BHAGVAN DAS L/H SHRI GAURI SHANKER,FIROZABAD vs. ITO WARD 2(2)1, FIROZABAD
Facts
The assessee did not file a return of income for Assessment Year 2012-13. Based on AIR information, the Assessing Officer (AO) found that the assessee sold agricultural land, and a portion attributable to the assessee was Rs. 13,61,600/-. The AO reopened the case and made an addition of Rs. 13,61,600/- as long-term capital gain. The CIT(Appeals) dismissed the assessee's appeal, confirming the AO's addition.
Held
The Tribunal noted that the assessee's appeals were filed with a significant delay, which was condoned. A key grievance was the non-provision of the remand report to the assessee for filing a rejoinder. The Tribunal found it appropriate to remit the matter back to the Assessing Officer for fresh adjudication.
Key Issues
Whether the CIT(Appeals) erred in dismissing the appeal without proper consideration of additional evidence and by wrongly denying the benefit of Section 54B, and whether the assessee was given an opportunity to respond to the remand report.
Sections Cited
271(1)(c), 144, 147, 148, 54B
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, AGRA BENCH, AGRA
Before: SHRI S. RIFAUR RAHMAN & SHRI SUNIL KUMAR SINGH
IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER AND SHRI SUNIL KUMAR SINGH, JUDICIAL MEMBER ITA No. 260 & 259/Agr/2025 Assessment Year: 2012-13
Bhagwan Das, L/h Shri Gauri Vs. Income-tax Officer, shanker, Daulatpur, Ward 2(2)(1), Firozabad. Muihiddinpur, Firozabad (UP)- 283204. PAN :EAMPD4308E (Appellant) (Respondent)
Assessee by Ms. Prarthana Jalan, C.A. Department by Sh. Shailendra Srivastava, Sr. DR
Date of hearing 13.10.2025 Date of pronouncement 30.10.2025
ORDER PER : SUNIL KUMAR SINGH, JUDICIAL MEMBER:
These appeals have been preferred by assessee against separate
impugned orders both dated 24.06.2024 passed in Appeal No. CIT(Appeal)-2,Agra/10832/2017-18 and CIT(Appeal)-2, Agra/10012/2018- 19 by the Ld. Commissioner of Income-tax (Appeals), NFAC, Delhi u/s. 250
of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) for the assessment year 2012-13, wherein the ld. CIT(Appeals) has dismissed assessee’s appeal, confirming the assessment order dated 29.09.2017
ITA No. 260 & 259/Agr/2025
passed u/s. 144/147 of the Act and also dismissed assessee’s first appeal,
affirming the penalty order dated 19.03.2018 passed u/s. 271(1)(c) of the
Act, on the ground that quantum addition made by Assessing Officer in the
assessment order, stood confirmed by ld. CIT(Appeals).
Since, the penalty order passed u/s. 271(1)(c) of the Act is
consequential to the assessment order, both these appeals are being
disposed of by the consolidated order for the sake of convenience and
brevity. The facts of ITA No. 260/Agr/2025 only are being narrated as under
:
At the very outset, it is noted that both these appeals were filed on
12.05.2025 against the impugned orders each dated 24.06.2024 by a delay
of about 263 days. The reasons for delay assigned in the delay
condonation applications are that the appellant assessee was not aware of
the impugned order, as the email ID registered on the portal was not of the
appellant assessee and therefore, he had no access to the communication
sent by department on such registered mail ID. The reasons mentioned in
the delay condonation application are supported by uncontroverted affidavit
of the assessee, hence, treated as sufficient. The said delay of about 263
days in both the above said appeals stand condoned.
ITA No. 260/Agr/2025: 2 | P a g e
ITA No. 260 & 259/Agr/2025
Briefly stating, the facts are that the assessee did not file any return of
income for the year under consideration. Based on the
documents/information gathered from AIR filer, the Assessing Officer
noticed that during the year under consideration, the assessee had sold an agricultural land for Rs.22,00,000/-, stamp value of which was Rs.66,68,000/-, in which assessee had 1/5th share, i.e., Rs.13,61,600/-.
Letters were issued to the assessee for filing return of income, but the assessee neither filed any return nor submitted any reply. Case was
reopened u/s. 147 of the Act by issuing notice u/s. 148 of the Act, which too
remained un-responded. Statutory notices were also issued, but for no avail. Since the assessee failed to offer any explanation regarding the cost of acquisition etc., the Assessing Officer made addition of Rs.13,61,600/-
as income from long term capital gain, vide assessment order dated 29.09.2017 passed u/s. 144/147 of the Act.
