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Income Tax Appellate Tribunal, BANGALORE BENCH ‘B’
Before: SHRI A.K GARODIA & SHRI PAVAN KUMAR GADALE
PER SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER :
The assessee has filed appeals against the different orders in the ITA No.2196/Bang/2018 is appeal against the order of the CIT(A), Bengaluru passed u/s 143(3) and 250 of the Income-tax Act and ITA No.2195/Bang/ 2018 is against the order of CIT(A) passed u/s 154 and 250 of the Act.
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We take up the assessee’s appeal No.2196/Bang/2018 where there is a delay in filing the appeal before the CIT(A). The ld AR submitted that there is a delay of 67 days in filing the appeal before the CIT(A) and the CIT(A) has not condoned the delay. The ld AR emphasized that the delay is not wanton or willful but due to certain bonafide impression in respect of valuation. We found that the CIT(A) has dismissed the appeal without condoning the delay but considering the facts and submissions made by the ld AR, we consider it appropriate to condone the delay and for which the ld DR has no serious objection. Accordingly, we condone the delay in filing the appeal before the ld CIT(A). Since the appeal filed by the assessee before the CIT(A) was dismissed for delay in filing the appeal and the CIT(A) has not dealt on the merits, therefore, we restore this dispute issue to the file of the CIT(A) to adjudicate afresh and the assessee shall cooperate in submitting the information and details expeditiously for early disposal of the appeal and allow the ground of assessee for statistical purpose.
In the result, the assessee appeal is allowed for statistical purposes.
We now take up the appeal No.2195/Bang/2018
The assessee has raised the following grounds of appeal:-
“1. The order of the learned Commissioner of income- tax [Appeals] passed under Section 250 of the Act in so
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far as it is against the Appellant is opposed to law, weight of evidence, probabilities, facts and circumstances of the Appellant's case. 2. The Appellant denies itself liable to be assessed on a total income of Rs. 7,13,76,500!- before set- off of carry forward losses as determined by the learned assessing officer as against the total income of Rs. 5,63,60,500!- before set-off of carry forward losses as returned by the Appellant under the facts and circumstances of the case. 3. The learned CIT[A] is not justified in passing an ex-parte order and confirming the addition made by the learned Assessing Officer under the head of capital gains of Rs. 1,50,16,000/- over and above the capital gains income declared by the Appellant under the facts and circumstances of the case. 4. The CIT[A] failed to appreciate the fact that the Appellant had received substantial amount as advance through account transfer before the date of entering into the memorandum of understanding which has a bearing on the entire issue on hand on the facts and circumstances of the case 5. The CIT[A] failed to appreciate that the guideline value of the property on the date of memorandum of understanding was much less than the sale consideration and consequently the provisions of Section 50C are not attracted to the facts of the case. 6. The CIT[A] failed to appreciate that the provisio 1 and 2 to Section 50C are clear in as much as the guideline valuation on the date of memorandum has to be taken into account if the advance has been taken through banking channels on which there is no doubt and which factual position is admitted on the facts of the Appellant case and consequently the Lower authorities ought to have taken note of this clarificatory amendment and not made any
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addition under Section 50C on the facts and circumstances of the case. 7. The learned assessing officer is not justified in law in making addition a sum of Rs. 1,50,16,000!- under the head income from capital gains as per the provisions of Section 50C of the Act under the facts and circumstances of the case. 8. Without Prejudice, the valuation made by the valuation officer is erroneous in law and on facts for the following grounds: “[i] The valuation is highly excessive and is liable to be modified on the facts of the case. [ii] The valuation officer erred in not adopting the guideline value on the date of the memorandum of understanding on the facts and circumstances of the case. [iii] The valuation officer is not justified in adopting [and rate at Rs. 2,700!- per square feet when on the very date of memorandum of understanding the valuation officer has taken note of a document in the very campus of the Appellant at Rs. 2,319/- per square feet and consequently the adoption of Rs. 2,700/- is highly arbitrary and discriminatory on the facts and circumstances of the case. [iv] The valuation officer has ignored the comparable case of Rs. 2,000/- near the vicinity much later than the date of memorandum of understanding without assigning any valid reasons on the facts and circumstances of the case. [v] The valuation of the building by adopting CPWD rates instead of PWD rates is contrary to law on the facts and circumstances of the case. [vi] The valuation on the basis of present reproduction cost minus depreciation of the expired period of life of 9 years is not in
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accordance with law as the said method cannot be adopted for the present valuation as no willing buyer will consider the same. [vii]The valuation officer is not correct in granting only 10 % rebate for the various problems of the property like bank and attachment etc on the facts of the case. The same has to be enhanced to atleast 33% as no willing buyer will buy litigated property at high price on the facts and circumstances of the case. [viii] The valuation officer is not justified in granting only 5% for restricted use of the land which is very low and contrary to the commercial practice in vogue in as much as it should be only 1/3 of the value and more so as the said land can only be used as garden and no construction can be made the granting of rebate it very and requires to be enhanced substantially on the facts and circumstances of the case. 9. The lower authorities were not justified in estimating the value of the property for Section 50C purposes at a value different from the registered sale deed on the facts and circumstances of the case. The addition of Rs. 1,50,16,000/- is neither sustainable in law or on facts and consequently the same is liable to be deleted on the facts and circumstances of the case. 10. The learned Commissioner of Income-tax [Appeals] erred in holding that the Appellant was not interested in pursuing its own appeal and that none responded to the notices of hearing and that no adjournment was sought personally on the facts and circumstances of the case. 11. The Appellant craves leave to add, alter, substitute and delete any or all of the grounds of appeal urged above. 12. For the above and other grounds to be urged during the hearing of the appeal the Appellant prays that the appeal be allowed in the interest of equity and justice.”
