TEJU PARVAT,SANVER vs. ITO-1(1), INDORE

Per Paresh M Joshi, J.M.:

This is an appeal filed by the assessee Under Section 253 of

the Income Tax Act, 1961 (hereinafter referred to as the “Act” for

sake of brevity) before this Tribunal as and by way of Second

appeal under the Act. The assessee is aggrieved by the order

bearing Number ITBA/NFAC/S/250/2024-25/1066033010(1)

dated 26.06.2024 passed by Ld. CIT(A) u/s 250 of the Act which

is hereinafter referred to as the “Impugned order”. The relevant

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Teju Parvat ITA No. 635/Ind/2024 - A.Y.2015-16

Assessment Year is 2015-16 and the corresponding previous year

period is from 01.04.2014 to 31.03.2015.

2.1 That the assessee Shri Teju Parvat did not file his return of

income for Assessment Year 2015-16.

2.2 That the Department of Income Tax was in possession of

information that the assessee had sold immovable properties

worth Rs.97,43,000/- and so also worth Rs.52,67,00/- during

the Assessment Year 2015-16. However no return of income was

filed with the Income Tax Department declaring any gain on sale

of above mentioned properties whose value are depicted above.

2.3 That Department of Income Tax initiated proceedings u/s

147/148 however the assessee remained totally non compliant.

Notice(s) u/s 148, 142(1) were not replied and no required

information was furnished to Ld. A.O. Show cause notice dated

06.03.2023 calling upon the assessee as to why the assessment

order should not be passed u/s 144 of the Act was however

replied on 23.03.2023, 25.03.2023 and 26.03.2023 wherein it

was stated by the assessee that he is a farmer and that he

derives his income from the agricultural activities. With regard to

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sale consideration amount as aforesaid the assessee stated that

he had sold the immovable properties to Shri Manoj Kashyap and

Shri Sawan Kashyap vide sale deed dated 19.06.2014. It was

further stated that both immovable properties were agriculture

land which were 16 Km away from Indore in terms of aerial

distance and 8 Km away from Sanwer in terms of aerial distance.

Both the properties does not fall under the purview of capital

assets within the meaning of Section 2(14) of the Act therefore

consideration amount realised supra were exempted from tax

purview. A google map and a certificate from Patwari was placed

on record but no valid return of income was filed.

2.4 The Ld. Assessing Officer on page 4 of the assessment order

has observed as follows:-

“4. Submission filed by the assessee are duly perused. On perusal of the same it is found that the assessee has filed documentary evidences such as google map and certificate from Patwari in respect of agricultural land. On perusal of the certificate, it is seen that it is just on a plain paper. Hence, the legal authenticity of this letter is not ascertainable. Further it is pertinent to note that credibility of google map cannot be corroborated in absence of valid certificate from competent authority. As such, it could not be established by the assessee that both the lands are not capital assets within the meaning of section 2(14) of the Income Tax Act. Under the circumstances, submission filed by the assessee is not found to be tenable. Also no information is available on record with regard to cost of acquisition or date of acquisition of such lands under reference. The assessee has not filed return also in response to notice u/s 148. Therefore, in view of the facts mentioned above,

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considering total sales consideration amount of Rs. 1,50,10,000/- as undisclosed Short Term Capital Gain an amount of Rs. 1,50,10,000/- is being determined as total income of the assessee. I am also satisfied that the assessee has concealed particulars of income by not filing return of income despite having taxable income. Therefore, penalty proceedings u/s 271(1)(c) of the I.T. Act, 1961 are initiated separately for concealment of income”.

2.5 That total income of the assessee was computed at

Rs.1,50,10,000/- vide assessment order bearing number:

ITBA/AST/S/147/2022-23/1051347126(1) dated 26.03.2023

u/s 147 r.w.s. 144 of the Act which is hereinafter referred to as

the “Impugned Assessment Order”.

2.6 That in the instant case no return of income was filed u/s

139(1) as well as U/s 148 of the Act which fact is recorded in the

impugned assessment order on para 5 which is reproduced

below:-

“5. The assessee has not filed return of income u/s 139(1) for the A.Y. 2015-16 as well as in response to the notice u/s 148. Therefore, the penalty proceedings u/s 271F of the I.T. Act, 1961 for non-furnishing of ITR are being initiated separately for the AY 2015-16”.

2.7 That the assessee being aggrieved by the impugned

assessment order prefers first appeal as provided U/s 246A of the

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Act before CIT(A) who by the “Impugned Order” has dismissed

the appeal of the assessee on grounds specified therein.

2.8 That the assessee being aggrieved by the “Impugned

Order” has filed present second appeal before this Tribunal

against the impugned order and has raised following grounds of

appeal against the impugned order in Form 36 which are as

under:-

“1. On the facts and in the circumstances of the case and in law and without prejudice to above grounds of appeal, the Ld. CIT erred in not accepting the contention of the assessee that addition of Rs.1,50,10,000 to the total income of the assessee as income from Short term capital gain on account of sale of agricultural lands was without appreciation of the facts of the case as the sale deeds submitted by assessee clearly convey that both the lands sold by the assessee are agricultural lands situated in rural area and hence not a capital asset. 2. On the facts and in the circumstances of the case and in law and without prejudice to above ground of appeal, the Ld. CIT erred in not accepting the contention of the assessee that Ld. AO was barred by time in commencing the proceedings u/s. 147 after expiry of 3 years from the end of original assessment year. 3. On the facts and in the circumstances of the case and in law, the Ld. CIT erred in not accepting the contention of the assessee that assessment procedure u/s. 147 deserves to declared as null and void. 4. On the facts and in the circumstances of the case and in law and without prejudice to above grounds of appeal, Ld. CIT erred in not accepting the contention of the assessee that Ld. AO Jurisdiction Indore, has acted without jurisdiction in completing the assessment as the case was to be handled by faceless jurisdiction. 5. The Appellant craves leave to amend, alter, add or delete all or any of the above grounds of appeal”.

