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Facts
The assessee sold a property and declared a sale consideration of Rs. 28,00,000, while the Sub-Registrar valued it at Rs. 48,37,866. The AO initiated reassessment proceedings under Section 147. The assessee claimed deductions u/s 54, 80C, and 24(b) for which the AO made additions due to lack of evidence.
Held
The Tribunal condoned the one-day delay in filing the appeal. The Tribunal found that the assessee was not provided adequate opportunity before the lower authorities and admitted additional evidence. The matter was restored to the AO for fresh adjudication.
Key Issues
Whether the assessee was denied adequate opportunity of being heard by the lower authorities and if additional evidence should be admitted. Whether the disallowances made by the AO were justified.
Sections Cited
147, 148, 143(3), 250, 133(6), 142(1), 131, 44AD, 143(2), 50C, 54, 80C, 24(b), 271(1)(c), 29
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA. No. 1203/JPR/2024
fu/kZkj.k o"kZ@Assessment Years : 2012-13 Gyan Chand Khandelwal cuke The Addl/CIT(A)-8, 52-N-7 Pratap Nagar Rajasthan Vs. Delhi. Housing Board Behind Pratap Plaza, Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ANFPK0529G vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri K.L. Moolchandani, I.T.P. jktLo dh vksj ls@ Revenue by : Shri Gautam Singh Choudhary, JCIT a lquokbZ dh rkjh[k@ Date of Hearing : 05/03/2025 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 21/03/2025 vkns'k@ ORDER PER: DR. S. SEETHALAKSHMI, J.M. This appeal is filed by the assessee aggrieved from the order of the Ld. Addl/JCIT(A)-8, Delhi dated 24.07.2024 for the assessment year 2012-13, which in turn arise from the order dated 25.12.2019 passed under section 143(3) r.w.s. 147 of the Income Tax Act, 1961 [hereinafter referred as “Act” ] by the AO. 2.1 At the outset of hearing, the Bench observed that there is delay of 1 day in filing of the appeal by the assessee for which the ld. AR of the “With reference to the aforementioned appeal proceedings the Appellant hereby submits that for the assessment year 2012-13, I filed a second appeal before H'ble ITAT., Jaipur SMC Bench, Jaipur on 23.9.2024 against the Appeal Order passed under Section 250 of the Act on 24.7.2024, which I reviewed on 26.07.2024. Under honest belief, 1 computed a 60-day limitation period for filing the second appeal from the date of viewing the Appeal Order, which was 26.7.2024. However, the H'ble Bench informed it that the limitation period would commence on the date the order was issued, i.e. on 24.7.2024. Due to a genuine mathematical error in counting the limitation period, there was a one-day delay in presenting the Appeal to the Honorable Bench within the stipulated limitation period of 60 days. Due to such honest and genuine circumstances, I was unable to file the Appeal within the stipulated restriction period of 60 days. As a result, I respectfully request that the Honorable Bench excuse the delay in filing the Second Appeal in the interest of equity and natural justice and admit it for review on the merits. We deeply regret the one-day delay in filing the Second Appeal. I have filed an affidavit under oath verifying the aforementioned facts and contentions. Having considered the above facts, your honors may appreciate that the Appellant was prevented by honest and reasonable cause from filing the present appeal. Your honors are therefore requested to kindly condone the delay and admit the same in the interest of equity and natural justice.”
To this effect, the assessee has filed an affidavit as to the condonation of delay in filing the appeal.
2.2. During the course of hearing, the ld. DR objected to assessee’s application for condonation of delay and prayed that Court may decide the issue as deem fit and proper in the interest of justice.
Gyan Chand Khandelwal 2.3 We have heard the contention of both the parties and perused the materials available on record. The prayer as mentioned above by the assessee for condonation of delay of 01 days has merit for the reason that there was miscommunication resultantly delay and we concur with the submission of the assessee. Thus the delay of 01 days in filing the appeal by the assessee is condoned in view of the decision of Hon’ble Supreme Court in the case of Collector, land Acquisition vs. Mst. Katiji and Others, 167 ITR 471 (SC) as the assessee is prevented by sufficient cause.
3. The assessee has raised following grounds:- “1. On the facts and in the circumstances of the case, the Authorities Below have factually and legally erred in making addition of Rs.7,77,941/- by disallowing the cost of Improvement in the new asset for claiming deduction u/s 54 of the Act in absence of supporting details and documents, without appreciating the fact that the appellant was prevented by reasonable and honest reasons from furnishing these details & documents at the given point to time. In fact, at the given point of time, the appellant was bed-ridden and was unable to make compliance due to acute depression and ill health. In the interest of equity and natural justice, it would be equitable to admit the supporting details at this stage to decide the appeal. Having considered the supporting details and documents, the addition as made by the Authorities Below deserves to be deleted summarily.
