LAXMAN BHAU PAWALE,AT POST PIRANGUT MUKAIWADI PUNE vs. ITO WARD 2.4 RANGE CODE 53, PUNE SWARGET

The Ld. Counsel for the assessee at the outset referring to the assessment order passed by the Assessing Officer, NFAC in the case of brother of the assessee submitted that he has accepted the sale of land as agricultural land and no addition on account of capital gain has been made in the order passed u/s 147 r.w.s. 144 r.w.s. 144B of the Act. Since the assessee in the instant case is a farmer and an illiterate person, therefore, in the interest of justice, the various evidences filed before the Ld. CIT(A) / NFAC should have been accepted by him instead of rejecting the same on technical grounds for non-filing of an application under Rule 46A. He submitted that in the interest of justice, the assessee should be given an opportunity to substantiate his case by filing the requisite details before the Assessing Officer with a direction to re-adjudicate the issue.

The Ld. DR on the other hand heavily relied on the orders of the Assessing Officer and the Ld. CIT(A) / NFAC.

We have heard the rival arguments made by both the sides, perused the orders of the Assessing Officer and the Ld. CIT(A) / NFAC and the paper book filed on behalf of the assessee. It is an admitted fact that due to non-response to the various statutory notices issued by the Assessing Officer, he completed the assessment u/s 147 r.w.s. 144 r.w.s. 144B of the Act on 14.03.2024 and brought to tax an amount of Rs.3,74,17,200/- as undisclosed capital gain. Since the assessee has not complied to the various statutory notices issued by the Assessing Officer, the Ld. CIT(A) / NFAC rejected the various evidences filed before him in shape of additional evidence in absence of any application made under Rule 46A and thereby sustained the addition made by the Assessing Officer. It is the submission of the Ld. Counsel for the assessee that the assessee is a farmer and an illiterate person for which he could not participate in the assessment proceedings. Further, in the case of the brother of the assessee, the Assessing Officer in the assessment order passed u/s 147 r.w.s. 144 r.w.s. 144B of the Act has not made any addition and treated the land sold as agricultural land and not as capital asset within the meaning of section 2(14) of the Act. It is his submission that in the interest of justice the assessee should be given an opportunity to substantiate his case by filing the requisite details before the Assessing Officer.

We find some force in the above arguments of the Ld. Counsel for the assessee. We find from the order passed by the Assessing Officer in the case of the brother of the assessee that he has accepted the sale of land as agricultural land and not a capital asset as per provisions of section 2(14) of the Act. Although the assessee has not participated in the assessment proceedings, however, we find the assessee filed various details before the Ld. CIT(A) / NFAC justifying his claim that the land in question is not a capital asset being an agricultural land. However, the Ld. CIT(A) / NFAC did not admit the additional evidences filed before him in absence of proper application under Rule 46A. Therefore, considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore the issue to the file of the Assessing Officer with a direction to grant one final opportunity to the assessee to substantiate his case by filing the requisite details and decide the issue as per fact and law after providing due opportunity of being heard to the assessee. The assessee is also hereby directed to submit the requisite details before the Assessing Officer on the appointed date without seeking any adjournment under any pretext, failing which the Assessing Officer is at liberty to pass appropriate order as per law. We hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes.

In the result, the appeal filed by the assessee is allowed for statistical purposes.