SHAILENDRA,MEERUT vs. ITO, WARD- 2(3), MEERUT

PER BHAVNESH SAINI, JUDICIAL MEMBER

1. “That no notice u/s 148/142(1) was served upon the assessee, therefore, assessment made by A.O u/s 144 is bad in law and Ld.CIT(A) has not decided this same.

2. That the A.O. is in error in taxing sale of agriculture land as long term capital gain, however the land was situated in village Chindori Khas, Rohta Road, Meerut which is approximate 12 KM away from the Meerut Municipal Limit. Therefore, it does not form part of capital asset as define in section 2(14) of I.T.Act. 3. That the A.O has not allowed the rebate u/s 54B purchase of agriculture land in the name of his mother, therefore, assessment made by A.O. is bad in law. 4. That the penalty proceeding u/s 271(1)(c) initiated by A.O. in routine and mechanical manner, which is not permitted in law. The Order of CIT(A) is silent.”

Therefore, to assess the Capital Gain arising on the sale of the property as per provisions of section 50C of the Income Tax Act, 1961 (in short “Act”), notice u/s 148 was issued to the assessee. The assessee, however, did not make any compliance. Further, statutory notices issued to the assessee for completion of the assessment, however, none have been complied with. The AO on the basis of the material available on record, passed ex-parte assessment order u/s 144/148 of the Act. The AO noted that sale consideration for computation of capital gain is taken at Rs.49,75,000/-. The assessee’s share on this property is half, therefore, it comes to Rs.24,87,500/-. Since no details have been filed and no information is available as regards cost of acquisition, therefore, the total amount of Rs.24,87,500/- was assessed as long term capital gain.

before Ld.CIT(A). The assessee, however, claimed that impugned property is approximately

12. KM from the municipal limit and also gave alternate plea that as per sale deed, the share of the assessee is half and that while computing capital gains in the assessment, the AO has not given benefit of cost of acquisition which in a similar case of nearby property was taken by Ld.CIT(A), Aligarh Camp Office Meerut at Rs.50,000/- per bigha. The matter was remanded to the AO for filing Remand Report in which AO did not recommend for admission of additional evidences. Ld.CIT(A) noted that there is no dispute that the assessee has half shares in the property and further noted that he did not see any reason why benefit of cost of acquisition will not be given to the assessee.

Merely because no evidence with regard to cost of acquisition was submitted would not deny the fact that there is some cost of acquisition of every property.

The assessee has placed reliance on the nearby property where cost of acquisition of Rs.50,000/- per bigha has been accepted by Ld.CIT(A), Aligarh Camp Office Meerut. Therefore, The AO was directed to examine the fact and allow the benefit of cost of acquisition at Rs.50,000/- per bigha. The appeal of the assessee was partly allowed.

6. On consideration of the facts noted by the authorities below, I do not find any justification to interfere with the orders of the Ld.CIT(A). The assessee did not make any compliance before the AO. The AO on the basis of the sale deed has given benefit of half of the sale consideration in favour of the assessee because assessee was having half share in the property. The assessee raised several grounds before Ld.CIT(A). However, the assessee pleaded only two facts before Ld.CIT(A) that the impugned property is approximately 12 KM from the municipal limit and Ld.CIT(A), Aligarh for nearby properties has given a benefit of cost of acquisition in a sum of Rs.50,000/- per bigha. Ld.CIT(A) directed the AO to examine the facts and allow benefit of cost of acquisition at Rs.50,000/-

per bigha as is accepted by Ld.CIT(A), Aligarh Camp Office Meerut. Now, Ld.

Counsel for the assessee has raised only one ground that authorities below have not given the finding whether impugned property was a capital asset. I may note that the assessee alleged that property in question is not a capital asset because it is approximately 12 KM away from municipal limit, therefore, the burden is upon the assessee to prove such fact before the authorities below. However, no attempt has been made by the assessee to prove such fact before the authorities below. The assessee has similarly did not file any evidence before the Tribunal in support of point raised above. Therefore, in the absence of any evidence or material on record, no interference should be made in the orders of the authorities below. No other ground has been argued or pressed. There is no merit in the appeal of the assessee, the same is, accordingly, dismissed.

Order pronounced in the open court.