Loading judgment…
Facts
The assessee is aggrieved by an assessment order and the subsequent order of the CIT(A) which dismissed their appeal. The assessee had not filed a return of income initially, and a return filed later was considered invalid by the Assessing Officer due to non-compliance. The CIT(A) also dismissed the appeal citing non-compliance and lack of evidence.
Held
The Tribunal noted that both the assessment order and the CIT(A)'s order were ex-parte and not based on merits. The Tribunal found that the cost of acquisition for Long Term Capital Gain was not considered. Therefore, the Tribunal set aside the impugned order and remanded the case back to the Assessing Officer for de novo assessment.
Key Issues
Whether the lower authorities' orders were passed ex-parte and without considering the merits of the case, particularly regarding the calculation of Long Term Capital Gain.
Sections Cited
253, 1961, 147, 144, 144B, 139(1), 148, 142(1), 246A, 250
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, INDORE BENCH, INDORE
the order bearing Number ITBA/NFAC/S/250/2024- 25/1070754058(1) dated 29.11.2024 passed by the Ld. CIT(A) u/s 250 of the Act which is hereinafter referred to as the “Impugned order”. The relevant Assessment Year is 2016-17
Page 1 of 8 and the corresponding previous year period is from 01.04.2015 to 31.03.2016.
FACTUAL MATRIX 2.1 That as by way of an Assessment Order made u/s 147 r.w.s. 144/144B of the Act, the total income of the assessee was computed and assessed at Rs.1,10,09,368/- exigible to tax.
No return of income was filed u/s 139(1) of the Act. Notice u/s 148 of the Act is dated 26.03.2021 of the Act. The assessee filed return for the first time on 25.01.2022 showing gross total income of Rs.9,368/-. Refund of Rs.1,10,000/- was claimed.
That during the course of the assessment proceedings no details were furnished by the assessee in response to the notice(s) u/s 142(1) of the Act. That the return filed by the assessee in compliance to notice u/s 148 of the Act is non-est because the assessee did not file the required return within the stipulated time of 30 days as provided in the notice u/s 148 of the Act.
Therefore the Ld. A.O in the assessment order treated the Return of Income as invalid return. The Ld. A.O recorded that since no response was received from the assessee in response to all such notice(s) u/s 142(1) of the Act and notice u/s 148 of the Act draft
Page 2 of 8 assessment order along with show cause notice dated 22.03.2022 was issued to the assessee but no response was received. The Ld. A.O therefore proceded to adjudicate the case and has held as under:-
“During the year under assessment the assessee was made an agreement with M/s. Mangalam Builders, (Shri Anil Jain) 49 Hotwada Bakhatawar Marg, Dhar, Indore, Madhyapradesh. The registration was done on 18.02.2016, vide registration no. MP179152016A1090427, where consideration value recorded of Rs.1,07,00,000/-and stamp duty of Rs. 7,84,750/- was recorded. After going through the deed agreement between the assessee and M/s. Mangalam Builders it is also seen that registration and stamp department, Madhya Pradesh has charged duty on such transactions amounting Rs. 1,10,000/- as Municipal duty(Nagar Palika Duty) and administrative stamp duty of Rs. 5,51,000/- for the said registration, vide e-stamp code no. 01011718022016006403.
It was also learned from the said agreement deed that the land survey no is 580 peki, rukba-0.308 Hector, Lagan-As per Revenue record. The said land is a urban agricultural land (Sadar agri land), as recorded in the said deed.
After a careful consideration of the facts of the case and looking to the information available on records, I hold that the said land is a urban agri- land situated within 08 kms from the local authority for that Municipal duty has been charged on such land and the assessee is liable to tax under the head Long Term Capital Gain on sale of such land. But the assessee has failed to disclose the said capital gain by filing any return of income. The calculation of capital gain on sale of urban land as shown as under- Income from Other Sources Rs. 9,368/- Total Sale consideration as per agreement -Rs.1,10,00,000/- Long Term Capital Gain- Rs. 1,10,00,000/- Assessed Income- Rs. 1,10,09,368/-“
That the aforesaid assessment order is hereinafter referred to as the “impugned assessment order”.
2.2 That the assessee being aggrieved by the aforesaid “impugned assessment order” prefers first appeal u/s 246A of the Act before the Ld. CIT(A) who by the “impugned order” has dismissed the 1st appeal of the assessee on grounds and reasons stated therein. The Ld. CIT(A) has held as under in para 4.4 & 5 as follows:-
“4.4 Considering the above facts and the records available, it is established that the appellant was provided many opportunities of being heard. However, the appellant has remained noncompliant. No material fact has been brought on record in support of the grounds of appeal or to rebut the findings of the Assessing Officer (AO). The appellant inspite of being given ample opportunities during appellate proceedings, failed to offer any explanation/supporting documents in respect of grounds of appeal raised by the appellant. I have carefully considered the assessment order and since the appellant has not furnished any documentary evidence in support of the grounds of appeal filed by the appellant, I do not find any reason to interfere with the order of the AO. Hence, the Assessment Order of the AO stands confirmed. Accordingly, all the grounds of appeal taken by the appellant are dismissed.
5. In result, the appeal is dismissed”.
3. Record of Hearing 3.1 The hearing in the matter took place before this Tribunal on 30.07.2025 when the Ld. AR for and on behalf of the assessee appeared and interalia contended that both the orders of the Page 4 of 8 lower authorities i.e. the Ld. A.O & Ld. CIT(A) are ex-parte orders.
In so far as the “impugned order” of Ld. CIT(A) is concerned there is no discussion on merits of the case. In so far as the “impugned order” of Ld. CIT(A) is concerned there is no discussion on merits of the case. Our attention was invited to internal page 11 of the “impugned order” which is as under:-
“The appellant has requested for adjournment on 13.11.2024. It is observed that already five notices have been received by the appellant which he chose not to reply. The syndrome of "Tarikhpe Tarikh" should not be encouraged as proclaimed recently by Hon'ble Supreme Court. Adjournments occur excessively and lead to cases dragging on for years. This places heavy financial burden on those involved and goes against the essential principle of prompt justice for citizens.”
3.2 In so far as the “impugned assessment order” was concerned it was stated that while computing the total income exigible to tax particularly Long Term Capital Gain the calculation is done without taking in to consideration of the cost of acquisition.
3.3 The Ld. DR appearing for and on behalf of the revenue interalia stated that he concurs with the view and submissions of the Ld. AR that both the “impugned assessment order” and the “impugned order” are ex-parte in nature. The Ld. CIT(A) in the Page 5 of 8 “impugned order” has not taken in to consideration of merits of the case. Return was not filed u/s 148 of the Act as per the law and procedure established. It was submitted very fairly that the “impugned order” should be set aside and matter be relegated back to the file of Ld. A.O who should make proper assessment after considering the facts and figures to the best of his ability and in accordance with law.
Observations,findings & conclusions.
4.1 We now have to decide the legality, validity and the proprietary of the “Impugned Order” basis records of the case and rival contentions canvassed before us.
4.2 We have carefully perused the records of the case.
4.3 We basis records of the case and after hearing and upon examining the contentions are of the considered opinion that the “impugned order” is an ex-parte one wherein total 5 notices of opportunities were given to the assessee and in majority of them there are no compliance by the assessee. On one occasion adjournment was sought which was granted. Finally in the 5th opportunity notice when adjournment was sought the same was not considered by the Ld. CIT(A). The Ld. CIT(A) was perforced to Page 6 of 8 make the remark as aforesaid (supra) in his impugned order.
We notice and observe that it is a very unfortunate situation that both the orders of the lower authorities are not merit based.
We are of the considered opinion that the income of the assessee must be assessed and computed on merits by both the authorities below and that income must be computed on real time basis exigible to tax. In this regard we also hold that assessee too should be a responsible citizen and must cooperate with the revenue. In the instant case we find that the assessee was non compliant.
4.4 We notice that while assessing the total income of the assessee the cost of capital asset has not been taken into consideration as the assessee in law is entitled to a set off on cost in calculation of Long Term Capital Gain with indexation benefit and other benefits too if any.
4.5 In the premises drawn up by us, we set aside the “impugned order” and remand the case back to the file of Ld. A.O on denovo basis. Needless to state that assessee to cooperate with the department and to provide them all material information, papers
Page 7 of 8 and documents so that income is computed and assessed according to law.
Order 5.1 In view of aforesaid “impugned order” is set aside as and by way of remand on denovo basis to Ld. A.O.
5.2 In the result, the appeal of the assessee is allowed for statistical purpose.
Order pronounced in open court on 31.07.2025.