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3.1 The hearing in the matter took place before this Tribunal on

17.04.2025 when Ld. AR for and on behalf of the assessee

appeared before us and placed on record of this Tribunal a paper

book pages 1 to 68 and that the same was taken on record along

with written submissions totalling 13 pages. The Ld. AR then

interalia contended before us that the “impugned order” is

illegal, bad in law and not proper. It is in violation of the

principles of natural justice too. The “Impugned Order” should

therefore be set aside by this Tribunal. The core issue in the

instant appeal is whether the assessee is liable to pay capital

gain tax on account of sale of agricultural land as the subject

agricultural land does not fall within the meaning of Section 2(14)

of the Act which defines capital assets. The necessary google

map and certificate of Patwari are proof enough to establish this

fact. Per contra Ld. DR for and on behalf of the Revenue

contended that original cost of acquisition of immovable

properties sold is conspicuously absent in the records of the case

and Ld. A.O too had this handicap. Assessee has remained non-

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compliant even before Ld. A.O besides Ld. CIT(A) hence it would

be just and fair that matter be remanded to Ld. CIT(A) to pass a

fresh order with direction to assessee to place all papers,

documents, credible evidence etc. so that at least first appeal is

disposed off on merits.

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 are of the considered view that in the “impugned order”

at para 3 of Ld. CIT(A) has observed as follows:-

“3. The appellant’s appeal was fixed for hearing on the following dates:

S.No. Date of Notice Date of hearing Remarks 1 13.06.2023 20.06.2023 No reply 2 11.03.2024 18.03.2024 No reply 3 20.03.2024 02.04.2024 No reply 4 15.04.2024 22.04.2024 No reply

There was no compliance to above notices which were sent on the email id. Registered under e-filing portal. Despite given repeated opportunities of being heard, there has been co compliance to the notices. It is apparent that the appellant is not interested in pursuing his appeal. In the absence of any submission from the appellant, the grounds of appeal are decided on merits on the basis of facts available on record.”

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On para 5 Ld. CIT(A) has observed and held as under:-

“5. The Appellant has remained non-compliant during the appellate proceedings and has not provided any concrete evidence relating to the addition made by the AO during the course of assessment, for which the assessee filed an appeal, rebutting the same with various grounds of appeal. Thus the appellant has not been able to controvert the stand taken by the Assessing Officer during the Appellate proceedings. The law aids those who are vigilant, not those who sleep upon their rights. This principle is embodied in the well-known dictum, "VIGILANTIBUS NON DORMIENTIBUS JURA SUBVENIUNT". Therefore, the undersigned sees no reason to interfere with the orders of the Assessing Officer. Thus, the appeal raised by the appellant is dismissed”.

Basis above findings of Ld. CIT(A) we are of the considered

opinion basis paper book and written submission placed on

record before us that it would be just, fair and convenient that all

these materials, papers, documents suitably be placed before

CIT(A) in a manner known to law so that Ld. CIT(A) can adjudge

and adjudicate at least first appeal of the assessee on meritorious

grounds by passing a reasoned and speaking order by taking into

consideration entire gamut of case.

4.4 We are also of the considered opinion that assessee may

place on record before CIT(A) credible evidence worth credence in

support of plea that agricultural immovable property does not fall

within the meaning of Section 2(14) consequently not exigible for

any tax. With regard to certification of Patwari we feel that such

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certificate should be on government letter head instead of plain

paper leaving no doubt before tax authorities. It should bear

government seal, signature and designation of designated local

revenue authority. With regard to issue of municipal limit

necessary certificate too should be placed by the assessee of

competent authorities preferably Town & Country Planning

Authority evidencing the aerial distance from municipal limits

and further stating that immovable properties are outside

municipal limit of any development plans. The assessee should

take steps to bring on record original cost of acquisition of

immovable properties too. The aforesaid guidelines are given by

this Tribunal with a view to adjudge and adjudicate first appeal

on merits by following due process of law and if assessee so

desires.

5.1 In the above factual back drop the Impugned order is set

aside as and by way of remand back to the file of CIT(A) to pass a

fresh order on merits after giving full and complete opportunity to

assessee. We hope and trust a suitable order after due process of

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law would be passed as expeditiously as possible preferably

within six months from date of receipt of this order.

5.2 Appeal of the assessee is allowed for statistical purpose.

Order pronounced in open court on 22.04.2025.

Sd/- Sd/-

(SMT. ANNAPURNA GUPTA) (PARESH M JOSHI) ACCOUNTANT MEMBER JUDICIAL MEMBER

Indore िदनांक/ Dated : 22/04/2025 Dev/Sr. PS

Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order COPY Senior Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore

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