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Income Tax Appellate Tribunal, ‘B’ (SMC
Before: SHRI ABRAHAM P. GEORGE]
आदेश / O R D E R
In this appeal filed by the assessee which is directed against an order dated 31.01.2017 of ld. Commissioner of Income Tax (Appeals)-15, Chennai, it has raised the following grounds:-
I. The order of the Learned Commissioner of Income Tax (Appeals) is opposed to law and the facts and circumstances of the case.
2. The Assessing Officer arrived at his findings without giving sufficient opportunities to the Appellant to produce supporting evidence in spite of the appellant requesting for time on the ground of the illness of his father. The ITA No.996/Mds/2017. :- 2 -:
Assessing Officer refused to accept the letter of the appellant asking for time.
Aggrieved by the Order of the Assessing Officer the Appellant preferred an Appeal before the Learned CIT Appeals but, inadvertently, in the address of the Appellant mentioned in Form 35 and the Appellant could not present his case before the Learned CIT Appeals . The Learned CIT Appeals has not given an opportunity to the Appellant to explain the facts of the case.
4. The Appellant is humbly seeking an opportunity before the Hon'ble Tribunal to present and explain the facts. The Appellant has regularly filed returns and has paid all taxes due and it would be gross injustice to the Appellant if an opportunity is not provided. S. The Learned CIT has not appreciated the fact that the Assessing Officer erred in disregarding the fact that the Appellant's father had taken a loan from the L.l.C and also a hand loan for the purpose of construction of the property settled and that the loans were used only for the purpose of the construction.
6. The Learned CIT Appeals has repeated the Order of the Assessing Officer without considering any material evidence.
7. For reasons stated in the preceding Grounds, and any Grounds that may be adduced before or during the hearing, it is respectfully prayed that the Hon'ble Tribunal may be pleased to set aside the order of the Learned CI.T. (Appeals) and thus allow the Appellant an opportunity to present his case and allow the Appeal.
Main grievance of the assessee is that it was not given 2. proper opportunity by the ld. Commissioner of Income Tax (Appeals) for presenting his case.
Assessee who is a salaried employee of M/s. Cognizant 3.
Technology Solutions India P. Ltd had sold an immovable property during the relevant previous year. Long Term Capital Gains was ITA No.996/Mds/2017. :- 3 -: worked out by the assessee and furnished to the ld. Assessing Officer as under:-
1/3 share of sale consideration of residential property 70,00,000/- Cost of acquisition Less: Indexed cost of purchase 11,07,519 Cost of improvement Less: indexed cost for FY 93-94 5,63,361/- indexed cost for FY 94-95 4,57,529/-
-------------- 48,71,591/- Invested the capital gain on purchase of new property – Purchase price 43,19,925/- Construction 6,63,488/- ------------ Balance Nil Tax on Capital Gain Nil
Assessment was completed by the ld. Assessing Officer recomputing long term capital gains as under:-
Income from LTCG Sale consideration 70,00,000 Less: Indexed cost of purchase 11,07,519 (as claimed)
Less: Indexed cost of 4,66,230 improvement ------------- 15,73,749 ------------
ITA No.996/Mds/2017. :- 4 -:
Long term capital gains 54,26,251 Less: Property purchased on 17.3.2011 43,19,925 --------------- Income from Long Term Capital 11,06,326 Gains Income Assessed 14,13,386
Actual Cost Indexed Cost Cost of indexation claimed by the 10,80,000 30,62,669 assessee Allowable 4,80,000 13,98,689
Share of the assessee 1361186/3 = 4,66,230/-.
Aggrieved, assessee moved in appeal before the ld. Commissioner of Income Tax (Appeals). Though a number of opportunities were given by the ld. Commissioner of Income Tax (Appeals) nobody attended the hearing. He confirmed the disallowance of expenditure of �1,00,000/- claimed by the assessee for construction and �5,00,000/- claimed by the assessee as cost of improvement. He also confirmed restriction of exemption claimed by the assessee u/s. 54 of the Act to �43,19,925/-. Reason cited was that the unappropriated amount were not deposited in an account under capital gain account scheme.
Now before me, ld. Authorised Representative states that restriction of the claim u/s. 54 of the Act was unfair since assessee had utilized the full amount of consideration for construction of the ITA No.996/Mds/2017. :- 5 -:
new house property. According to him, assessee will be able to produce evidence for construction expenditure and the improvement expenditure incurred, if it was given one more opportunity.
Per contra, ld. Departmental Representative strongly supporting the orders of the authorities below submitted that a number of opportunities were granted to the assessee by the ld. Commissioner of Income Tax (Appeals) but assessee had not availed of such opportunities.
I have considered the rival contentions and perused the orders of the authorities below. It may be true that assessee had not entered appearances despite notices issued by the ld. Commissioner of Income Tax (Appeals). However, now before me, contention of the ld. Authorised Representative is that assessee had evidence to prove construction done by him as well as cost incurred for improvements. I also find that assessee is a salaried employee and may not have been properly advised when the matter was before the ld. Commissioner of Income Tax (Appeals).
Considering the facts and circumstances of the case, in my opinion assessee can be given one more opportunity to explain his case before the ld. Commissioner of Income Tax (Appeals). I therefore set aside the order of the ld. Commissioner of Income Tax
ITA No.996/Mds/2017. :- 6 -:
(Appeals) and remit the appeal to his file for consideration afresh in accordance with law. Assessee shall be given more opportunity to present his case and assessee is directed to co-operate with the ld. Commissioner of Income Tax (Appeals).
In the result, appeal of the assessee is allowed for statistical purpose.
Order pronounced on Monday, the 18th day of September, 2017,at Chennai.