Aggrieved, assessee preferred an appeal before learned
CIT(Appeals), contending that he sold impugned agricultural land and subsequently purchased three pieces of agricultural lands for total
consideration of Rs.11,00,000/-, Rs.2,60,000/- and Rs.9,00,000/- to a total
of Rs.22,60,000/- and hence, in view of deduction provided u/s. 54B of the Act, no capital gain arose on the sale of impugned property. The appellant
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ITA No. 260 & 259/Agr/2025
assessee also filed additional evidences in the form of copy of
purchase/sale deeds of the properties etc. Ld. CIT(Appeals) called for the
remand report from the Assessing Officer and after considering the same,
dismissed the appeal of the assessee observing in para 5.3 as under :
“5.3. The remand report of the AO is self-explanatory wherein it is categorically mentioned that the assessee failed to file valid return of income for the AY 2012-13 and hence in the absence of any valid return of income, he is not liable to avail the claim of deduction u/s 54B of the Act. Thus on sale of the immovable property, the assessee earned capital gain and did not offer it to the taxation by filing return of income. In the absence of return of income, he is not liable to avail the deduction u/s 54B of the Act even if he otherwise fulfilled all the conditions in order to claim the deduction u/s 54B of the Act. Thus the AO correctly made an addition of Rs. 13,61,600/- under the head "Capital Gain". In view of the facts discussed above & remand report furnished by the AO, the addition made of Rs.13,61,600/- on account of capital gain is confirmed.” 6. The first appeal was accordingly dismissed by the first appellate
authority.
This second appeal has been filed on the ground, in addition to
others, that Ld. CIT(Appeals) erred in dismissing the appeal without
properly considering the additional evidences filed during the first appellate
proceedings, wrongly denying the benefit of section 54B of the Act while
calculating the long term capital gain and without giving an opportunity to
file rejoinder to the remand report sought from the Assessing Officer.
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ITA No. 260 & 259/Agr/2025
Perused the records. Heard learned representative for assessee and
learned Sr. DR for revenue.
Perusal of the impugned order shows that the ld. CIT(Appeals)
sought for the remand report from the Assessing Officer consequent upon
the additional evidences and assessee’s submissions filed before him. The
main grievance of the appellant assessee is that the copy of the remand
report was not provided to him to file his rejoinder. It is also noted that the
Assessing Officer has also made best judgment assessment u/s. 144 of the
Act, as no response was filed by appellant assessee in compliance to
various notices issued by Ld. Assessing Officer. The additional evidences
filed before the first appellate authority go to the root of the issue as to
whether the assessee is eligible for the deduction u/s. 54B of the Act or not
? In the totality of facts and circumstances of the case, we deem it just and
appropriate to remit the matter back to the file of Assessing Officer for
passing order afresh after affording proper opportunity of hearing to the
assessee. The appellant assessee shall be free to raise all the
submissions before the Assessing Officer. The Assessing Officer shall take
into consideration all the submissions raised by the assessee before
passing the assessment order afresh in accordance with law. The assessee
is also directed to be cooperative in attending the proceedings and making
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ITA No. 260 & 259/Agr/2025
submissions in support of his case before the Assessing Officer for the
expeditious and effective disposal. Needless to say, that learned Assessing
Officer shall ensure the observance of the principles of natural justice. The
appeal is, thus, liable to be allowed for statistical purposes.
ITA No. 259/Agr/2025:
Since the issue relating to the quantum addition has been remanded
back to the file of the learned Assessing Officer for fresh adjudication, and
as the present appeal pertains to the penalty imposed under section
271(1)(c) of the Act, which is consequential to the said quantum addition,
we consider it appropriate to remit this penalty matter also to the file of the
learned Assessing Officer for passing order a fresh in accordance with law.
Accordingly, this appeal is also allowed for statistical purposes.
In the result, both the appeals are allowed for statistical purposes.
The impugned orders each dated 24.06.2024 are set aside.
Order pronounced in the open court on 30.10.2025. Sd/- Sd/- (S. RIFAUR RAHMAN) (SUNIL KUMAR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 30.10.2025 *aks/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, Agra 6 | P a g e
