SHRI SHAMRAO SHRIPATI PATIL,KOLHAPUR vs. ITO WARD-2(3), KOLHAPUR
What did the Tribunal hold?
The Tribunal noted that the first appellate order was passed ex-parte. Considering the totality of the facts and in the interest of justice, the Tribunal set aside the order of the CIT(A)/NFAC and remanded the matter back for a fresh decision on merits after providing an opportunity of hearing to the assessee.
What were the facts?
The assessee sold immovable property along with others. The Assessing Officer made an addition for long-term capital gain based on the sale deed executed on 04.09.2009, while the assessee claimed the actual transfer was on 20.05.2010, falling in the next assessment year. The assessee remained absent throughout the assessment and first appellate proceedings.
What were the issues?
Whether the addition on account of long-term capital gain pertains to the current assessment year or a subsequent year, and whether the ex-parte order of the CIT(A) should be set aside to decide the matter on merits.
Which sections of the Income-tax Act were involved?
Section 148,Section 142(1),Section 144(1),Section 133(6),Section 271(1)(c)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, PUNE BENCH “B”, PUNE
Before: SHRI MANISH BORAD & SHRI VINAY BHAMORE
Assessment Year : 2010-11 Shri Shamrao Shripati Patil, Vs. ITO, Ward-2(3), 54 E Ward, Kadamwadi Kalhapur. Road, Karveer, Dist. Kolhapur- 416005. PAN : BCAPP0373C Appellant Respondent Assessee by : None Revenue by : Shri Arvind Desai Date of hearing : 06.03.2025 Date of pronouncement : 22.05.2025 आदेश / ORDER
PER VINAY BHAMORE, JM:
This appeal filed by the assessee is directed against the order dated 29.09.2023 passed by Ld. CIT(A)/NFAC for the assessment year 2010-11.
The appellant has raised the following grounds of appeal :- “1] The learned CIT(A) erred in confirming the addition on account long term capital gain of Rs 51,48,983/- in assessment year 2010-11 when the final sale deed was executed on 20th May 2010 i.e. in AY 2011-12. 2] The learned CIT(A) erred in not appreciating that the sale deed executed on 04th September 2009 was incomplete as some of the 20th May 2010 when the parties to the sale deed executed a confirmation deed on 20th May 2010. 3] The learned CIT(A) erred in confirming levy of penalty u/s 271(1)(c) of the Income Tax Act. 4] The appellant craves leave to add, alter, amend, or delete and of the above grounds of appeal
.”
3. There is delay in filing of the present appeal. We are satisfied with the reasons mentioned in the affidavit for condonation that the applicant was prevented by sufficient cause for not filing the appeal within the prescribed time limit. Ld. DR has not raised any objection to condone the delay therefore, we condone the delay and proceed to adjudicate the appeal.
4. Facts of the case, in brief, are that the assessee is an individual and has not furnished its return of income. On the basis of NMS data available in the system, the Assessing Officer noticed that the assessee has sold immovable property of more than Rs.30,00,000/- and accordingly after taking approval of the appropriate authority notice u/s 148 was issued to the assessee. Subsequently, notices u/s 142(1) and 144(1) were issued to the assessee, however, the assessee did not responded. The Assessing Officer issued notice u/s 133(6) of the IT Act to the Joint Sub-Registrar, Kolhapur, who 04.09.2009. From perusal of the same, the Assessing Officer noted that the assessee along with five other persons have sold immovable property for a consideration of Rs.3,06,00,000/- whereas the Fair Market Value for the purposes of stamp duty was Rs.3,28,69,200/-. Since the assessee remained absent, the Assessing Officer completed the assessment u/s 144 of the IT Act by determining taxable income of Rs.51,48,983/-. The above assessed income includes long term capital gain (1/6th share of Rs.3,08,93,900/-) of Rs.51,48,983/-.
5. Since the assessee remained absent, Ld. CIT(A)/NFAC dismissed the appeal filed by the assessee for want of prosecution. It is this order against which the assessee is in appeal before this Tribunal.
6. When the appeal was called for hearing, none appeared on behalf of the appellant-assessee nor any adjournment application was filed despite due service of notice of hearing, therefore, we proceed to decide the appeal with the able assistance of Ld. DR and on the basis of material available on record.
7. Ld. DR appearing from the side of the Revenue submitted before us that despite due service of notices of hearing the assessee Assessing Officer as well as before Ld. CIT(A)/NFAC. Accordingly, Ld. DR requested before the Bench to confirm the order passed by Ld. CIT(A)/NFAC.
We have heard Ld. DR and perused the material available on record. In this regard, we find that admittedly the assessee has sold certain immovable property along with five other persons. However, in the grounds of appeal as well as in statement of facts, it is the claim of the assessee that a supplementary deed was executed in the subsequent year, therefore, the transaction does not pertain to this year, but was entered in subsequent year i.e. assessment year 2011-12. Apart from the above, it is also apparent from the assessment order that no cost of acquisition was allowed while calculating long term capital gain. However, we also find that the first appeal order was passed ex-parte since the assessee remained absent before Ld. CIT(A)/NFAC. Considering the totality of the facts of the case and in the interest of justice and without going into merits of the case, we deem it appropriate to set-aside the order passed by Ld CIT(A)/NFAC and remand the matter back to him with a direction to decide the appeal afresh on merits of the case as per fact and law after providing reasonable opportunity of hearing to
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