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Income Tax Appellate Tribunal, DELHI BENCH : SMC : NEW DELHI
Before: SHRI R.K. PANDA
This appeal by the assessee is directed against the order dated 26.11.2018 of the CIT(A), Ghaziabad, relating to Assessment Year 2010-11.
There is a delay in filing this appeal by the assessee for which the assessee has filed an application for condonation of delay stating therein that the original order was not received by the assessee from the Department for which the assessee applied for certified copy which was provided to the assessee on 10th May, 2019. Thereafter, the counsel took about ten days for preparation of the appeal. The ld. counsel for the assessee accordingly submitted that the delay in filing of the appeal should be condoned. After hearing both the sides the delay in filing of the appeal by the assessee is condoned.
Facts of the case, in brief, are that the assessee is an individual and no return of income was filed by the assessee. The case of the assessee was reopened u/s 147 for the reason that capital gains arisen on sale of immoveable property for Rs.5,82,32,000/- by the assessee and other co-owners during the F.Y. 2009-10 chargeable to tax had escaped assessment. Accordingly notice u/s 148 was issued.
Since there was no compliance from the side of the assessee, notice u/s 142(1) was issued. However, again, there was no compliance for which fresh notices were issued.
Subsequently, the Advocate of the assessee appeared and filed certain details which were not sufficient according to the Assessing Officer, for determining the correct capital gain. He, therefore, proceeded to complete the assessment u/s 147 read with section 144 of the IT Act and determined the long-term capital gain in the hands of the assessee at Rs.68,32,735/-. Since there was non-compliance before the CIT(A), the ld.CIT(A) in the ex parte order passed by her, dismissed the appeal filed by the assessee.
4. Aggrieved with such order of the CIT(A), the assessee is in appeal before the Tribunal raising the following grounds:-
“1. That order of A.O was wrong, illegal and contrary to the facts of the case. 2. The assessment order dated 22-12-2017 passed u/s 147/144 of the I. T Act 1961 by the Ld. assessing office is bad in Law and has been passed without consideration of the facts of the case, hence is unsustainable. 3. That Appellant along with three more co-owners has sold an Agricultural 2 Land situated at khasra no-2386, village Makanpur, Indrapuram, Ghaziabad on 23- 12-2009 for consideration of Rs 58231250 /- in which Appellant’s share comes to Rs 14558000/- (l/4th Share).
Without prejudice to the above and in alternative, on merits the addition of Rs.6832735/- made towards income under the head LTCG is wholly illegal against the facts of the case as The Ld. A.O has erred in calculation of Indexed cost of acquisition by considering circle rate of the property @ Rs 50 per S.M whereas in actual market value of the said property at that time was around Rs 500 per S.M.
5. Also Appellant has invested Rs.13159700/- in construction of residential property and is entitled for deduction U/s 54F. But ld A.O has not considered the same and allowed deduction U/s 54F of Rs 7585435 /- only which is wrong and bad in Law.
The aforesaid addition has been made only on the basis of assumptions, surmises, conjunctures, without any enquiry or findings is unlawful and unjustified.”
I have heard the rival arguments made by both the sides and perused the material available on record. It is an admitted fact that the assessee during the assessment proceedings has filed only negligible details and, therefore, the Assessing Officer was constrained to complete the assessment u/s 147/144 of the IT Act. Since there was no compliance from the side of the assessee before the CIT(A), the ld.CIT(A), in the ex parte order passed by her, has upheld the action of the Assessing Officer. It is the submission of the ld. counsel for the assessee that in the interest of justice, the assessee should be given an opportunity of being heard to substantiate her case. Considering the totality of the facts of the case and in the interest of justice, I deem it proper to restore the issue to the file of the CIT(A) with a direction to grant one final opportunity to the assessee to substantiate her case and decide the issue as
per fact and law. The assessee is also hereby directed to appear before the CIT(A)
without seeking any adjournment under any pretext and cooperate in early disposal of the appeal failing which the ld.CIT(A) is at liberty to pass appropriate order as per law. I hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes.