HASINA AKBAR GAWANDI,BOISAR vs. CIT (APPEALS), DELHI
Facts
The assessee, an individual, did not file her income tax return. The Assessing Officer (AO) reopened the case based on the sale of an immovable property, valuing it significantly higher than the sale consideration. The AO treated the transaction as a sale and taxed the long-term capital gains, but the assessee argued it was a Joint Development Agreement not taxable as a sale.
Held
The Tribunal noted that the assessee, due to being uneducated and from an underprivileged background, might have been unable to attend proceedings before lower authorities. The Tribunal found it fit to provide the assessee one more opportunity to furnish documentary evidence and directed the AO to conduct a de novo assessment.
Key Issues
Whether the transaction of Joint Development Agreement was erroneously treated as a sale, and if the assessee should be given another opportunity to present evidence due to circumstances of her background.
Sections Cited
45(5A), 148, 144, 147, 250
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI
BEFORE MS. KAVITHA RAJAGOPAL, JM AND SHRI GAGAN GOYAL, AM
ITA No. 3377/Mum/2024 (Assessment Year: 2011-12) Hasina Akbar Gawandi CIT(Appeals) C-1/6, First Floor, K.P. Nagar, Income Tax Department, Behind Contessa Hotel Taps, Vs. NFAC, Delhi Boisar, Palghar, Maharashtra-401 506
PAN/GIR No. AGYPG 0843 K (Assessee) : (Respondent)
Assessee by : Shri Mohammed Memon Respondent by : Shri Avinash Karpe
Date of Hearing : 22.10.2024 Date of Pronouncement : 30.10.2024
O R D E R Per Kavitha Rajagopal, J M:
This appeal has been filed by the assessee, challenging the order of the learned
Commissioner of Income Tax (Appeals) (‘ld.CIT(A) for short), National Faceless Appeal
Centre (‘NFAC’ for short) passed u/s.250 of the Income Tax Act, 1961 (‘the Act'),
pertaining to the Assessment Year (‘A.Y.’ for short) 2011-12.
The assessee has challenged this appeal on the following grounds:
The assessee had entered into a Joint Venture Agreement with a builder on 21st January 2011. According to this agreement, the consideration was exclusively in the form of a residential property, with no cash involved. Under Section 45(5A) of the Income Tax Act, 1961, the taxability for transactions under a Joint Development Agreement arises in the year in which the completion certificate for the whole or part of the property is issued by the competent authority. However, the Assessing Officer erroneously treated the Joint Development Agreement as a sale and subsequently passed an order to tax the Long Term Capital Gains. The assessee contends that this order is erroneous and does not align with the legal provisions governing the taxability of Joint Development Agreements.
2 ITA No.3377/Mum/2024 (A.Y.2011-12) Hasina Akbar Gawandi vs. CIT(Appeals) 3. The brief facts are that the assessee is an individual and had not filed her return of
income for the year under consideration. The learned Assessing Officer (ld. A.O. for
short) reopened the assessee’s case vide notice u/s. 148 of the Act dated 26.03.2018 for
the reason that the assessee along with 15 other joint co-owners had sold an immovable
property for a sale consideration of Rs.12,50,000/- during the year under consideration,
which market value according to the ld. A.O. was Rs.92,50,000/- as per the stamp duty
authority for the purpose of stamp duty payment, thereby on the belief that income as
escaped assessment. The assessee filed her return of income in response to the notice u/s.
148 of the Act declaring total income at Rs.1,20,000/-. The ld. A.O. then passed the
assessment order u/s. 144 r.w.s. 147 of the Act on 17.12.2018 being the best judgment
assessment, as the assessee has been non compliant, thereby determining the total income
at Rs.6,98,125/- after making an addition/disallowance of Rs.5,78,125/- towards the
capital gain not offered for taxation.
Aggrieved the assessee had challenged the assessment order before the ld. CIT(A).
The ld. CIT(A) vide an ex parte order dated 30.04.2024 had upheld the additions
made by the A.O. on the ground that the assessee has failed to furnish any documentary
evidence in support of her claim and has been non compliant throughout the appellate
proceeding.
Aggrieved the assessee is in appeal before us, challenging the order of the ld.
CIT(A).
3 ITA No.3377/Mum/2024 (A.Y.2011-12) Hasina Akbar Gawandi vs. CIT(Appeals) 7. The learned Authorised Representative ('ld. AR' for short) for the assessee
contended that the assessee being an uneducated woman from underprivileged class of
society was unable to attend the proceeding before the lower authorities. The ld. AR
further contended that the assessee has got a good case on the merits and prayed that the
assessee may be given one more opportunity to present her case before the ld. A.O.
The learned Departmental Representative ('ld.DR' for short) opposed to setting
aside the issue to the file of the ld. A.O. for the reason that the assessee was given several
opportunity by the lower authorities which was not availed by the assessee.
Having heard the rival submissions and perused the materials available on record.
We deem it fit and proper to provide the assessee with one more opportunity to furnish
the documentary evidence in support of her claim before the A.O. as in accordance with
the principle of natural justice. The assessee is directed to co-operate with the
proceedings before the A.O. by furnishing all the relevant documentary evidence without
causing any delay. The A.O. is directed to peruse the same and to decide the case on
merits. We hereby remand this appeal to the file of the A.O. for de novo assessment.
In the result, the appeal filed by the assessee is allowed for statistical purpose.
Order pronounced in the open court on 30.10.2024.
Sd/- Sd/-
(Gagan Goyal) (Kavitha Rajagopal) Accountant Member Judicial Member Mumbai; Dated :30.10.2024 Roshani, Sr. PS
4 ITA No.3377/Mum/2024 (A.Y.2011-12) Hasina Akbar Gawandi vs. CIT(Appeals) Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. CIT- concerned 4. DR, ITAT, Mumbai 5. Guard File BY ORDER,
(Dy./Asstt.Registrar) ITAT, Mumbai
