SUBHASH SASTE,PUNE vs. DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE - 8, PUNE

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.

“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

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’.

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.”

the AO/CIT(A) considering the assessee’s non-cooperation at the time of

assessment/appellate proceedings.

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

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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.

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