the facts?

The assessee, an individual, is challenging an order dated February 17, 2017, passed by the CIT(A), Faridabad, for Assessment Year 2008-09. The Assessing Officer (AO) noted that the assessee received Rs. 2,18,17,708/- as sale consideration from M/s Green Valley Housing & Land Development Pvt. Ltd. on June 7, 2007, for the sale of land within Faridabad Municipal limits. The AO considered this a capital asset chargeable to tax under Section 45(5). As the assessee did not file a return declaring this income, the AO issued notices under Section 148, 142(1), and 143(2). Receiving no response, the AO framed an ex-parte assessment under Section 144 on October 29, 2010, determining the total income at Rs. 2,13,17,708/-. The CIT(A) dismissed the assessee's appeal.

What were the issues?

1. Whether the assessee, an individual and allegedly a small farmer, should be granted an opportunity to explain the case and submit necessary documents to the AO, given the claim of reliance on a Chartered Accountant who allegedly failed to perform professional duties. 2. Whether the CIT(A) erred in confirming the AO's order treating the entire sale consideration of agricultural land and an old house on agricultural land (Rs. 2,13,17,710/-) as taxable capital gains, without considering reinvestment in agricultural land and residential property or allowing exemptions. 3. Whether the CIT(A) erred in confirming the AO's estimation of indexed cost at Rs. 5,00,000/-, stating "subject to change," and not considering the market value as of April 1, 1981, for the agricultural land and old house. 4. Whether the CIT(A) and AO erred in calculating the correct taxable income and indexed cost of the agricultural land and old house inherited from parents. 5. Whether the CIT(A) erred in confirming the AO's order by not considering allowable deductions/exemptions under the head Capital Gain. 6. Whether the CIT(A) erred in confirming the AO's order under Section 144 without serving a mandatory notice. 7. Whether the CIT(A) erred in confirming the AO's order under Section 144 by serving a notice under Section 142(1) dated March 16, 2009. 8. Whether the CIT(A) erred in confirming the AO's order without following the provisions of Section 147 and 148, as the assessee claims not to have received any notice under Section 148. 9. Whether the CIT(A) failed to comply with the provisions of Section 250(6) by not passing a speaking order. 10. Whether the CIT(A) failed to afford proper opportunity to the assessee, passing an arbitrary order against principles of natural justice in a hurry. Assessee's Contentions: The assessee argued that they are a small farmer who relied on their Chartered Accountant, who allegedly failed to submit the return and information during assessment and appeal. They sought an opportunity to explain the case and submit documents. The assessee also contended that identical issues from the sale of the same land in cases of other family members (Sh. Karan Singh, Shri Ram Swaroop, Shri Bir Singh) were restored to the AO by a coordinate bench of the Tribunal in Karan Singh vs. ITO (ITA 4376/Del/2017, dated 28.02.2022), and therefore, the assessee's case should also be restored to the AO. Revenue's Contentions: The Revenue's Senior DR did not controvert the factual submissions made by the assessee's AR but objected to the assessee seeking a "second innings."

Which sections of the Income-tax Act were involved?

Section 45(5),Section 144,Section 148,Section 142(1),Section 143(2),Section 147,Section 250(6)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, DELHI BENCHES “E”: DELHI

Before: SHRI ANIL CHATURVEDI & SHRI NARENDER KUMAR CHOUDHRY

Date of Hearing : 13.12.2022 Date of Pronouncement : 05.01.2023 ORDER PER ANIL CHATURVEDI, A.M. : This appeal filed by the assessee is directed against the Order of the Ld. CIT(A), Faridabd, dated 17.02.2017 in Appeal No.137/2015-16 relating to the A.Y. 2008-09.

2.

The relevant facts as culled from the material on records are as under :

2.1. Assessee is an individual. A.O. has noted that information was received from Sub Registrar, Ballabgrah, Faridabad that assessee and others have received of Rs. 15,26,50,000/- on 07.06.2007 as sale consideration from M/s Green Valley Housing & Land Development Pvt. Ltd. on sale of land. He has further noted that out of total sale consideration, assessee’s share was of Rs. 2,18,17,708/-. According to A.O., since the land in question was within the Municipal limits of Faridabad, it was a capital asset within the meaning of section 2(14) and chargeable to tax u/s.45(5) of the Act. It was noted by the A.O. that the assessee has not filed his return of income declaring the aforesaid sale consideration. A.O. therefore issued notices u/s. 148 dated 15.03.2010 to the assessee. A.O. has noted that no return of income was filed by the assessee. Thereafter notices u/s. 142(1) and 143(2) were issued and served but there was no response from the assessee. A.O. thereafter framed assessment u/s. 144 vide order dated 29.10.2010 and determined the total income at Rs. 2,13,17,708/-.

2.2. Aggrieved by the order of the A.O, the assessee carried the matter in appeal before the Ld. CIT(A) who vide order dated 17.02.2017 dismissed the appeal of the assessee.

3.

