AMIT RAJENDRA GUPTA,MUMBAI vs. WARD 29(1)(1), MUMBAI

The present appeal has been preferred against the impugned order dated 13.12.2024 passed by the Ld. Commissioner of Income–tax(Appeals)/ National Faceless Appeal Centre (NFAC) [hereinafter referred to as the “CIT(A)”] u/s. 250 of the Income-Tax Act, 1961 [hereinafter referred to as "Act"] for the Assessment year [A.Y.] 2011-12.

None appeared on behalf of the assessee nor was any adjournment application filed. Thereafter considering the issue involved in the present appeal, it was felt that no useful purpose will be served in adjourning the matter any further and to decide the matter basis material available on record.

Briefly the facts of the case are that the case of the assessee’s case was reopened u/s. 148 basis information that the assessee has sold certain immovable property for a consideration of Rs. 78,00,000/- during the year under consideration and notices were issued, however, there was no compliance on the part of the assessee. Thereafter, the show- cause was also issued to the assessee. Again there was no compliance on the part of the assessee. Thereafter, the AO proceeded and passed the order u/s. 144 r/w 147 of the Act wherein he has determined the assessed income at Rs. Amit Rajendra Gupta 87,06,000/-. The assessee thereafter carried the matter in appeal before the ld. CIT(A) who has since sustained the order so passed by the AO on account of non-prosecution by the assessee. Against the said order, the assessee has filed the present appeal before us.

We have heard the ld. DR and perused the material available on record. Though we find that there is repeat non-compliance on the part of the assessee in terms of filing the necessary information/documentation before the AO as well as before the CIT(A), at the same time, we find that the AO has brought to tax the whole of the sale consideration to tax as short term capital gains. On the perusal of the assessment order, we are unable to decipher what is the information which was available with the AO in respect of the sale of the immovable property and how the AO has arrived at the finding that the whole of the sale consideration can be brought to tax as short term capital gains. Even in passing the best judgment assessment, the AO has to act judiciously and decide the matter based on material available on record. In the instant case, it appears that either the AO was not in receipt of full information from the reporting authority or has failed to take into consideration the information so received. In any case, while computing the capital gains, the AO has to allow the cost of acquisition and indexation thereof where applicable. We therefore are of the opinion that the matter need to be restored to the file of the AO to ascertain the correct facts, cost Amit Rajendra Gupta of acquisition, period of holding etc and thereafter determine the appropriate tax which is leviable on the sale transaction under consideration. The assessee is also given one more opportunity and is directed to attend to the proceedings before the AO and to file necessary information and documentation and is at liberty to raise necessary contentions as so advised. In the result, we set aside the matter to the file of the AO to decide the same afresh as per law after providing reasonable opportunity to the assessee.

In view of the aforesaid, the other matter relating to addition of Rs 9,06,000/- is also set-aside to the file of the AO to decide the same afresh as per law after providing reasonable opportunity to the assessee.

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