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Income Tax Appellate Tribunal, DELHI BENCH : SMC : NEW DELHI
Before: SHRI R.K. PANDA
The above two appeals by the assessee are directed against the separate orders dated 11th January, 2018 of the CIT(A)-12, New Delhi, relating to Assessment Year 2008-09. While CIT(A) sustaining various additions made by the Assessing Officer, relates to the order of the CIT(A) confirming the penalty levied by the Assessing Officer.
Facts of the case, in brief, are that the assessee is an individual and was a co- owner having 1/8 share of property from 646/2, Sawan Park, Ashok Vihar, Delhi. An irrevocable special power of attorney dated 25th July, 2007 was executed between Shri Satish Kumar Bhatnagar and co-owners of the property for Rs.2 crores. The transaction for the sale of the said property was completed in the F.Y. 2007-08. The Assessing Officer reopened the assessment by issuing notice u/s 148 to tax the amount received by the co-owners as sale consideration. Since there was no response from the side of the assessee to the various statutory notices issued by the Assessing Officer from time to time, the Assessing Officer, in the order passed u/s 144/147 of the Act, determined the taxable income at Rs.13,85,173/- wherein he estimated the normal income of the assessee at Rs.1,10,000/- and long-term capital gain at Rs.12,75,173/-.
Before CIT(A), the assessee, apart from challenging the addition on merit also challenged the validity of the reassessment proceedings. However, the ld.CIT(A) dismissed both the grounds and decided the appeal against the assessee.
Aggrieved with such order of the CIT(A), the assessee is in appeal by raising the following grounds:-
1. “That the order of Ld. AO and Ld. CIT(A) is bad in Law and against the facts and circumstances of the case.
2. That the Ld. AO erred in invoking the provisions of section 148. 3. That Ld. AO erred in not issuing the notices at correct address of the Appellant which makes the assessment null and void. 4. That none of the notices u/s 148 or notices u/s 142(1) was served on the 2 assesse.
5. That Ld. CIT(A) erred in ignoring the fact that Ld. AO has make an addition without application of mind.
6. That the Ld. AO and Ld. CIT(A) erred on the facts of the case and make the addition without any application of mind.
7. That the Ld. CIT(A) erred in sustaining the addition made by the Ld. AO amounting Rs. 12,75,173/-.
8. That Ld. AO and Ld. CIT(A) also erred in not following various judgments of jurisdictional High Court and ITAT.
That the appellant carves leave to add, alter, modify or delete any of the ground of appeal.”
The ld. counsel for the assessee, at the outset, filed copy of the assessment order in the case of one of the co-owners and submitted that the Assessing Officer in the said order has accepted the returned income without making any addition. On a pointed query by the Bench as to what has happened to the other co-owners, neither the assessee nor the ld. DR could throw any light. It is also discernible from the paper book that the case is pending before the Hon'ble Delhi High Court. Considering the totality of the facts of the case and considering the fact that the Assessing Officer in the case of one of the co-owners has not made any addition on account of capital gain and since it is not known as to what has happened in the case of other co-owners, therefore, I deem it proper to restore the issue to the file of the Assessing Officer with a direction to adjudicate the issue afresh, after giving due opportunity of being heard to the assessee. The Assessing Officer shall decide the issue as per fact and law. I hold accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes.
The assessee in his grounds of appeal has challenged the order of the CIT(A) in confirming the levy of penalty of Rs.2,88,955/- u/s 271(1)(c) of the IT Act. After hearing both the sides and considering the fact that the quantum appeal has been set aside to the file of the Assessing Officer as per the findings given in the preceding paragraphs, the penalty levied by the Assessing Officer is not sustainable, therefore, the penalty so levied by the Assessing Officer and sustained by the CIT(A) is deleted. However, the Assessing Officer is at liberty to initiate fresh penalty proceedings after completing the assessment. The appeal filed by the assessee is accordingly allowed.
In the result, filed by the assessee is allowed. The decision was pronounced in the open court on 15.03.2019.