2. On the facts and in the circumstances of the case, the Authorities Below have factually and legally erred in disallowing the deductions of Rs.29,853/-& Rs.21,143/-u/s 80C and 24(b) of the Act without appreciating the facts of the case in right perspective. Thus the additions so made are factually and legally incorrect and the same deserve to be deleted summarily.
3. The appellant craves the right to add amend and alter the grounds on or before the hearing.”
Gyan Chand Khandelwal 4. The brief facts of the case are that during Financial year 2011-12, assessee had sold a property and declared its sale consideration at Rs. 28,00,000/- in his return of income filed u/s 139 on 14.10.2012 as against Rs. 48,37,866/- taken by the Sub-Registrar-VIII. Jaipur for stamp duty purposes. Thus, the value of sold property within the meaning of section 50C of the Act is Rs. 48,37,866/-. Thus, prima facie it was evident that the assessee had understated the sale consideration by Rs. 20,37,866/- by virtue of section 50C of the Act due to which capital gains of Rs. 20,37,866/- had escaped assessment. To verify the above fact, verification u/s 133(6) was also made vide letter dated 12.2.2019 addressed to the assessee, but no response was received from the assessee. In such circumstances, it was apparent that difference amount of Rs. 20,37866/- (4837866-2800000) has escaped assessment. Hence, proceeding u/s 147 was initiated and notice u/s 148 was issued on 23.3.2019 after recording reasons and getting approval of the competent authority. The same remained non-responded. Further, notice u/s 142(1) dated 11/7/2019 along with questionnaire was issued and served which also remained non- responded. In light of the repeated non-compliance by the assessee as discussed above and considering that the case is barred by limitation on 31.12.2019, summon u/s 131 of the Act was issued on 06.11.2019 and served on the assessee personally through the AO office inspector, Sh.
Gyan Chand Khandelwal Abhijeet Kumar Banerjee. In response, assessee Sh. Gyanchand Khandelwal appeared on 19.11.2019. His statement was also recorded which are lying on record.
4.1 Thereafter, return of income was filed electronically on 19.11.2019 vide acknowledgement no. 257655270191119 declaring total income of Rs. 2,67,530/- from business u/s 44AD and interest income. Notice u/s 143(2) of the Act was issued on 21.11.2019. In response, Sh. Manoj Vijay, CA/AR of the assessee along with Sh. Gyan Chand Khandelwal, assessee appeared and submitted various documents including copy of Return of Income, computation of Income, copy of sale and purchase deed, copy of loan installment certificate and copies of LI premium collection receipts etc. During the year under consideration, the assessee was running o medical store in Village Dutwas, Tonk, and has also been involved in job work of property-dealing.
4.2 The assessee sold a residential property on 5.3.2012 situated at 430, Navdurga Colony, JLN Marg, Jaipur to Sh. Rambabu Badaya and Smt. Savita Badaya for face value of Rs. 28 lacs whose DLC rate was estimated by the Sub Registrar-8, Jaipur at Rs. 48,37,866/- while registering the document Copy of sale deed is lying on record. The property was purchased on 22.3.2003 by the assessee for a consideration Gyan Chand Khandelwal of Rs. 10,98,780/- as reflecting in the copy of its purchase deed placed on record. In the revised return filed u/s 148, assessee has shown the deemed value of sale u/s 50C of the Act at Rs. 48,37,866/- against which indexed cost of acquisition of Rs. 19,29,625/- has been claimed. Against resultant amount of Rs. 29,08,241/-, deduction u/s 54 of the Act at Rs. 29,08,241/- has been claimed for investment in purchase of house property at 52N-07 Pratap Nagar, Jaipur on 25.7.2011 for Rs. 20 lacs excluding registration charges and stamp duty of Rs. 1,30,300/- After claiming this amount, nil capital gain has been shown. On perusal of purchase deed of above property for which deduction u/s 54 has been claimed, it is gathered that purchase value including registration charges and duty shown in the deed is only Rs. 21,30,300/-whereas assessee has claimed it at Rs. 29,08,241/- for which, AR of the assessee vide order sheet entry dtd. 3.12.2019 was asked to explain and also to show cause as to why the amount of deduction should be worked out on the basis of actual amount of Rs. 21,30,300/-In response, vide letter filed on 13.12.2019, it was explained by the assessee that additional cost has been claimed on account of improvement cost incurred after purchase being the house skeleton. However, no documentary evidence in support as well as source thereof was explained and filed. Further, on perusal of sale deed, it is also seen that there is no mention in the deed that the said flat is skeleton as
Sale consideration as shown in ITR u/s 148 4837866 2. Less Indexed cost of acquisition as claimed 1929625 3. Less: Deduction u/s 54 2130300 4. LTCG(1+2+3+) 777941 In view of above, addition of Rs. 7,77,941/- was made to the total income on account of excess claim of deduction u/s 54 of the Act. Penalty proceedings u/s 271(1)(c) of the Act are also initiated for furnishing inaccurate particulars of income.
