Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, SMC BENCH, PUNE
Before: SHRI D. KARUNAKARA RAO, AM
PER D. KARUNAKARA RAO, AM :
This is the appeal filed by assessee against the order of CIT(A)-9, Pune dated 02-05-2017 for the Assessment Year 2008-09.
Assessee raised the following grounds of appeal and the same are extracted as under :
“1. The appellant contends that, the hearing of the appeal before the learned CIT(A) - 9, Pune could not be attended due to non-availability of related documents and confusions in communication. Appellant contends and prays that the appeal may please be restored to the file of the learned CIT(A) - 9, Pune for a fresh adjudication. 2. Without prejudice to Ground No. 1, the learned CIT(A)-9, Pune erred in law and on facts by confirming the order of the learned AO wherein, the learned AO has incorrectly assumed Cost of Acquisition while deciding quantum of long term capital gains. In particular the learned AO erred by considering the fair market value of 01/04/1981 instead of the fair market value of the year 2000 when, appellant was finally granted land rights by the local authority.
ITA No.2002/PUN/2017 2 Mr. Subhash Saste
Without prejudice to Ground No. 1 & 2, the learned CIT(A) as well as the learned AO erred in law and on facts in not appreciating that the appellant had constructed a new residential house and thereby, erred in not granting deduction u/s 54F of the ITA, 1961 to the appellant. 4. Without prejudice to Ground No. 1, 2 & 3 and on an alternate basis, the appellant contends that the appellant is eligible for exemption u/s 10(37) of the ITA, 1961 since the land right transferred is a fall out of the agricultural land which had been compulsorily acquired by Government. 5. The appellant craves leave to add / modify / amend / delete all / any of the grounds of appeal.
Facts of the case, in brief, are that the assessee is an individual
and is a farmer. There was survey action u/s.133A of the Act in the
case of M/s. Pharande Promoters and Builders. The said firm is
engaged in the business of Developers and Builders. Survey action
revealed that M/s. Pharande Promoters and Builders entered into an
agreement with the assessee and his family members on sale of land
located at Plot No.18, Sector 6, Borhadewadi. The total consideration
involved is Rs.88,29,000/-. The land is ancestral property of the
assessee and the assessee along with family members are the co-
owners. AO noticed that assessee received Rs.33,32,250/- as his share
towards the said land transaction. Neither the assessee nor the AR of
the assessee attended before the AO. Eventually, the AO in his order
u/s.144 r.w.s.147 of the Act made addition of Rs.33,10,899/- as
taxable under the head capital gains. Even before the CIT(A) too, there
was none to represent the case of the assessee. Therefore, the CIT(A)
dismissed the appeal of the assessee as ‘not pressed’.
Before me, Ld. Counsel for the assessee filed an affidavit/note
explaining the reasons for non-appearance before the lower authorities
and made a submission for remanding the issue to the file of AO
keeping all the issues open for the AO to make fresh assessment.
ITA No.2002/PUN/2017 3 Mr. Subhash Saste
Contents of the said note read as under :
“A. Background of the Appellant - The appellant has received share in various inherited ancestral agricultural lands on which the appellant's ancestors had been carrying agricultural activities for past many years. The appellant is an individual and has been engaged in Agricultural activity, along with his other family members. The said Agricultural activity is carried out on the ancestral agricultural lands in and around Mauje Moshi, Taluka Haveli, near Pune.
B. Assessment Proceedings - The appellant received notice v/s 148 of the ITA, 1961. The appellant's case was selected on account of capital gains arising to the appellant on account of transfer of a capital asset which was inherited to him. In absence of adequate knowledge about the Income Tax Proceedings, the appellant and his other family members could not represent the case before the learned AO appropriately. As such, the appellant along with his other family suffered a huge addition on account of the said transaction as the learned passed an order u/s 144 of the ITA, 1961. C. Ist Appellate Proceedings - On being aggrieved with the order of the learned AO, the appellant sought for professional advice as to the future course of action. On being advised the appellant along with his family members filed an appeal before the CIT(A), Pune. However, due to some confusion and on account of non-availability of the requisite documents, the appellant's case got dismissed on an ex-parte basis again. The cases of the appellant's other family members are still pending before the learned CIT(A), wherein the CIT(A) has called for a remand report from the AO.
D. Present Issue - The issue involved in the present appeal are as follows: • Grant of deduction of appropriate indexed cost of Acquisition • Grant of exemption u/s 54F of the ITA, 1961
Prayer - Considering the above the appellant contends that a lenient view may kindly be taken in the appellant's case since the appellant is a poor farmer and carrying agricultural activities for the past many years. Further, the appellant requests that the appellant's case may kindly be set aside to either the CIT(A) or the AO so that the various facts can be considered appropriately.”
On the other hand, Ld. DR submitted for confirming the orders of
the AO/CIT(A) considering the assessee’s non-cooperation at the time of
assessment/appellate proceedings.
On going through the facts of the case and the arguments of the
Ld. Counsel for the assessee, I find this is a case where assessment was
completed u/s.144 of the Act after making additions and the additions
were confirmed by the CIT(A) again without the proper representation
ITA No.2002/PUN/2017 4 Mr. Subhash Saste
from the assessee. It is an admitted fact that the additions were
confirmed in view of lack of proper representation by the assessee
before the lower authorities. However, considering the set principles of
natural justice, as mentioned in the open court, I find it appropriate to
remand the entire issues to the file of AO for fresh adjudication after
giving reasonable opportunity of being heard to the assessee. Assessee
is directed to appear before the AO with relevant documents to
represent his case. In the event of assessee’s failure to represent his
case, AO is at liberty to repeat the additions in the fresh assessment.
Accordingly, the grounds raised by the assessee are allowed for
statistical purposes.
In the result, appeal of the assessee is allowed for statistical
purposes.
Order pronounced on this 10th day of October, 2018.
Sd/- (D.KARUNAKARA RAO) लेखा सद� / ACCOUNTANT MEMBER पुणे / Pune; �दनांक Dated : 10th October, 2018. Satish
आदेश आदेश क� आदेश आदेश क� क� �ितिलिप क� �ितिलिप �ितिलिप अ�ेिषत �ितिलिप अ�ेिषत अ�ेिषत/Copy of the Order is forwarded to : अ�ेिषत
अपीलाथ� / The Appellant; 1. ��यथ� / The Respondent; 2. आयकर आयु�(अपील) / The CIT(A)-9, Pune 3. आयकर आयु� / The Pr.CIT-5, Pune 4. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, पुणे “SMC” / 5. DR ‘SMC’, ITAT, Pune; गाड� फाईल / Guard file. 6.
आदेशानुसार आदेशानुसार आदेशानुसार/ BY ORDER,स आदेशानुसार
स�यािपत �ित //True Copy// Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune