SURESH KESHAV WANI,AURANGABAD vs. INCOME-TAX OFFICER, WARD - 1(4), AURANGABAD

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.

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.”

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.

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.

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.

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.

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.

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.