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The brief facts of the case are that the asseseee is engaged in the business of infrastructure development and filed the return of income electronically on 30/9/2013 with Nil income and the Return of income was processed u/s 143(1). Subsequently notice u/s 143(2) and 142(1) were issued, whereas in compliance, the ld AR of the assessee appeared from time to time and filed the details . The AO found that the assessee has sold properties and claimed the exemption of capital gains. Further on the information submitted by the assessee in respect of the sale consideration and there is a variance as per the provision of sec. 50C of the Act. Therefore, the AO determined the total income and after set off of brought forward loss has determined total income as nil and passed u/s 143(3) dated 31/3/2016.
Aggrieved by the order of the AO, the assessee filed an appeal before the CIT(A). The CIT(A) issued notices of hearing on 16/6/2017, 4/12/2107 and 5/1/2018 and posted the case on 11/7/17 14/12/17 and 22/1/18 and also provided final opportunity on 24/1/2018. Since there was no response, the CIT(A) based on the information available on record and has confirmed the action of the AO and dismissed the assessee’s appeal.
Aggrieved by the order of the CIT(A) assessee has filed an appeal before the Tribunal.
The AR submitted that the CIT(A) has dismissed the appeal without considering the information available and the assessee
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could not appear due to change of address and prayed for an opportunity to represent the case. Contra ld DR objected to the submissions of the ld AR and said that the CIT(A) has provided adequate opportunities of hearing but the assessee failed to appear and supported the order of the CIT(A).
We have heard the rival submissions and perused the material on record. We found that the CIT(A) has granted the opportunities for hearing on the dates as referred in the appellate order and the submissions of the ld DR that the CIT(A) has granted sufficient opportunities cannot be disputed. When a query was raised to the ld AR for reasons for non appearance, the explanation of the ld AR are not satisfactory and are not supported with any evidence. Therefore, considering the principles of natural justice and reasons envisaged by ld AR which are not supportive we considered it appropriate to restore the entire disputed issue to the file of the CIT(A) but considering the facts on record with respect to non appearance of the assessee or ld AR in spite of issuing notices in the appellate proceedings and the assessee chose not to appear which cannot be over looked. Therefore ,we are of the substantive opinion that the assessee should be provided an opportunity of hearing but with a payment of cost of Rs.5000/- to the Income-tax Department within 30 days from the date of receipt of the order and subject to payment of above cost, we restore the entire disputed issue to the file of the CIT(A) to consider the matter afresh and adjudicate on merits and assessee shall submit proof of
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payment of cost through challan copy with Tribunal and appellate authority and it is nevertheless to mention that the CIT(A) should provide reasonable opportunity to the assessee to file evidences and documents in support of the case and also assessee shall cooperate in submitting the information as expeditiously for early disposal of the appeal and we order accordingly.
In the result, assessee’s appeal in ITA Nos.2195 & 2196/Bang/2018 are allowed for statistical purposes.
Order pronounced in the open court on 22nd April, 2019.
Sd/- Sd/- (A.K GARODIA) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER Bangalore Dated : 22 /4/2019 Vms
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Copy to :1. The Assessee 2. The Revenue 3.The CIT concerned. 4.The CIT(A) concerned 5.DR 6.GF By order
Asst. Registrar, ITAT, Bangalore.
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Date of Dictation ……………………………………… 2. Date on which the typed draft is placed before the dictating Member ……………………. 3. Date on which the approved draft comes to Sr.P.S .……………………………. 4. Date on which the fair order is placed before the dictating Member ……………….. 5. Date on which the fair order comes back to the Sr. P.S. ………………….. 6. Date of uploading the order on website…………………………….. 7. If not uploaded, furnish the reason for doing so ………………………….. 8. Date on which the file goes to the Bench Clerk ………………….. 9. Date on which order goes for Xerox & endorsement…………………………………… 10. Date on which the file goes to the Head Clerk ……………………. 11. The date on which the file goes to the Assistant Registrar for signature on the order ………………………………. 12. The date on which the file goes to dispatch section for dispatch of the Tribunal Order …………………………. 13. Date of Despatch of Order. ……………………………………………..