MRS.N.MANJULA, W/O.DR.SHIVARUDRASWAMY,BANGALORE vs. INCOME-TAX OFFICER, BANGALORE

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ITA 2329/BANG/2016Status: DisposedITAT Bangalore31 May 2017AY 2005-064 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the AO did not consider the allowable deductions for the cost of acquisition and indexation benefit while computing capital gains. The matter was set aside to the AO for fresh adjudication after providing an opportunity of hearing.

What were the facts?

The assessee's appeal was dismissed ex-parte by the CIT(A) as no one appeared. The assessment was framed under section 144 by the AO due to non-appearance. The assessee's grievance is that a reasonable opportunity to present the case was not given.

What were the issues?

Whether the assessee was denied a reasonable opportunity of being heard and whether capital gains were computed correctly without allowing cost of acquisition and indexation.

Which sections of the Income-tax Act were involved?

Section 144

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “SMC-A” BENCH : BANGALORE

Before: SHRI VIJAY PAL RAO

For Appellant: Shri. P. Dinesha, Advocate
For Respondent: Shri. M. K. Biju, JCIT
Hearing: 23.05.2017Pronounced: 31.05.2017

This appeal by the assessee is directed against the order dated 15.09.2016 of CIT(A) for the assessment year 2005-06. The assessee has raised the following grounds:

2. I have heard the learned DR as well as the learned AR and considered the relevant material on record. The assessment was framed under section 144 as none appeared before the AO. Though the assessee challenged the assessment order before the CIT(A) but the appeal of the assessee was again dismissed by the CIT(A) ex-parte due to the reason that despite notice issued none has appeared even before the CIT(A). The limited grievance of the assessee in the present appeal is that the authorities have not given a reasonable opportunity to the assessee to present its case. Further, the AO while making the addition has not given the deduction towards the cost of acquisition as well as benefit of index cost of acquisition. It is noted that the AO has mentioned in the order that there is no time available for further investigation in the case as the assessment is barred by limitation.

Therefore, the assessment was concluded by computing the share received by the assessee on the sale of property as income from other sources. Hence, it is apparent that the gain if any arising from the sale of the property has to be computed as capital gain after allowing the cost of acquisition as well as benefit of indexation. Hence, I find that the AO has not considered the allowable deductions while framing the assessment and bringing the capital gain in the hands of the assessee to tax. In the facts and circumstances of the case as well as in the interest of justice, the matter is set aside to the record of the AO for adjudication of the same afresh after allowing an opportunity of hearing to the assessee as well as considering the cost of acquisition and benefit of index cost of acquisition while computing the capital gain.

3.

In the result, appeal of the assessee is allowed for statistical purposes.

Pronounced in the open court on this 31st day of May, 2017.

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