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Income Tax Appellate Tribunal, PATNA BENCH AT KOLKATA
Before: SRI RAJESH KUMAR & PRADIP KUMAR CHOUBEY
order
: September 25th, 2024 ORDER
Per Pradip Kumar Choubey, Judicial Member:
The instant appeal filed by the assessee pertaining to the Assessment Year (in short ‘AY’) 2011-12 is directed against the order passed u/s 250 of the Income Tax Act, 1961 (in short the ‘Act’) by ld. Commissioner of Income- tax (Appeal)-NFAC, Delhi [in short ld. ‘CIT(A)’] dated 17.07.2023 arising out of the assessment order framed u/s 144 read with Section 147 of the Act dated 26.12.2018.
I.T.A. No.: 271/PAT/2023 Assessment Year: 2011-12 Shivam Anand. 1.1. The brief facts of the case of the appellant are that the assessee Sh. Shivam Anand had entered into and registered a land development agreement with M/s. Vishal Fabicon Pvt. Ltd. in the financial year 2010-11. The Assessing Officer (hereinafter referred to as ld. 'AO') on receipt of information u/s 133(6) of the Act found that assessee and the developer had agreed to the development arrangement where full share of 50% of the total land area of 2041.5 Sq.Ft. owned by the assessee will be constructed upon by the land developer. It is further alleged in the assessment order that in terms of the land development agreement the share of constructed building to be owned by the assessee is 2041.5 Sq.Ft. encompassing total floor area of 4083 Sq.Ft. It is further alleged that as per land development agreement registered the total value of land is Rs. 5,51,000/- and the value of share owned by the assessee at full of 50% of land owned by the assessee stands at Rs. 2,75,500/- The ld. AO considering the fact of the information opined that case of the assessee attracted the provisions of Section 53A of the Transfer of the Property Act, the capital gains arising out of such transfer attracted provisions of Sections 2(47)(v), 45 & 48 of the Act. Since assessee has not filed any return of income nor made any compliance after making several references, a notice u/s 148 of the Act was issued on 28.03.2018 after recording the reasons to believe on the escapement of the income and after obtaining the required approval from the PCIT. There is no compliance by the assessee before the ld. AO to the notice u/s 148 of the Act. Considering the factual position of the assessee as received by the AO, comes to the conclusion and for the purpose of ascertaining the full value of consideration to be taxed as the capital gain in the hands of the assessee under the provisions of Section 48 of the Act held that the balance tax payable against the assessee is at Rs. 8,49,509/-. A penalty proceeding u/s 271(1)(c) of the Act has also been initiated. The said order has been challenged by the assessee before the ld. CIT(A) wherein appeal of the assessee has been dismissed as there is no compliance on behalf of the assessee with regard to his appeal before the ld. CIT(A).
Page 2 of 4 I.T.A. No.: 271/PAT/2023 Assessment Year: 2011-12 Shivam Anand. Being aggrieved and dissatisfied with the impugned order, the present appeal has been preferred.
Ld. Counsel for the assessee challenges the impugned order of the ld. CIT(A) as well as the AO thereby submitting that the ld. CIT(A) has erred in the facts and circumstances of the case in confirming the suspicious action of the ld. AO in determining the long-term capital gain of Rs. 20,41,500/- on the basis of the development agreement as stated by the appellant is wrong, illegal and unjustified. Ld. Counsel for the assessee further submits that he has not been given proper opportunity of being heard by the ld. AO as well as ld. CIT(A). His submission is that assessee should be given an opportunity to file all the details before the ld. AO as the order has been passed by the AO behind his back. 2.1. The ld. D/R supports the impugned order.
On perusal of the order of the AO, it appears to us that the ld. AO has passed assessment order on receipt of the information u/s 133(6) of the Act. It is also not in dispute that assessee did not appear before the AO nor he submit his full explanation before ld. CIT(A). It is apparent in the order of the ld. CIT(A) that the appellant continues to be non-responsible and order passed behind the back of the appellant due to his non-appearance before the both lower authorities. The prayer of the assessee is that he should be given an opportunity to bring all those facts in response to the questionnaire of the ld. AO. 3.1. Keeping in view the facts and circumstances of the case and for the interest of justice, we come to the opinion that the assessee has to be given an opportunity to bring all those material facts before the ld. AO in support his case. Accordingly, order of the AO as well as ld. CIT(A) is hereby set aside. The appeal is hereby restored to the file of ld. AO for fresh order. The assessee is directed to furnish all those papers before the ld. AO and the AO is hereby directed to hear the assessee and pass order accordingly.