4.3 The assessee has claimed Rs. 100000/- as deduction u/s 80C, consisting of expenses on Life Insurance of Rs. 96846/- as well as House Loan repayment. But it is seen that proof of only Rs. 60,000/- of the Life Insurance premium paid has been submitted. Further, it has been seen that during the year, only Rs. 10,147/- has been paid towards repayment of the principal amount of Loan, as reflecting in the Certificate of Loan installment of LIC Housing Finance Limited, which is placed on record. Therefore, total allowable deduction comes at Rs. 70,147/- (Rs. 60,000 Rs 10147), and the difference amount of Rs. 29,853/- (1,00,000-70147) is 4.4 In the computation of income, the assessee has claimed an amount of Rs. 98,671/- as interest u/s 24(b), being the interest part of the loan EMIs paid during the year under consideration. But as per the Loan installment certificate of LIC HFL, it is clear that only Rs. 77,528/- has been made towards Interest on Home Loan. Therefore, the difference of Rs. 21,143/-(98671-77528) is hereby disallowed u/s 24(b) and added back to the total income of the assessee for the year under consideration.
Aggrieved from the order of AO, the assessee preferred an appeal before the ld. CIT(A). Apropos to the grounds so raised the relevant finding of the ld. CIT(A) is reiterated here in below:-
“7.1 Finding on Ground of Appeal No. 1, 2& 3 7.1.1. In absence of any written submission from the appellant, these grounds of appeal are being decided on the basis of facts of the case and available material on record. 7.1.2. As per facts of the case appellant in his return filed in response to notice u/s 148 computed capital gains at Rs. 29,08,241/- taking sale consideration of residential property sold as the value adopted by stamp duty authority. Further, deduction u/s 54 was claimed against the total amount of capital gains of Rs. 29,08,241/- on account of purchase of another residential property. Another residential property was purchased for a consideration of Rs. 20,00,000/- with additional expenditure of Rs. 1,30,000/- incurred on account of registration and stamp duty payment. Cost of acquisition thus worked out to Rs. 21,30,300/-. Appellant claimed total amount of Rs. 29,08,241/- as deduction Gyan Chand Khandelwal u/s 54 with additional amount of Rs. 7,77,941/- claimed as part of purchase consideration on account of cost of improvement. 7.1.3. AO disallowed appellant's claim of cost of improvement on account of lack of documentary evidence substantiating such claim and recomputed amount eligible as deduction u/s 54 as Rs. 20,30,000/-Deduction u/s 54 was restricted to Rs. 20,30,000/- and remaining excess claim of Rs. 7,77,941/- was added back to the income of appellant. 7.1.4. Appellant, in grounds of appeal raised by him has challenged such addition citing reasons that proper opportunity of being heard was not provided by AO as adequate time was not allowed for furnishing necessary evidence in support of claim of cost on improvement. 7.1.5. As seen from assessment order, Show cause notice proposing such addition was issued to the appellant on 03.12.2019, to which appellant replied on 13.12.2019. However, no documentary evidence was adduced to the submission. Assessment order was finally passed on 25.12.2019. 7.1.6. Appellant, during the present appellate proceedings had the opportunity of furnishing the necessary evidences before me but he failed to do so despite availability of more than reasonable amount of time. Under such circumstances, appellant's plea of not being afforded reasonable opportunity of being heard stands infructuous. 7.1.7. Under the facts and circumstances of the case, I find no reason to intervene and decide against the action of the AO in disallowing the cost of improvement for want of evidence. Grounds of Appeal No. 1, 2& 3 are thus dismissed. 7.2 Finding on Ground of Appeal No. 5 7.2.1. In absence of any written submission from the appellant, this grounds of appeal is being decided on the basis of facts of the case and available material on record. 7.2.2. As per facts of the case appellant in his return filed in response to notice u/s 148 claimed an amount of Rs. 1,00,000/- as deduction u/s 80C. Appellant claimed an amount of Rs. 96,846/- as expenses on life insurance premium and also claimed expense incurred on house loan repayment. After verification of documents furnished by the appellant, it was seen by the AO, that evidence regarding payment of life insurance premium amounting to Rs. 60,000/- only was submitted by the appellant. Further, as per loan certificate issued by the loan disbursing agency viz LIC HFL, it was seen that an amount of Rs. 10.147/- was paid towards repayment of principal amount of loan. Based on Gyan Chand Khandelwal the submitted evidence. AO allowed deduction claim of Rs. 70,147/- (Rs. 60,000/- + Rs. 10,147) and disallowed the balance claim. 