HASAMEEN ,MEERUT U.P. vs. ITO, WARD-1(2)(4) MEERUT U.P, MEERUT (U.P)

I have heard Shri Mohit Kumar, learned counsel for the assessee and Shri Om Prakash, learned Departmental Representative.

The basic grievance of the assessee is against non-consideration of the additional evidences filed before learned first appellate authority.

Briefly, the facts are, assessee is a resident individual. For the assessment year under dispute, assessee did not file any return of income under Section 139(1) of the Act. Subsequently, the assessing officer received information that assessee had sold an immoveable property during the year for a consideration of Rs.52,77,000. Since, the assessee did not offer any capital gain, assessing officer reopened the assessment under Section 147 of the Act. As observed by the assessing officer, in course of assessment proceedings, the husband of the assessee appeared and submitted a written reply. As stated by the assessing officer, in the written reply assessee admitted of having sold immoveable property during the year and requested for some more time to collect and furnish the required document. Alleging that assessee did not furnish the documents, assessing officer proceeded to complete the assessment under Section 144 read with section 147 of the Act, to the best of his judgment, adding back an amount of Rs.52,77,000 as short term capital gain. Against the assessment order so passed, assessee preferred an appeal before learned Commissioner (Appeals). As it appears on record, in course of proceedings before learned First Appellate Authority, assessee wanted to file certain additional evidences as well as additional grounds in relation to capital gain and corresponding deduction under Section 54F of the Act.

Having considered rival submissions and perused the material on record, I am of the view that assessee deserves an opportunity to furnish necessary documentary evidences to establish her claim on the issue of addition made on account of short term capital gain. This is so because, the assessing officer has treated the assets sold as short term capital assets. Whereas, it is the claim of the assessee that it is a long term asset, hence, capital gain, if any, should be assessed as long term capital gain. Further, assessee claims to have made investment in terms with section 54F of the Act. Thus, if the assessee wants to establish her claim through supporting evidences, which she could not furnish at the assessment stage as the assessment proceedings were concluded under Section 144 of the Act, such opportunity should have been granted to the assessee.

In view of the aforesaid, I set aside the impugned order of learned Commissioner (Appeals) and restore the issues back to the assessing officer for de novo adjudication after due and reasonable opportunity of being heard to the assessee. In case, assessee wants to furnish any evidence before the assessing officer, liberty is granted to her to do so. Assessing Officer is directed to examine the evidences furnished by the assessee on their own merits and decide the issue in accordance with law. Grounds are allowed for statistical purposes.

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