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Income Tax Appellate Tribunal, JAIPUR BENCHES, JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA. No. 85/JP/2018
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR Jh fot; ikWy jko] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA. No. 85/JP/2018 fu/kZkj.k o"kZ@Assessment Years : 2013-14 cuke Sh. Vikas Songara DCIT, Vs. Near Ajmer Hospital Circle-1, Police Line, Ajmer Ajmer LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AMIPS0584K vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri P. C. Parwal (CA) jktLo dh vksj ls@ Revenue by : Smt. Poonam Rai (DCIT) lquokbZ dh rkjh[k@ Date of Hearing : 05/06/2018 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 08/06/2018 vkns'k@ ORDER
PER: VIKRAM SINGH YADAV, A.M. This is an appeal filed by the assessee against the order of ld. CIT(A), Ajmer dated 28.11.2017 for Assessment Year 2013-14 wherein the assessee has raised following ground of appeal:-
“1. The ld. CIT(A) has erred on facts and in law in deciding the appeal ex-parte without providing adequate opportunity of hearing to the assessee. 2. The ld. CIT(A) has erred on facts and in law in not deciding the ground raised before him on merit by simply stating that assessee has
2 ITA No. 85/JP/2018 Sh. Vikas Songara, Ajmer vs. DCIT, Circle-1, Ajmer
not furnished any written submission ignoring that the complete facts has been mentioned in the application filed before AO u/s 154.”
Briefly stated, the facts of the case are that the assessee filed his return of income on 29.09.2013 declaring total income of Rs.20,96,210/- which included capital gain of Rs.20,36,567/-. The capital gain was declared on account of sale of factory land, building, etc. which was calculated as under:-
Particulars Amount Deemed sales consideration u/s 50C Rs.55,77,175/- (actual consideration Rs.54,35,000/-) Less:- Transfer Expenses Rs.17,000/- Rs.55,60,175/- Less:-Indexed cost of acquisition Rs.35,23,608/- Gain Rs.20,36,567/- Less:- Deduction u/s 54 on purchase of Rs.11,00,000/- house property at Rs.11 lacs Capital Gain Rs.9,36,567/-
Thereafter, the AO passed the assessment order u/s 143(3) wherein he computed the long term capital gains as under:- Particulars Amount Deemed sales consideration u/s 50C Rs.55,77,175/- Less:- Transfer Expenses Rs.17,000/- Rs.55,60,175/- Less:-Indexed cost of acquisition Rs.35,23,608/- Gain Rs.20,36,567/- Less:- Deduction u/s 54F on purchase of Rs.4,28,870/-
3 ITA No. 85/JP/2018 Sh. Vikas Songara, Ajmer vs. DCIT, Circle-1, Ajmer
house property at Rs.11,70,890/- (20,36,567*11,70,890/55,60,175) Capital Gain Rs.16,07,697/-
Thereafter, the assessee moved an application u/s 154 dt. 26.09.2016 claiming that it has wrongly included the sale amount of agricultural land of Rs.5,35,000/- (DLC value Rs.5,50,648/-) which is not liable for capital gain being the agricultural land situated beyond 8 kms of the municipal limit and that the investment in the house property is of Rs.15,74,060/- as against Rs.11 lacs claimed in the return. Accordingly, the revised capital gain was worked out as under:- Particulars Amount Deemed sales consideration u/s 50C Rs.50,26,527/- Less:-Transfer Expenses Rs.17,000/- Rs.50,09,527/- Less:-Indexed cost of acquisition Rs.33,23,418/- Gain Rs.16,86,109/- Less:- Deduction u/s 54F on investment in Rs.5,29,798/- house property at Rs.15,74,060/- Capital Gain Rs.11,56,31
The AO however rejected the application filed by the assessee u/s 154 stating that the above said contentions of the assessee have been duly considered but not found acceptable. The assessee has claimed a deduction which was not available to him. Hence, the application u/s 154 was rejected.
4 ITA No. 85/JP/2018 Sh. Vikas Songara, Ajmer vs. DCIT, Circle-1, Ajmer
The Ld. CIT(A) dismissed the appeal filed by the assessee by stating that the assessee has not furnished any written submission in support of ground of appeal raised by him and there is no infirmity in the order passed by AO. Being aggrieved, the assessee is in appeal before us.
It was submitted by the ld AR that in the application filed u/s 154, the assessee has specifically pointed out that it has wrongly included the sale of agricultural land of Rs.5,35,000/- which is not a capital asset in computing the capital gain. Further, it is also stated that investment in house property u/s 54F is Rs.15,74,060/- as against Rs.11,70,890/- considered by the AO. Both these facts are not denied by the lower authorities. Thus, when the entire facts are narrated in the application u/s 154, the Ld. CIT(A) was not justified in dismissing the appeal of the assessee only for the reason that assessee has not furnished the written submission in support of the grounds of appeal whereas the application filed u/s 154 itself contains all the submission of assessee. In view of above, AO be directed to compute the capital gain as per law after taking into consideration the facts narrated in the application u/s 154.
The ld DR is heard who has relied on the order of the lower authorities.
We have heard the rival contentions and purused the material available on record. The scope of section 154 is limited to the extent of rectifying any mistake which is apparent from the record. In the instant case, by way of a rectification application, the assessee has contended that the sale amount of agricultural land of Rs.5,35,000/- (DLC value
5 ITA No. 85/JP/2018 Sh. Vikas Songara, Ajmer vs. DCIT, Circle-1, Ajmer
Rs.5,50,648/-) is not liable for capital gain being the agricultural land situated beyond 8 kms of the municipal limit and secondly, the investment in the house property is of Rs.15,74,060/- as against Rs.11 lacs claimed in the return. We find that there is nothing on record which suggest that these facts were brought to the notice of the AO during the course of assessment proceedings or has skipped the attention of the AO. These are clearly fresh facts which are sought to be brought on record which is not permissible within the provisions of section 154 of the Act. Further, whether the agriculture land is an agricultural land situated beyond 8 kms of the municipal limits is a matter of investigation and fresh examination which is beyond the scope of section 154 of the Act. During the course of hearing, the ld AR has contended that there is no specific finding of the lower authorities as to why the assessee’s application was rejected and therefore, in interest of justice, the matter may be set-aside to the file of the AO to examine and pass a speaking order. We are however unable to accede to the request of the ld AR. As we have noted above, it is clearly not a matter calling for rectification under section 154 and we therefore, donot deem it appropriate to remand it to the AO as no useful purpose would be served by setting aside the matter. In the result, ground taken by the assessee is dismissed. In the result, the appeal filed by the assessee is dismissed.
Order pronounced in the open Court on 08/06/2018.
Sd/- Sd/- ¼fot; ikWy jko½ ¼foØe flag ;kno½ (Vijay Pal Rao) (Vikram Singh Yadav) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member
6 ITA No. 85/JP/2018 Sh. Vikas Songara, Ajmer vs. DCIT, Circle-1, Ajmer
Tk;iqj@Jaipur fnukad@Dated:- 08/06/2018
*Ganesh Kr. आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Sh. Vikas Songara, Ajmer 2. izR;FkhZ@ The Respondent- DCIT, Circle-1, Ajmer 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 6. xkMZ QkbZy@ Guard File { ITA No. 85/JP/2018} vkns'kkuqlkj@ By order, सहायक पंजीकार@Aेेज. त्महपेजतंत