7.2.3. Also, appellant claimed an amount of Rs. 98,671/- as interest u/s 24(b), however, as per the loan certificate such amount stood at Rs 77,528/-. Based on the documentary evidence. AO disallowed the excess claim. 7.2.4. Appellant, in grounds of appeal raised by him has challenged such disallowances, however, no submission or necessary evidence in support of such ground of appeal has been submitted.. 7.1.6. Appellant, during the present appellate proceedings had the opportunity of furnishing the necessary evidences before me for the balance amount of claim which has been disallowed by the AO, but he failed to do so despite availability of more than reasonable amount of time. 7.1.7. Under the facts and circumstances of the case, I find no reason to intervene and decide against the action of the AO in disallowing the excess claim of deduction us 80C and u/s 24(b) which are not substantiated with documentary evidence Ground of Appeal No. 5 is thus dismissed. 7.3 Ground of Appeal No. 4 & 6 do not require any separate adjudication.
8. In the result, appeal of the appellant is dismissed.”
6. As the assessee did not receive any favour from the appeal filed before Ld. CIT(A). The present appeal filed against the said order of the Ld. CIT(A) before us on the grounds as reiterated here in above. To support the grounds so raised the Ld. AR of the assessee has placed reliance on the written submission which is extracted herein below:-
“While granting adjournment on last hearing on 20th January, 2025, the honorable Bench had pointed out delay of one day in filing the appeal before the honorable Bench. In this regard, the Appellant humbly submit that the Appellant was under bona-fide belief that the limitation period of filing the Appeal would commence from the date of viewing the Appeal order on the site but such limitation period is to commence from the date of Order only. In the circumstances there was delay of one day in filing the said Appeal due to hones t calculation mistake in counting the limitation period. The Appellant has submitted an affidavit on oath confirming this fact. Having considered such sworn Affidavit, your honors are requested to kindly Gyan Chand Khandelwal condone the delay and admit the present appeal in the interest of equity and natural justice.
Now coming to the facts of the case. The Appellant is a Small Timer and a petty dealer in Medicines etc. having nominal income of Rs.2, 67,530/- during the year under consideration. The Re-assessment proceedings were however initiated u/s 147 of the Act on 23.3.2019 by invoking the provisions of Section 50C of the Act as the immovable property shown sold for Rs.28,00,000/- was valued by the Sub Registrar at Rs.48,37,866/- for the purpose of Stamp Duty /-. During the course of re-assessment proceedings u/s 147/148, the sale proceeds of the said property was taken at Rs.48,37,866/- as per Distt. Valuation Authorities and after claiming deduction u/s 54 of the Act, on account of the cost of new asset acquired and the cost of improvement made in the newly acquired asset, 'Nil capital gain was shown. In the re-assessment proceedings however, the department had allowed the cost of the new asset at Rs.21,30,300/- only. The cost of improvement in the new asset for Rs.7.77,941/- was not allowed for want of the supporting details of the improvement cost incurred in the new asset and the sources thereof as mentioned at page no.4 vide para 7.3 of the Re- assessment Order. Accordingly, the deduction of Rs.7,77,941/- claimed u/s 54 of the Act was disallowed and the addition of equal amount of Rs.7.77,941/- was made.
In fact, at the time of re-assessment proceedings, the Id. AO appeared to be satisfied with the working of the Nil capital gain as no further details or query was made in support of such working of the 'Nil' capital gain as evident from the body of the re-assessment order itself. It was after the receipt of the Re-assessment Order only, the Appellant could know about the reservations of the Id. AO regarding 'Nil' working of the Capital Gain.
