SATYAWATI (L/H OF LATE DHAN PRAKASH TYAGI),GHAZIABAD vs. ITO WARD -1(2), GHAZIABAD

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.

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condoned. After hearing both the sides the delay in filing of the appeal by the assessee

is condoned.

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.

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

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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). 4. 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. 6. The aforesaid addition has been made only on the basis of assumptions, surmises, conjunctures, without any enquiry or findings is unlawful and unjustified.”

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

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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.