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Income Tax Appellate Tribunal, PUNE BENCH “SMC”, PUNE
Before: SHRI ANIL CHATURVEDI
आदेश / ORDER PER ANIL CHATURVEDI, AM :
This appeal filed by assessee is emanating out of the order of 1. Commissioner of Income Tax (Appeals) – 1, Aurangabad dated 14.09.2016 for A.Y. 2005-06.
The relevant facts as culled out from the material on record are as under :-
Assessee is an individual. In this case, assessee did not file the return of income for A.Y. 2005-06 and not paid any capital gain tax though he sold the land at Gut No./Survey 38 of Mouze Kannad, Tq. Kannad, Dist. Aurangabad at Rs.6,10,000/-. Notice u/s 148 of the
Act was issued on 28.03.2012 and served on assessee. Notice u/s
142(1) of the Act was issued on 10.08.2012 along with questionnaire.
Thereafter, case was selected for scrutiny and assessment was framed
u/s 144 r.w.s. 148 of the Act vide order dated 18.03.2013 and the
total income was determined at Rs.6,10,000/-. Aggrieved by the order
of AO, assessee carried the matter before Ld.CIT(A), who vide order
dated 14.09.2016 (in appeal No.ABD/CIT(A)/175/2013-14/ dated
26.04.2013) dismissed the appeal of assessee. Aggrieved by the order
of Ld.CIT(A), assessee is now in appeal and has raised the following
grounds :
“1. On the facts and circumstances of the case the Assessing Officer erred in law in passing order u/s 147 r.w.s. 143(3) and the same may be quashed as NULL and void and CIT(A)’s order confirming it set aside as bad in law.. 2. The assessing officer erred in i) Assuming jurisdiction u/s 148 of the I.T. Act, 1961. ii) Passing assessment order u/s 143(3) of the I.T. Act, 1961. iii) Determining income at Rs.610000/- without considering the purchase cost and development expenses of the asset sold and therefore the same may be held as bad in law ab initio. 3. Appellant contends on merits no additions is warranted.”
All the grounds being inter-connected are considered together.
Before me, Ld.A.R. at the outset, submitted that there is delay of
519 days in filing the present appeal. He submitted sworn affidavit of
assessee wherein the reasons for delay is explained and submitted that
the delay is not intentional and therefore prayed that the delay of 519
days be condoned. Ld.D.R. did not seriously object to the prayer of
condonation.
On the issue of condonation of delay of appeal, I have gone
through the sworn affidavit filed by the assessee and heard the Ld.A.R.
After considering the reasons stated in the affidavit, I am of the view
that the delay in filing the appeal has been satisfactorily explained. In
view of these facts, I condone the delay and admit the appeal for
hearing.
AO on the basis of CIB information, noticed that assessee had
sold land at Gut No./Survey 38 of Mouze Kannad, Tq. Kannad, Dist.
Aurangabad for Rs.6,10,000/- on 08.10.2004. AO noticed that despite
service of notice u/s 142(1) of the Act, none appeared on behalf of the
assessee nor any details were filed. He has also noted that assessee
did not file any copy of Purchase Agreement, Bills/Vouchers to show
the date of acquisition or cost of acquisition. As the assessee failed
to prove the sources of investments, AO treated the same as
unexplained and accordingly made addition of Rs.6,10,000/- on
account of capital gain tax. Aggrieved by the order of AO, assessee
carried the matter before Ld.CIT(A), who upheld the order of AO.
Aggrieved by the order of Ld.CIT(A), assessee is now in appeal.
Before me, Ld.A.R. submitted that Ld.CIT(A) has passed an ex-
parte order and not on merits. Ld.A.R. further submitted that the total
expenses for acquisition of property was worked out to Rs.1,60,000/-
and if indexed cost of acquisition is worked out, then the indexed cost
of acquisition works out to Rs.5,49,000/- and the indexed cost and
expenses work out to more than the sale consideration and therefore
assessee will not be liable for any capital gains. He further submitted
that assessee could not appear before the lower authorities and did not
produce the purchase agreement and also the bills/vouchers to prove
the expenses incurred for the construction and that if given a chance,
assessee undertakes to appear before lower authorities and furnish all
the required details to substantiate his case. He therefore submitted
that assessee be granted one more opportunity to explain his case.
Ld.D.R. on the other hand supported the order of AO and Ld.CIT(A)
and objected to Ld.A.R.’s prayer for 2nd innings.
I have heard the rival submissions and perused the material on
record. The issue in the present case is with respect to addition of
Rs.6,10,000/- on account of capital gain tax. Before me, it is
assessee’s contention that if the indexed cost of acquisition and the
other expenses are considered then the assessee will not be liable for
any capital gains. I find that this aspect has not been dealt with by
the lower authorities as they have passed ex-parte orders. In view of
the well settled principle of natural justice that sufficient opportunity
of hearing should be afforded to the parties and no party should be
condemned unheard, I am of the view that one more opportunity be
granted to the assessee to present his case before the lower
authorities. I therefore restore the matter back to the file of AO to
decide the issue on merits in accordance with law. Needless to state
that AO shall grant adequate opportunity of hearing to the assessee.
Assessee is also directed to promptly furnish all the details called for
by the authorities. In view of my decision to restore the issue to the
file of AO, I am not adjudicating on merits the grounds of the appeal
raised by the assessee. Thus, the grounds of assessee are allowed
for statistical purposes.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced on 9th day of October, 2019.
/- Sd/- (ANIL CHATURVEDI) लेखा सद�य / ACCOUNTANT MEMBER
पुणे Pune; �दनांक Dated : 9th October, 2019. Yamini
आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent 3. CIT(A)-1, Aurangabad. 4. Pr. CIT-1, Aurangabad. 5 �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, “एक सद�य” / DR, ITAT, “SMC” Pune; गाड� फाईल / Guard file. 6.
आदेशानुसार/ BY ORDER
// True Copy // व�र�ठ �नजी स�चव / Sr. Private Secretary आयकर अपील�य अ�धकरण ,पुणे / ITAT, Pune.