In Appeal proceedings also, no opportunity was allowed to the Appellant to submit these details and documents etc. as affirmed by the Appellant on oath as per enclosed Affidavit. In the circumstances, the required details and documents are being submitted as Additional Evidences within the meaning of Rule 29 of ITAT, Rules, 1963. For the purpose, a request letter Under Rule 29 of ITAT, Rules 1963 is submitted separately along with an Affidavit of the Appellant to this effect with a request to kindly admit these details and documents in the interest of equity and natural justice and decide the present appeal accordingly on the basis of these details and documents.
3. Having considered these details and documents, your honors would appreciate that the deduction claimed u/s 54 of the Act for Rs.7,77,941/-.is legally and factually maintainable. As evident from the Additional Evidences submitted now, your honors would appreciate that the cost of improvement of Rs.7.77.941/-and its sources thereof stand fully and properly verifiable and accounted for in the books of the Appellant and also confirmed by M/s Laxmi Furniture as per enclosed confirmation letter. On Gyan Chand Khandelwal the face of such documented details and evidences, the cost of improvement made in the new asset and sources of such cost stand satisfactorily explained, warranting no addition. Accordingly, the addition of Rs.7,77,941/-made by the Authorities Below deserves to be deleted.” 6.1 The ld. AR for the assessee also filed additional evidences under Rule 29 of ITAT Rules, 1963 reads as under:-
“With reference to the above request, the following facts are brought on record for kind & sympathetic consideration of the Honorable Bench in the interest of equity and natural justice: 9. That the Appellant had been regularly assessed to Income Tax for last many years.
That for the Asstt. Yr. 2012-13, an Appeal was filed with the CIT (Appeals) on 31.12.2019. The appeal so filed for this year was initially fixed for hearing on 24.1.2021 & 27.12.2022 respectively. Unfortunately due to ill health, the Appellant was unable to attend such hearings on the given dates as per copy of Affidavit submitted herewith.
Thereafter the appeal was never taken up for hearing for past 19 months before passing the Appeal Order on 24.7.2024. Thus immediately before passing the Appeal order on 24.7.2024, no opportunity what-so-ever was allowed to the Appellant in past 19 months to submit the supporting evidences and details regarding cost of improvement and renovation etc. in the new asset for claiming deduction u/s 54 of the Act. This fact is evident from the body of the Appeal Order itself.
That in absence of any hearing or any opportunity allowed by the Office of CIT (Appeals) immediately before passing the Appeal Order on 24.7.2024. In the circumstances, the Appellant was prevented by honest and bona-fide reasons from submitting the required details and evidences etc. in support of the cost of improvement and renovation etc. in the new asset for claiming deduction u/s 54 of the Act in the Appeal Proceedings before the Id. CIT (Appels).
Having considered such genuine and honest reasons, your honors are requested to kindly admit the Additional Evidences under Rule 29 of ITAT, Rules, 1963 in the interest of equity and natural justice which are very relevant Gyan Chand Khandelwal and necessary to decide the core point at issue in the Appeal. In disbursing the justice, the Judicial Authorities have been taking liberal view consistently. 14.In support of the above facts, an affidavit duly sworn by the Appellant on oath is submitted herewith for your kind perusal and record.”
During the course of hearing, the ld. AR for the assessee prayed that the Ld. CIT(A) and the AO has passed the ex-parte order and the assessee was not provided adequate opportunity of being heard. Thus, the assessee may be provided one more opportunity to advance his arguments/submissions before the ld. AO in the interest of equity and justice and prayed for admitting the additional evidences.
Per contra, Ld. DR objected to the prayer of the assessee and submitted that even the assessee did not represent case before the ld. AO and therefore, in that case the Bench feels the matter may be restored to the file of the Assessing Officer.
We have heard both the parties and perused the materials available on record. The bench noted from the order of ld. CIT(A) that the appeal of the assessee was dismissed by the ld. CIT (A) for want of non- prosecution of the appeal. The assessee did not appear or filed any reply to the notices which were issued by the ld. AO during the assessment proceedings, finally the assessee completed ex-parte order. However, the Bench feels that the assessee because of any reasons Gyan Chand Khandelwal could not advance his arguments/submissions to contest the case before the lower authorities and the ld. AR for the assessee also prayed to give one more opportunity to submit the evidences concerning the issue in question, with grounds so raised by the assessee, to decide it afresh by providing one more opportunity of hearing with admitting the additional evidence, however, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings before the ld. AO.
10. Before parting, we may make it clear that our decision to restore the matter back to the file of the ld. AO shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by the ld. AO independently in accordance with law.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Court on 21/03/2025.