Loading judgment…
Facts
The assessee's appeal for assessment year 2012-13 was filed against an order of the National Faceless Appeal Centre (NFAC) confirming additions made by the Assessing Officer under section 143(3) r.w.s. 147 of the Income Tax Act, 1961. The assessee was not present, and the appeal was proceeded ex-parte. The appeal was allowed for statistical purposes.
Held
The Tribunal noted that the lower authorities had incorrectly determined the cost of acquisition and had not made a statutory reference under section 50C(2) of the Act. Given these omissions, the Tribunal deemed it appropriate to restore the appeal to the Assessing Officer for a fresh adjudication.
Key Issues
Whether the CIT(A) erred in confirming additions made by the AO concerning long-term capital gains and the application of section 50C, and whether the lower authorities failed to properly determine the cost of acquisition and make necessary statutory references.
Sections Cited
143(3), 147, 50C, 49(I)(i) to (iii), 50C(2), 60, 65
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, MUMBAI BENCH “G”, MUMBAI
Before: SHRI SATBEER SINGH GODARA & SHRI OMKARESHWAR CHIDARA
O R D E R Per : Satbeer Singh Godara, Judicial Member: This assessee’s appeal for assessment year 2012-13 arises against the National Faceless Appeal Centre(NFAC)
Delhi’s DIN & order No.ITBA/NFAC/S/250/2023-
24/1055111429(1) dated 14.08.2023, in proceedings under section 143(3) r.w.s. 147 of the Income Tax Act, 1961 (in short
‘the Act’).
Case called twice. None appears at assessee’s behest. It is accordingly proceeded ex-parte.
The assessee pleads the following substantive grounds in the instant appeal:
“GROUND I On the facts and circumstances of the case, and in Law, CIT(A) erred in confirming an order u/s 143(3) of the Act passed by the Income Tax Officer 32(1)(5), Mumbai (The A.O.) ignoring the submission by the Assessee explaining the reason behind not being able to file the Agreement copy before the AO. The CIT(A) neither called for a remand report on the additional evidence nor called for any clarifications, and thus passed the order without giving proper opportunity which is bad at law.
GROUND II (without prejudice to ground I) On the facts and circumstances of the case, and in Law, the CIT(A) erred in confirming addition made by AO amouting to Rs. 24,99,999/- as Long Term Capital Gains ignoring the fact that there were 42 other co-owners other than the assesse and the assesse has not received any amount of sale proceeds from the sale of plot
GROUND III (without prejudice to ground I and II) On the facts and circumstances of the case, and in Law, the CIT(A) erred in confirming addition made by AO
GROUND IV On the facts and circumstances of the case, and in Law, the CIT(A) erred in confirming addition made by AO amounting to Rs. 1,18,63,438/ u/s 50C of the Act, ignoring the submission by the appellant that the market rate was lower than the stamp duty valuation and the request of appellant for valuation to be done by DVO.
GROUND V (without prejudice to ground IV) On the facts and circumstances of the case, and in Law, the CIT(A) erred in confirming addition made by AO amounting to Rs. 1,18,63,438/ u/s 50C of the Act, ignoring the fact that the 2.32%(1/43rd part) share of the plot of land sold. Accordingly, if any addition to be made must be restricted to 2.32% of the difference in the Stamp Duty valuation and sale consideration of the land which comes to Rs. 4,41,430/- only.
The appellant craves leave to add to, alter, and / or amend the above grounds of appeal.”
First of all comes the question of the assessee’s share
rendering him assessable qua for section 50C long term capital gains once he claims that there are total 43 ventures in the corresponding sale/transfer deed executed in the relevant the learned Assessing Officer’s detailed discussion has missed this clinching issue but also this taxpayer has been assessed for the sale consideration received by his sons without even invoking the “clubbing” provisions in sections 60 to 65 of the Act.
It is further evident to us that both the learned lower authorities have adopted Rs.1 only as the cost of acquisition of the assessee’s capital asset herein representing his ancestral property without determining the actual amount going by section 49(I)(i) to (iii) of the Act; as the case may be. Learned lower authorities have also not made any statutory reference u/s 50C(2) of the Act despite the fact that the same has been held to be mandatory in nature as per Sunil Kumar Agarwal vs. CIT (2015) 372 ITR 83 (Calcutta). Faced with this situation, we deem it appropriate in the larger interest of justice to restore the assessee’s instant appeal as well as all of his substantive grounds raised herein back to the learned Assessing Officer for his afresh appropriate adjudication as per law in very terms. Ordered accordingly.
Delay of 172 days in filing of the assessee’s instant
appeal is condoned as per his condonation averments as well as in light of Collector, Land Acquisition vs., MST Katiji [1987]
167 ITR 471 (SC). Ordered accordingly.
This assessee’s appeal is allowed for statistical purposes
in above terms.
Order pronounced in the open court on 24.07.2024.