SMT. INDIRA YADAV,JHANSI vs. ITO.,-2(3)(4), LALITPUR

ORDER Per Laliet Kumar, J.M.: This appeal is directed by assessee against the order of ld. CIT(A)-2, Agra dated 19.03.2018 for assessment year 2011-12, on the following grounds :

“1. That the C.l.T. (A) has erred on facts and in law to hold that the notice u/s 148 claimed to have been issued at the address "Majra Bandeshra, P.O. - Khandi Talbehat, Lalitpur was served on the appellant when appellant was residing at the address 188, K.K. Puri. Avas Vikas Colony, Jhansi at which address the order has been passed.

2. That in absence of service of notice u/s 148 dated 09.03.2015, jurisdiction assumed to complete the assessment is illegal and assessment framed is ab-initio void.

4. That the addition for long-term capital gain sustained at Rs. 1424488/- is illegal without determining the fair market value as per ratio laid down by the Honble Courts.

5. That the C.l.T. (A) has erred on facts and in law to allow benefit of improvement cost of plot of land made at Rs. 200000A in assessment year 1982-83 and further Rs. 300000/- made in assessment year 1990-91 for earth filling and stone removing. 6. That the C.l.T. (A) has failed to consider the comparable cases where the land situated in the same vicinity has fetched the lower share market value and the comparable cases, submitted report the C.I.T. (A) has been ignored which is against the principle of natural justice and the capital gain assessed at Rs. 1424488/- is excessive and arbitrary.”

3. None is present on behalf of the assessee. The ld. DR supported the order of the ld. CIT(A) and submitted that the assessee has not been able to adduce any material or evidence on record to support the grounds raised in this appeal and to discard the finding of facts and law recorded by the ld. CIT(A).

First the notice u/s. 148 was issued on wrong address at Majra Bandeshra, PO Khandi Talbehat, Lalitpur, whereas the assessee was residing at 188, KK Puri, Avas Vikas Colony, Jhansi and hence, no proper service of notice was made before passing the impugned assessment order. Second, while calculating the capital gains, the ld. authorities below have failed to give credit of improvement cost of property incurred by the assessee. It is not in dispute that the assessment order was passed exparte in absence of the assessee. A perusal of assessment order shows that it mentions both the addresses of assessee, which includes her residential address too, meaning thereby the Assessing Officer was acknowledged with the residential address of the assessee before passing the assessment order under consideration, whereas the notice was not sent to such address of the assessee. However, since there is none on behalf of the assessee before us to explain whether the address on which the notice was sent to the assessee was not her address, it can hardly be assumed that the notice so issued was served on wrong person or wrong address.

Besides, there is not material before us to ascertain as to on whom the said notice u/s. 148 was served. All these facts need verification before reaching to a final conclusion as to the validity of assessment or assumption of jurisdiction by AO. The finding of the ld. CIT(A) that the assessee could not file any evidence in support of improvement cost of property before the Assessing Officer can also not be supported, as the assessee was not given proper opportunity of hearing before the Assessing Officer. In presence of all these facts, We deem it expedient in the interest of justice that the case should be remanded to the file of ld. CIT(A) afresh after issuing proper notice to the assessee at her residential address, as noted above. The assessee is also directed to produce all the evidences in her support with regard to both assumption of jurisdiction by Assessing Officer to reopen the case as well as cost of improvement, as stated in the grounds of appeal, which shall be considered as per law by the ld. CIT(A) as per law. Accordingly, the matter deserves to be allowed for statistical purposes.

Order pronounced in the open court on 02/03/2021.