SUSHMA SHARMA ,JAIPUR vs. ITO, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर
IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR

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BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, vk;dj vihy la-@ITA No. 1328/JP/2024
fu/kZkj.k o"kZ@Assessment Year : 2009-10

Late Sushma Sharma, through
Legal representative
Mahendra Kumar Sharma,
Plot No. 1, Narada Colony,
Opposite Queen’s Road, Jaipur cuke
Vs.
Income Tax Officer,
Ward 5(1),
Jaipur
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ANVPS3110K vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. Arbind Sharma jktLo dh vksj ls@ Revenue by : Sh. Gautam Singh Choudhary, JCIT lquokbZ dh rkjh[k@ Date of Hearing

: 19/02/2025

mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 17/04/2025

vkns'k@ ORDER

PER: DR. S. SEETHALAKSHMI, J.M.

By way of the present appeal the above named assessee challenges the order of the National Faceless Appeal Centre, Delhi dated 24/09/2024
[here in after ‘NFAC’ ] for assessment year 2009-10. The said order of the ld. CIT(A) arises because the assessee challenged the order of the assessment dated 26.04.2017 passed under section 271(1)(c) of the Income Tax Act, [ for short Act] by ITO, Ward 5(1), Jaipur [ for short AO].

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2. In this appeal, the assessee has raised the following grounds: -
(A) Appeal No. 484/2018-19 u/s 271(1)(b)- against penalty of Rs. 10,000/- for non –compliance of notice dt. 14.09.2016 (U/s 142(1)).
(B) Appeal No. CIT(A) Jaipur 2/11446/2017-18 under section 144, 147 against the addition of Rs. 11,50,000/- as a short capital gain by the AO (ITA Ward
5(1), Jaipur)
(C) Appeal No. CIT(A) Jaipur 2/11448/2017-18 – under section 271 (1)(c) against the penalty of Rs. 2,79,851/-.
2. Wrong and different-different addresses in notices:-
(a.) That the Assessment Order & Computation Form by AO dated 7-10-2016
itself has wrong address and has address of Plot No. 28. Although this Assessment Order and addition of amount in assessment has been quashed pending appeal of present impugned order.
(b.) The demand notice u/s 156 dated 7-1024 has another address of plot No.
48. (c.) The Impugned Penalty order of present case & its Computation of the appeal have wrong address of Plot No. 28 of the assessee. The plot No. 28
never had any relevancy to the Assessees. Due to wrong address they were not served and came in the knowledge of the Appellant. The delay condone was justified but mechanically impugned order has been issued and rejected the appeal under section 271(1)(c) I.T. Act.
The AO (ITO Ward 5(1), Jaipur) has already complied the CIT (AS) order and issued his order on dt. 8-10-2024 as income revised as ‘Nil’. This show there was no conceal of income.
3. That after quashing re-assessment & holding NIL revision vide order on dated 14.09.24 and also penalty for non-compliance of notice under 271(1)(b) on dated 24.01.2019, the impugned order of 271(1)(c) dated 24.09.2024 being it self without genesis and base & became illegal. It has been passed mechanical and deserves to be quashed.
4. That the assessed was earlier residing at house No. 88, Boarodi Ka Kuva
Ka Rasta, gangori Bazar, Jaipur up to the middle of the year 2011. This house became dangerous building and complaints were made and inspected by the Municipal Authtorities. This house No 88 was demolished & converted in to Malba, due to being dangerous building on the compliance of the notice No 30
dated 11-7-2011 of the Commissioner (West) of Municipal corporation, Jaipur in the year. The copy of notice dated 11-7-2011of the Municipal Corporation.
Prior to the month of July 2011 she was residing at Plot No. 1 Narada
Colony. Jaipur and no notice were issued by the A.O at this address.
The Quashed assessment order of A.O dated 7-10-2016 has mentioned that the notice under section 148 was issued on dated 15-3-16 through speed

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has made assessment. There is no report of identification of site and existence of house and identification & details of witness as the assessee residing their.
This assessment has been quashed and ITO Ward No 5 (i) Jaijpur has also issued his order accordingly as revision Nil.
Due to wrong addresss in all the correspondence and orders, they wre not served. The Deptt was under obligation to serve them. Their is violation of natural justice and more particulalry when Assessement has been quashed and penalty for non compliance of notice has been also quashed, There is a want of NATURAL JUSTICE and violation of Article 14, 21,301 Constitution of India.
The impunged order of this appeal is consequential to Annexure I & II and when they were quashed it deserves to be quashed.
5. That in the assessment order although that has been quashed in the appeal, the cost of acquisition of property and their subsequent development cost was not considered. They considered this as Nil. & total sale consideration was considered as a short capaital gain and it was a illegal order. That in the present appeal penalty is being bassed on the whole amount and thus deserves to be quashed.
6. The income tax department on the basis of the said wrong service by affixture has reassessed the I.T. return of year 2009-10 and added total sale consideration of the plot as a income of Rs 11,50,000 as short term capital gain of sale of plot but has not deducted the cost of getting the plot acquired
(purchased) and their development cost incurred subsequently. They have erred in the compliance of section 55 of IT Act. The re-assessment order has mention that cost of the acquisition of the property is "Nil", which could be possible for the plinth level Rajasthan Housing board plot. Althtoujgh this reasssessment has been quashed & accordingly the ITO Warad No 5(1) as AO has issued orders as re-assesssment Nil.
After quashing the Assessment and penalty for non-compliance of notice, the present impunged order deserves to be quashed.
7. That after getting the allotment of said plinth level plot from housing board, ground floor was construction was raised by the deceased Appellant and this fact has been clearly mentioned in the sale deed conveyance deed, map of the housing board also that illegal construction was there at the time of execution of these documents between the assesses and housing board. In the said

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Sushma Sharma vs. ITO construction more that Rs 10 Lac was incurred and as per BSR rates of the Rajasthan Government PWD such construction was of Rs 9,84,531. The plot was sold with heavy financial losses. Thus there was no short term gain to the Assessee & it has been rightly held in the CIT (A) judgements against assessment order That due to faceless hearing.
That in the impunged order during the Appeal the arguments at the time of hearing could be be submitted and it is against natural justice.

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As the assessee did not comply with the notice u/s 148 Idated
15.03.2016 and notice u/s 142(1) dated 14.09.2016, therefore, I have no alternate but to complete. the assessment ex-parte u/s 144 on merits, on the basis of material available on record.
Addition on a/c of unexplained capital Gain:
As per 50C information for the F.Y. 2008-09, the assessee has sold immovable property amounting to Rs. 11,50,000/-, vide registered sale deed dated 23.01.2009 to Sh. Mohal Lal Panchal (purchaser).
To verify the above transaction, information was called for from Sub-