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Income Tax Appellate Tribunal, “F” BENCH, MUMBAI
आदेश / O R D E R
PER AMARJIT SINGH, AM:
The present appeal filed by the assessee is directed against the order passed by the CIT(A) which in turn arises from the assessment order passed by the A.O u/s 144 of the I.T. Act, 1961, dated 20.12.2018 for A.Y. 2016-17. The grounds of appeal are as under: “1. The appellant is a non-resident residing in Canada. During the relevant assessment year she had sold a residential Flat in Kharghar for Rs.120,00,000. The long term capital gain on sale of Flat amounted to Rs.36,89,969. Consequently the taxes were paid and the Income Tax return was filed on 23rd May 2016. Thereafter, the Assessing Officer issued notice under section 143(2) on 7th July 2017. Since the assessee is a non resident for many years and she is not a taxpayer in India she
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did not check if any notice has been issued on ITBA portal. Therefore the appellant could not reply to the same notice. Even follow up notices and show cause notices could not be replied. Consequently the Assessing Officer passed the best judgement order under selection 144 on 20th December 2018. Due to lack of information the assessing officer treated the capital gains on sale of Flat as short term capital gain and taxed accordingly. 2. CIT (A) had given the time for submission upto 19th august 2021. There was income tax portal issue due to which assessee could not file submission upto 16th august 2021. The assessee got the order u/s 250 of income tax act 1961, from CIT(A) on 17th august 2021 which was even prior to the last date of submission I.e. 19th august 2021.”
Both these ground of appeal are interconnected, therefore, for the sake of convenience these grounds of appeal adjudicated together.
The fact in brief is that assessee has filed return of income for the year under consideration on 23.05.2016 declaring total income at Rs.36,89,970/-. The return was subject to scrutiny assessment and notice u/s 143(2) of the Act was issued on 07.07.2017 through ITBA portal online but no reply was received from the assessee. Thereafter, notice u/s 142(1) of the Act was issued on 17.05.2018 and 02.07.2018 through ITBA portal, however, no reply was received from the assessee. Similarly, no reply was received in response to show cause notice issued by the assessing officer. Consequently, the assessing officer has finalized the assessment ex-parte u/s 144 of the I.T. Act and treated the amount of Rs.95,43,792/- as short term capital gain occurred from the sale of property during the year under consideration.
Aggrieved, the assessee has filed the appeal before the ld. CIT(A). Retreating the facts reported by the assessing officer, the ld. CIT(A) stated that assessee has not submitted any documentary evidences related to purchase and sale of the property, therefore, addition made by the assessing officer was confirmed.
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During the course of appellate proceedings before us the ld. Counsel vehemently contended that ld. CIT(A) has not considered the submission of the assessee that assessee was Non-resident and the notice issued on ITBA Portal could not be accessed, therefore, the relevant detail could not be furnished before the assessing officer. The ld. Counsel further submitted relevant evidences before the ld. CIT(A) which was not considered for deciding the issue on merit.
On the other hand, the ld. D.R relied on the order of lower authorities.
Heard both the sides and perused the material on record. During the course of assessment the assessing officer treated the long term capital gain occurred to the assessee on the sale of property as short term capital gain because of not making compliance during the course of assessment proceeding. The ld. CIT(A) has dismissed the appeal of the assessee holding that assessee has not submitted any documentary evidences relating to purchase and sale of the property. In this regard, on the perusal of Form No. 35 filed by the assessee before the ld. CIT(A) at Column No. 11 the assessee has categorically explained that it had sold a residential flat in Kharghar (Navi Mumbai) for Rs.1,20,00,000/- and the long term capital gain on the sale of the flat was arised to the amount of Rs.36,89,969/-. The assessee has also submitted in Column No. 12 of the form 35 that documentary evidences in terms of Rule 46A were also filed. In this regard the assessee has filed copy of Income tax return for assessment year 2016-17 along with statement of total income and computation of long term capital gain. The assessee has also filed the copies of statement issue by the bank regarding charging of interest on the loan amount obtained for the sold property. The assessee has also
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filed the copy of sale deed and payment of stamp duty on the sold property etc. The assessee has also incorporated in her ground of appeal that ld. CIT(A) had given the time for making submission up to 19.08.2021 but because of income tax portal issue the assessee could not file the submission up to 16.08.2021, however, the ld. CIT(A) has passed the order u/s 250 of the Income Tax Act, on 17.08.2021, even prior to the last date of submission fixed on 19.08.2021. In the light of the above facts and material placed on record, we observe that Sec. 250(6) contemplates that the ld. CIT(A) would determine point in dispute and therefore, record reasons of such point in support of his conclusion. Accordingly, we restore this issue to the file of the ld. CIT(A) for deciding the issue on appeal afresh on merit after taking into consideration the material placed on record by the assessee and after giving due opportunity. Therefore, the appeal of the assessee is allowed for statistical purposes.
In the result, the appeal filed by the assessee is allowed for statistical purpose.
Order pronounced in the open court on 17.03.2022
Sd/- Sd/- (AMARJIT SINGH) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, Dated 17.03.2022 Rohit: PS
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आदेश की �ितिलिप अ�ेिषत/Copy of the Order forwarded to : अपीलाथ� / The Appellant 1. ��थ� / The Respondent. 2. संबंिधत आयकर आयु� / The CIT(A) 3. आयकर आयु�(अपील) / Concerned CIT 4. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Mumbai 5. गाड� फाईल / Guard file. 6. आदेशानुसार/BY ORDER, स�ािपत �ित //True Copy//
( Asst. Registrar) ITAT, Mumbai