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Facts
The assessee's case was selected for limited scrutiny regarding investment in immovable property where the purchase value was less than the stamp valuation, potentially attracting Section 56(2) of the Income Tax Act. Due to non-compliance, the Assessing Officer completed an ex-parte assessment under Section 144, adding a significant difference amount as 'income from other sources' under Section 56(2)(x). The assessee appealed to the CIT(Appeals).
Held
The CIT(Appeals) deleted the addition, reasoning that Section 56(2)(x) did not apply as the assessee, a developer, did not own the property, and had submitted joint development agreements. The ITAT set aside the CIT(A)'s order and remanded the matter back to the Assessing Officer for fresh examination, noting that the CIT(A) deleted the addition without a remand report or sufficient reason based on documents produced for the first time during appeal. The assessee's Cross Objection was dismissed as infructuous.
Key Issues
Whether Section 56(2)(x) applies to a developer regarding immovable property where ownership does not rest with them, and the procedural validity of the CIT(Appeals) deleting an addition based on new evidence without seeking a remand report from the Assessing Officer.
Sections Cited
143(1), 56(2), 143(2), 142(1), 272A(1)(d), 144, 143(3), 144B, 56(2)(x)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, ‘A’ BENCH, KOLKATA
Before: Shri Duvvuru RL Reddy, Vice-(KZ) & Shri Sanjay Awasthi
Per Duvvuru RL Reddy, Vice-President (KZ):- The present appeal bearing is preferred by the Revenue against the order of ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi dated 24th April, 2024 passed for Assessment Year 2020-21.
None appeared on behalf of the assessee at the time of hearing. Therefore, we have decided to dispose of the appeal after hearing the ld. Departmental Representative and perusing the material available on record.
The appeal is time barred by 152 days in filing the appeal by the Revenue. However, Shri Arup Bhattacharyya, ITO, Ward-50(1), Kolkata filed a condonation petition saying that the delay in filing the instant appeal has not been occasioned due to any willful or deliberate act on the part of the Revenue. Since the appellant is a Government Department and the file had to move from one desk to another for the purpose of taking decisions with regard to the filing appeal and the condonation of delay application is made
Considering the facts and circumstances of the case, we are of the view that the Revenue was prevented in filing the appeal within the stipulated time. Therefore, we are inclined to condone the delay of 152 days. Hence the delay is condoned.
Brief facts of the case are that the assessee filed his return of income in Form ITR 3 on 31/03/2021 declaring total income at Rs.28,57,690/-. Subsequently, the assessee also filed a revised return of income on 18.09.2021 declaring total income at Rs.22,72,880/-. The said revised return was processed under section 143(1) by the CPC on 16.11.2021 determining a refund of Rs.2,21,260/-. Subsequently the case was selected for limited scrutiny assessment under CASS to examine/verify on the reasons that investment in immovable property/the purchase value of the property is less than the value determined by the stamp valuation authority under section 56(2) or any other relevant section. Accordingly notice under section 143(2) was issued on 29.06.2021 and duly served upon the assessee through ITBA Portal. In the said notice, the assessee was required to furnish his response on the issue i.e. “investment in immovable property” with supporting documents, but the assesese could not have been able to furnish any reply/response. It was evident that the purchase/stamp value determined by the Registering Authority of the immovable property of Rs.5,30,98,271/- and the difference amount of 5,30,98,253/- 3 (A.Y. 2020-2021) & C.O. No.8/KOL/2025 (in Netai Bhadra required to be disclosed by the assessee under the head “income from other sources” in view of the provisions of section 56(2)(x) of the Income Tax Act and Since the assessee failed to make compliance of the statutory notices issued under section 142(1), the penalty proceedings under section 272A(1)(d) were initiated and the ld. Assessing Officer determined the total taxable income of the assessee at Rs.5,59,55,943/- under section 144 read with section 143(3) and 144B of the Income Tax Act, 1961.
On being aggrieved, the assessee preferred an appeal before the ld. CIT(Appeals).
The ld. CIT(Appeals) deleted the addition made by the ld. Assessing Officer saying that the assessment has been completed ex-parte since there was no response from the appellant-assesee during the course of assessment proceedings. In the appellate proceedings, the appellant has filed documents and joint development agreements with land owners showing that the assessee was the developer and entered into various joint developments agreements for development of their lands. Therefore, ld. CIT(Appeals) was of the opinion that since the ownership does not rest with the developer, the provisions of section 56(2)(x) do not apply to the assessee.
On being aggrieved, the Revenue preferred an appeal before the ITAT. (A.Y. 2020-2021) & C.O. No.8/KOL/2025 (in Netai Bhadra 9. It was the submission of the ld. D.R. that the ld. CIT(Appeals) without giving any reason for deleting the addition made by the ld. Assessing Officer, but by simply mentioning that the ld. Assessing Officer passed the ex-parte order. The assessee filed all the documents before ld. CIT(Appeals), but he deleted the addition made by the ld. Assessing Officer. Therefore, ld. D.R. prayed before the Bench that the impugned order of ld. CIT(Appeals) be set aside and upheld the order passed by the ld. Assessing Officer.
No representation was made from the side of assessee inspite of receipt of notice issued by the ITAT, Considering the facts and circumstances of the case, we are of the view that it is a fit case to set aside the order passed by the ld. CIT(Appeals) since he has not obtained the remand report of the ld. Assessing Officer and without giving any valid reason to delete the addition. Ld. CIT(Appeals) simply mentioned that the ownership does not rest with the developer and the provisions of section 56Z(2)(x) do not apply to the assessee. The joint development agreement filed by the assessee during the first appellate proceedings itself is not sufficient to delete the addition and the ld. CIT(Appeals) has not given any sufficient reason to delete the addition. Therefore, considering the facts and circumstances of the case, we set aside the order passed by the ld. CIT(Appeals) and remit the matter back to the file of ld. Assessing Officer to examine this issue afresh after considering the details filed by the assessee before the ld. CIT(Appeals). At the same breath, we also hereby caution the Revenue to promptly co-operate with the proceedings before the 5 (A.Y. 2020-2021) & C.O. No.8/KOL/2025 (in Netai Bhadra Ld. Assessing Officer failing which the Ld. Assessing Officer shall be at liberty to pass appropriate order in accordance with law and merits based on the materials available on the record. Thus, the grounds raised by the Revenue are allowed for statistical purposes.
11 The Cross Objection bearing C.O. No. 8/KOL/2025 arising out of is in support of the order of ld. CIT(Appeals). Since we set aside the order passed by the ld. CIT(Appeals), and allowed the appeal of the Revenue for statistical purposes, the issues raised by the assessee in his Cross Objection have become infructuous. We accordingly dismiss the Cross Objection filed by the assessee as infructuous.
In the result, the appeal of the Revenue is allowed for statistical purposes and the Cross Objection of the assessee is dismissed. Order pronounced in the open Court on 26/06/2025.