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Income Tax Appellate Tribunal, CUTTACK BENCH, CUTTACK
Before: S/SHRI N.S SAINI & PAVAN KUMAR GADALE
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IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK
BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER
ITA No.351/CTK/2017 Assessment Year : 2009-2010
Sri Nihar Ranjan Behera, Vs. ITO, Ward 2(2), At:Plot No.4136, Badagada Bhubaneswar. Village, Badagada Brit Colony, Badagarh, Bhubaneswar. PAN/GIR No.AKYPB 4395 F (Appellant) .. ( Respondent)
Assessee by : Shri S.K.Jena, AR Revenue by : Shri D.K.Pradhan, DR
Date of Hearing : 17/05/ 2018 Date of Pronouncement : 17/05/ 2018
O R D E R Per N.S.Saini, AM This is an appeal filed by the assessee against the order of the
CIT(A)- 1, Bhubaneswar dated 27.6.2017 for the assessment year 2009-
2010.
Ground No.1 of appeal reads as under”
“ For that the impugned order of assessment passed by the Ld. A.O u/s.147 of the Act, to reopen the assessment, is legally impermissible particularly there were no tangible materials available on record in order to reopen the assessment, as such the appellant had no taxable income for the year under appeal. However the Ld. A.O was taken up the reassessment proceeding by basing on the reasons of the erstwhile assessing officer, which is non application of mind on his part. Thus the reopening as well as the impugned assessment order has been incorrectly made by
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the Ld. A.O, therefore unsustainable and impermissible under law.” 3. No submissions were advanced by ld A.R. of the assessee,
therefore, this ground is dismissed for want of prosecution.
Ground Nos.2 & 3 read as under:
For that despite proper compliance with supporting documents were produced by the appellant before the Ld. CIT (A) during the course of hearing of the first appeal, the Ld. CIT (A) without verifying the same simply up hold the impugned assessment order. The Ld. CIT (A) has given an erroneous conclusion that the land sold by the appellant and the entire consideration amount is subjected to short term capital gain, despite the fact that the land in question is an ancestral agricultural land inherited by the appellant from his deceased father. Further the documents are available with the appellant which established that fraud has been practiced by the purchaser in increasing the value of the land in question at the time of transfer. Therefore, the Ld. CIT (A) is erred in not examine those documents presented by the appellant during the course of hearing of the first appeal. Under such circumstances the orders in the forum below is liable to be set aside for readjudication.
For that in the present case both the Ld. A.O as well as Ld. CIT(A) have not examine the documentary evidences presented by the appellant and without providing proper opportunity the impugned orders have been passed by the authorities below, therefore the orders suffer from non application of mind and violates rules of natural justice, hence impermissible under Law.”
The brief facts of the case are that the Assessing Officer observed
that as per sale deed dated 28.2.2009, the assessee has received
Rs.53,72,400/- from Mr Chelapa Viswanathan as sale consideration of
land bearing Khata No.1494/1762, Plot No.1673, Area Ac.0.242 dec.
Mouza-Bhubaneswar Sahara, Unit No.35, Badagada, Thana No.76 during
the financial year 2008-09. Accordingly, he show caused the assessee.
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Since there was no response from the assessee by providing
corroborative evidence to substantiate his claim, the Assessing Officer
inferred that the assessee had nothing to say and added the entire
amount of Rs.53,72,400/- as income of the assessee under the head
“Long term capital gains”.
Before the CIT(A), the assessee made written submissions, which
are quoted in para 4 of the order of the CIT(A).
The contention of ld A.R. by way of this appeal is that the
documents and evidences which were produced before the CIT(A) and the
arguments of the assessee were not considered by the CIT(A) before
disposing the appeal of the assessee and, therefore, the matter should be
restored back to the file of the CIT(A) for giving his findings on the
evidences and submissions of the assessee.
Ld D.R. had no objection to the above contention of ld A.R. of the
assessee.
After considering the rival submissions and perusing the orders of
lower authorities, we find from the order of the CIT(A) that the assessee
has given Bench Mark Government Valuation rate for Kissam Sarada II for
stamp duty purpose. The assessee contended that the Bench Mark value
of the property in question was Rs.5,32,400/- and the assessee has sold
the same for Rs.6,05,000/-. As the consideration shown was more than
the Bench Mark value as per the provisions of Section 50C(1), no addition
was called for. The CIT(A) has not given his findings on the above
submissions and evidences filed by the assessee. We, therefore, set
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aside the orders of lower authorities and remand the issue back to the file
of the CIT(A) for adjudicating the same afresh after allowing reasonable
opportunity of hearing to the assessee. Thus, the grounds of appeal of
the assessee are allowed for statistical purposes.
Ground Nos.4 and 5 of appeal are general in nature and hence,
requires no separate adjudication.
In the result, appeal of the assessee is partly allowed.
Order pronounced on 17 /05/2018. Sd/- sd/- (Pavan Kumar Gadale) (N.S Saini) JUDICIALMEMBER ACCOUNTANT MEMBER Cuttack; Dated 17 /05/2018 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : Sri Nihar Ranjan Behera, At:Plot No.4136, Badagada Village, Badagada Brit Colony, Badagarh, Bhubaneswar 2. ITO, Ward 2(2), The Respondent. Bhubaneswar 3. The CIT(A)-1, Bhubaneswar BY ORDER, 4. Pr.CIT-1, Bhubaneswar 5. DR, ITAT, Cuttack 6. Guard file. SR.PRIVATE SECRETARY //True Copy// ITAT, Cuttack