Aggrieved by the order of the Ld. CIT(A), the assessee now is in appeal and has raised the following grounds:-

1. That the appellant is a small farmer owning small agricultural land who does not know Income Tax Law and blindly trusted on Chartered Accountant Mr. Shyam Sunder Mangla, M/s Shyam Sunder Mangla & Co, having office at Sco- 201 shopping center sector - 8 Faridabad (India) -121006. The appellant has given all the necessary documents & information to CA Mr. Manga who has not submitted return of income, all the information & documents during the assessment & Appeal proceedings as per the Income Tax Law and did not performed his professional duties and did not give proper advice to appellant. In view of these facts, kindly allow an opportunity to the appellant to explain the case and to submit all the necessary information & documents to the Ed. Assessing Officer.

2. That the Ld. Commissioner of Income Tax (Appeals) is not right in conforming the impugned order framed by the Assessing Officer in treating the whole sales consideration of Agriculture Land and old house on agricultural land amounted to Rs.2,13,17,710/- on estimated basis as taxable income from capital gain where as the appellant has reinvested the sales proceeds in Agriculture Land & Construction of Residential property and no exemption is allowed to the appellant.

3. That the Ld. Commissioner of Income Tax (Appeals) is not right in confirming the impugned order framed by assessing officer in treating the indexed cost Rs.5,00,000/- on estimated basis by stating "subject to change" and not considered market value as on 01-04- 1981 of agricultural land & old house.

4. That the Ld. Commissioner of Income Tax (Appeals) and the Ld. Assessing Officer have erred in calculating correct taxable income and correct indexed cost of agricultural land and old house inherited from parents.

5. That the Ld. Commissioner of Income Tax (Appeals) is not right in conforming the impugned order framed by the Assessing Officer who has not considered the deductions/ exemptions allowable under the head Capital gain.

6. That having regards to the facts and circumstances of the case, the learned commissioner of Income Tax (Appeals) is not right in confirming the impugned order framed by the Assessing Officer under Section 144 without serving mandatory notice.

7. That having regards to the facts and circumstances of the case, the learned commissioner of Income Tax (Appeals) is not right in confirming the impugned order framed by the Assessing Officer under Section 144 in serving the notice U/s.142(1) dated 16/03/2009.

8. That having regards to the facts and circumstances of the case, the learned commissioner of Income Tax (Appeals) is not right in confirming the impugned order framed by the Assessing Officer without following the provisions us.147 and 148. The appellant has not received any notice us.148 of Income Tax Act.

9.

That having regards to the facts and circumstances of the case, the learned commissioner of Income Tax (Appeals) has not complied the provision of section 250(6) to pass a speaking order.

10.

That the learned commissioner of Income Tax (Appeals) has not afforded proper opportunity to the appellant to explain the matter and whole order is arbitrary and against the principles of natural justice and passed the order in a hurry. 11. That the order passed by Learned CIT(A) is bad in law and against the facts & circumstances of the case. 12. That the appellant craves leave to add, modify, amend or delete any of the grounds of appeal

at the time of hearing and all the above grounds are without prejudice to each other.

4. Before us, Ld.AR pointed to ground no. 1 and submitted that assessee had submitted all the necessary documents and information to CA Shri Shyam Sunder Mangla, for submission before authorities but the C.A did not perform his duties nor gave proper advice to the assessee. He therefore submitted that one more opportunity be granted to the assessee to explain the case and the assessee would submit all the required details called for by the A.O. He further submitted that identical issue arising out of sale of same land arose in the case of other family members, Sh. Karan Singh, Shri Ram Swaroop, Shri Bir Singh etc. and on identical facts the coordinate bench of Tribunal has restored the issue back to the file of A.O. for the deciding the issue afresh. He pointed to the recent order passed by the Tribunal in the case of Karan Singh vs. ITO in ITA 4376/Del/2017 order dated 28.02.2022 the copy of which is placed at page no 46 to 51 of the paper book and pointed to the relevant findings of the Tribunal. He therefore submitted that since the facts of the assessee are identical to the facts of other family members, the matter in assessee’s case may also be restored back to A.O.

5.

Ld. DR on the other hand did not controvert the factual submissions made by Ld.AR but however objected to the seeking of second innings by Ld.AR.

6.

We have heard the rival submissions and perused the materials available on record. Before us, assessee is seeking one more opportunity to present his case before the lower authorities. It is an undisputed fact that order by the AO was an ex parte order passed u/s 144 of the Act. It is an established principle of natural justice that a litigant should be heard before a decision is taken and before any addition is made by the AO on information obtained from third parties/own source and the AO must confront the assessee with the material so obtained. We further find that identical issue arising out of similar facts arose in the case of the other family members of the assessee. In those cases, the Co-ordinate Bench of the Tribunal had restored the matter back to the AO for fresh adjudication. Before us, Ld. DR has not pointed to any distinguishing feature in the facts of the case of the assessee and that of his other family members which has been decided by the co-ordinate benches of the Tribunal. We therefore following decisions of the co-ordinate bench of Tribunal restore the issue back to the file of A.O. and direct to him decide the issue afresh after considering the submissions of the assessee. Assessee is also directed to promptly to furnish all the required details called by the AO. Needless to state that AO shall grant adequate opportunity of hearing to the assessee. Thus this ground of assessee is allowed.

7.

Since we have restored the issue back to the file of the A.O. We are of the view that the other grounds raised by the assessee requires no adjudication at the moment and therefore not adjudicated.

8.

In the result, appeal of the assessee is allowed for statistical purposes.

Order pronounced in the open Court on 05.01.2023.

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