SHIMLA,GHAZIABAD vs. ITO WARD 2(3) , GHAZIABAD

PER S.RIFAUR RAHMAN, AM: 1. This appeal has been filed by the Assessee against the order

of Learned Commissioner of Income Tax (Appeals)-National

Faceless Appeal Centre (NFAC), Delhi [“Ld. CIT(A)”, for short],

dated 13/06/2023 for Assessment Year 2009-10.

with the Assessing Officer that Smt. Shimla, D/o Late Shri

2 ITA No.2357/Del/2023 Shimla vs. ITO

Ramnath, Vill:- Makanpur, Loni, Ghaziabad had sold immovable

property by an amount of Rs.52,41,657/- during the Financial

Year 2008-09 relevant to Assessment Year 2009-10. Since, case

was referred to the Assessing Officer on the basis of Non PAN AIR

Report. The Assessing Officer has issued 148 notice. As per the

notice submitted before us which is filed in Paper Book at page

26-27. The Assessing Officer has merely sent the notice with the

address Smt. Shimla, Vill:- Makanpur, Ghaziabad. Since, the

notice was issued with the improper address, it is brought to our

notice that assessee has not received any notice, and, accordingly,

due to non representation of the case, the assessment was

completed u/s 147/144 of the Income Tax Act, 1961 (‘the Act’ for

short) based on the information/address available with the

Assessing Officer. It is relevant to notice that at the time of passing

the assessment order, the Assessing Officer was not aware of the

PAN details of the assessee. The assessee filed an appeal before

the Ld. CIT(A) and raised several grounds of appeal. We observed

that the Ld. CIT(A) has issue several notices which is listed at

page-2 of the appellate order. Since, there is no compliance from

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the assessee side and also the Ld. CIT(A) noticed that a ground

was raised by the assessee for not granting of proper opportunity

in this regard. The Ld. CIT(A) referred the issue to Assessing

Officer and received the remand report. Based on the remand

report relying on the several case laws, the Ld. CIT(A) has partly

allowed the grounds raised by the assessee. The Ld. CIT(A)

observed that the property purchased by the assessee is a joint

property and assessee has received 50% share and accordingly,

he restricted the addition to the extent of 20,02,059/- instead of

26,20,830/- after allowing indexed costs of acquisition available to

the assessee.

appeal before us raising following grounds of appeal:-

“1. That the impugned Assessment order passed by the Hon'ble CIT (A) is bad in law, wrong on facts and against the Principal of natural justices hence is unsustainable. 2. That the notice u/s 148 being alleged to be issued on 15th. March 2016 is issued to non-existing/ incorrect address, which is never served on assessee beside notice is issued without any reasons to believe' being reasons itself are wrong hence is an invalid notice and subsequent proceedings/order is illegal. 3. That The notice u/s 148 is issued mechanically on the basis of AIR information only without any independent application of mind/satisfaction/enquiry by AO as well as of approving authority merely

4 ITA No.2357/Del/2023 Shimla vs. ITO

to conduct roving enquiry that too with incorrect 'reasons which is beyond jurisdiction and subsequent proceedings/order is illegal and the same confirmed by Ld CIT (A). 4. That the impugned Assessment order passed by the Hon'ble CIT (A) is wrong, having no base and against the circumstance of the case.

appeal was filed with the delay of 7 days and filed an affidavit in

this regard and prayed for condonation of delay. The DR objected

for condonation of delay.

and proceed to hear of the case.

5 ITA No.2357/Del/2023 Shimla vs. ITO

serving of notice with the improper address and, subsequently,

preferred not to press the same. He brought to our notice findings

of the Ld. CIT(A) and the relevant remand report. He prayed that

Ld. CIT(A) and the Assessing Officer has determined the capital

gain at Rs.20,02,059/- and submitted that the assessee has

purchased another property out of the proceeds of the above sale

consideration and prayed that assessee is eligible to claim the

exemption u/s 54F of the Act.

the notice and with regard to determination of capital gain, he has

no objection to remit this issue back to the file of Assessing Officer

and submitted that assessee has not raised the issue of section

54F before the authorities also he is in agreement that assessee

had not made proper representation before the Assessing Officer.

record. I observed that the reassessment proceeding was initiated

in the case of the assessee on the basis of Non PAN AIR Report

and assessee has not being served proper notice, and, accordingly,

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assessment also was completed without any submissions from the

assessee. The Ld. CIT(A) has considered the plea of the assessee

and given certain relief, however, he determined the taxable

income under the head capital gains according to ½ share of the

assessee and even assessee has not made any proper submissions

before the Ld. CIT(A) with regard to exemption u/s 54F. In the

present case, the assessee has submitted that the assessee has

proceeded with the appellate proceedings with improper data and

represented with half hearted with the belief that the assessment

is bad in law. In our considered view, this issue may be remitted

back to the file of Assessing Officer to consider the entire

submissions of the assessee and with the direction that if assessee

has invested in the property and eligible to claim deduction u/s

54F, the same should be granted to the assessee after giving

proper opportunity of being heard to the assessee. Accordingly, the

issue of grant of relief u/s 54F is remitted to the file of Assessing

Officer. Accordingly, appeal filed by the assessee is allowed for

statistical purposes.

7 ITA No.2357/Del/2023 Shimla vs. ITO

statistical purpose.

Order pronounced on 5th July, 2024.

Sd/- (S.RIFAUR RAHMAN) ACCOUNTANT MEMBER Dated: 05/07/2024 Pk/sps Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT

ASSISTANT REGISTRAR ITAT, NEW DEL