SHRI AKHILESH JOSHI,DEWAS vs. INCOME TAX OFFICER-2, DEWAS, DEWAS

PER MANISH BORAD, AM.

These two appeals filed at the instance of two assessee’s namely

Late Smt. Kamla Bai ITA No.578/Ind/2017 pertaining to A.Y. 1

Kamla Bai & Akhilesh Joshi ITA No.578 to 579/Ind/2017 2010-11 in the case of Shri Akhilesh Joshi ITA No.579/Ind/2017

pertaining to Assessment Year 2010-11 are directed against the

order of Ld. Commissioner of Income Tax(Appeals) (in short ‘CIT(A)’),

Ujjain 29.05.2017 and 16.05.2017 which are arising out of the

order u/s 143(3)/148 of the Income Tax Act 1961(In short the ‘Act’)

dated 16.12.2016 and 17.12.2016 respectively framed by ITO-2,

Dewas.

they were heard together and have been disposed off by this

common order for sake of convenience and brevity.

both the appeals that, Ld.CIT(A) has not adjudicated the facts

properly. Various documents were filed before the lower authorities

including those pertaining to deduction claimed u/s 54B & 54F of

the Act, which have not been considered. In light of these facts

Ld.Counsel for the assessee requested for setting aside all the

issues raised in both these appeals to the file of Ld. Assessing Officer (In short Ld.A.O) for denovo adjudication.

Kamla Bai & Akhilesh Joshi ITA No.578 to 579/Ind/2017 4. Ld. Departmental Representative though supported the orders

of lower authorities but did not oppose to the request of Ld.Counsel

for the assessee for setting aside all the issues raised in these two appeals to the file of Ld.A.O for denovo adjudication.

placed before us. In both these appeals relating with Smt. Kamla

Bai and Shri Akhilesh Joshi multiple grounds have been raised

apart from challenging the reopening of the assessment. Grounds

have been raised against the addition for Long Term Capital Gain at

Rs.59,48,470/-. in the hands of both the assessee’s made on

account of invoking of the provisions of section 50C(3) of the Act,

adopting the value assessed by the Stamp Valuation Authority

which is higher than the sale consideration received by the

assessee’s. Grounds have also been raised for not allowing

deduction u/s 54B and 54F of the Act. Revenue has not

controverted the fact that Ld.CIT(A) has not dealt with the issue for

giving deduction u/s 54B and 54F of the Act even when the

assessee has filed necessary documents. Various submissions of

the assessee have also not been considered which relates to the

Kamla Bai & Akhilesh Joshi ITA No.578 to 579/Ind/2017 ownership of the property which is contended to be that of Hindu

Undivided Family (HUF) property being ancestral in nature and

additions wrongly made for 1/3 of the long term capital gain even

when the property was inherited by 6 persons. Issue has also been

raised for the benefit u/s 54B and 54F of the Act which were not

entertained even when the assessee was carrying on agriculture

operation on the alleged land sold during the year. Assessee’s

challenge for reviewing the provision of Section 50C have not been

considered even when the impugned land was situated below the high tension line situated at a hilly area with a “Nalla” going

nearby. The assessee’s request for referring the valuation to the

Stamp Valuation Officer was also not considered by the Ld.A.O.

of the case we are of the considered view that all the issues raised

in both these appeals needs to be set aside to the file of Ld.A.O for

afresh adjudication. We accordingly order so. We also direct the

assessee to remain compliant to the notice for hearing issued by the

Ld.A.O and submit necessary documents and records in support of

his contentions so that proper adjudication could be done by the

Kamla Bai & Akhilesh Joshi ITA No.578 to 579/Ind/2017 Ld.A.O. Needless to mention that proper opportunity of being heard

should be provided to the assessee.

statistical purposes.

The order pronounced in the open Court on 17.10.2018.

Sd/- Sd/-

( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER �दनांक /Dated : 17 October, 2018 /Dev Copy to: The Appellant/Respondent/CIT concerned/CIT(A) concerned/ DR, ITAT, Indore/Guard file. By order Private Secretary/DDO, Indore