RAJESH BIRTHARE,INDORE vs ITO 3(2), INDORE, INDORE

आयकर अपीलीय अिधकरण, इंदौर Ɋायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE

BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND

SHRI B.M. BIYANI, ACCOUNTANT MEMBER

ITA No. 111/Ind/2024 Assessment Year : 2012-13

ITA No. 112/Ind/2024 Assessment Year : 2012-13

Shri Rajesh Birthare, Flat No. 1403-1404, B.C.M. Paradise, Tulsi Nagar, Nipania, | बनाम/ Vs. | ITO-3(2), Indore. Indore. (Assessee/Appellant) | (Revenue/Respondent)

PAN: AHCPB7943C Assessee by | None Revenue by | Shri Ashish Porwal, Sr. DR Date of Hearing | 26.09.2024 Date of Pronouncement | 26.09.2024

आदेश / O R D E R

Per B.M. Biyani, A.M.:

These are the two appeals filed by assessee. The first appeal being ITA 111/Ind/2024 is directed against appeal-order dated 11.12.2023 passed by learned Commissioner of Income-Tax (Appeals)-NFAC, Delhi ["CIT(A)"] which in turn arises out of assessment-order dated 08.11.2019 passed by ITO-3(4), Indore ["AO"] u/s 144 r.w.s. 147 of Income-tax Act, 1961 ["the Act"]. The second appeal being ITA 112/Ind/2024 is directed against another appealorder dated 11.12.2023 passed by same CIT(A) which in turn arises out of assessment-order dated 13.12.2018 passed by a different AO, namely ITO-3(2), Indore u/s 144 r.w.s. 147 of the Act. Both of these matters relate to very same Assessment-Year ["AY"] 2012-13.

- 2. None appeared at assessee's behest nor any adjournment application filed at the time when the case was called. Therefore, the matter was passed over and once again called at the end of board. Still none appeared. Ld. DR for revenue was, however, ready for submissions. On perusal of case file with the able assistance of Ld. DR, it is found that these matters can be decided on the basis of material held on record. Therefore, the hearing is proceeded and the matters are being decided on the basis of case file and submissions of Ld. DR. - 3. The grounds raised by assessee in these appeals are re-produced below:

ITA 111/Ind/2024:

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Additional Grounds of Appeal:

Additional Ground No. 1:

During the A.Y 2012-2013, Appellant sold two parcels of ancestral agriculture land along with his brother - Brajesh Birthere (PAN: AEVPB7076E) and mother - Geeta bai Birthere(FBLPB6749C) as under:

The appellant case was re-opened by ITO 3(4), Indore under section 147 and notice under section 148 was issued on 26.03.2019 by ITO – 3(4), Indore for determining capital gains on transfer of agriculture land KH. NO. 165/1/2, TALAWALI CHANDA, INDORE(2.965 Hec) sold for Rs. 2,32,60,000/-.

Also the appellant case was re-opened by ITO 3(2) Indore under section 147 and notice under section 148 was issued on 16-03-2018 by ITO - 3(2), Indore for determining capital gains on transfer of agriculture land (KH. NO. 165/1/2, TALAWALI CHANDA, INDORE (0.874 Hec) sold for Rs. 1,63,58,000/-.

The said two parcels of land were jointly held in equal proportions by the Appellant himself, his brother - Brajesh Birthere (PAN: AEVPB7076E) and mother - Geeta bail Birthere (FBLPB6749C)

Similar notice was also issued by ITO -3(4) to the mother of the Appellant - Geeta bai Birthere(FBLPB6749C) for determining capital gains on transfer of the said both parcels of agriculture land sold for Rs. 1,63,58,000/- and Rs. 2,32,60,000/- and rb.

HR!

entire sale proceed has also been added as her income vide order u/s 144/147 Dt. 15.11.2019.

However the entire income of all the three sellers has been assessed as income of the Appellant which is bad in law by Ld ITO 3(4) and ITO 3(2) Indore.

Additional Ground No. 2:

Two different Assessing Officers i.e. ITO 3(4) and ITO 3(2) Indore have vide two different assessment orders assessed two different incomes of the same Appellant under the same section 147/148, which is against the scheme of taxation, as the entire income of the assessee should be assessed by the Jurisdictional assessing officer only. The entire assessment proceedings are bad in law.

Additional Ground No. 3:

Though Appellant prayed to alter, add amend the grounds of appeal in the appeal filed by the Appellant, but because the appeal was migrated to FACELESS APPEAL CENTER, so the notices sent to Appellant by Faceless system could not be received by the Appellant, as he is not tech-friendly and reply could not be filed to the notices issued by Faceless Appeal Center. The appeal decided ex-party is bad in law.

The mother of Appellant is aged and on bed. She is continuously required to be hospitalized, for this reason, he could not reply timely to the appeal notices. The appeal decided ex-party is bad in law.

ITA 112/Ind/2024:

Similar notice was also issued by ITO-3(4) to the mother of the Appellant - Geeta bai Birthere(FBLPB6749C) for determining capital gains on transfer of the said both parcels of agriculture land sold for Rs. 1,63,58,000/- and Rs. 2,32,60,000/- and the entire sale proceed has also been added as her income vide order u/s 144/147 Dt. 15.11.2019.

However the entire income of all the three sellers has been assessed as income of the Appellant which is bad in law by Ld ITO 3(4) and ITO 3(2) Indore.

Additional Ground No. 2:

Additional Ground No. 3:

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- 4. A perusal of grounds raised by assessee reveals that both of these appeals relate to very same AY 2012-13 but originate from two different assessment-orders passed by two different AOs u/s 144/147. The additions made by respective AOs are qua different parcels of same property sold by assessee. It is a claim of assessee that the sold assets were jointly owned by assessee as well as brother and mother of assessee but entire sale proceeds have been taxed in assessee's hands and also assessee's mother and that too without giving deduction of any cost as allowable in terms of provisions of the Act. Further, the orders of first appellate authority being CIT(A) have been passed under Faceless Scheme without giving adequate opportunities to assessee. The assessee has serious objections against the jurisdictions assumed by two different AOs in his case as well as on merits of the additions made by those AOs. Therefore, the impugned orders passed by CIT(A) require an apt adjudication qua the claims of assessee. Hence, it would be better to remand these matters at the level of CIT(A) for adjudication afresh on all issues of assessee. Ld. DR for revenue immediately agreed to the proposal of bench to restore these matters to lower-authority, however he prayed that a direction be given to assessee to attend the hearings before lower authority. - 5. In view of above and also having regard to the principle of natural justice and fair play, we deem it fit to remand these matters back to the file of CIT(A) for a proper adjudication afresh. The CIT(A) shall give necessary opportunity of hearing to assessee and pass an appropriate order

Shri Rajesh Birthare, Indore. ITA No. 111 & 112/Ind/2024 – A.Y. 2012-13

uninfluenced by his earlier orders. The assessee is also directed to ensure participation in the hearings as may be fixed by CIT(A) and do not seek unnecessary adjournments failing which the CIT(A) shall be at liberty to pass appropriate order in accordance with law. Ordered accordingly.

Resultantly, these appeals are allowed for statistical purpose.

Orders pronounced in open court immediately after conclusion of hearing and reduced in writing subsequently on the same day

(VIJAY PAL RAO) (B.M. BIYANI)

Sd/- sd/- JUDICIAL MEMBER ACCOUNTANT MEMBER

Indore

िदनांक /Dated : 26.09.2024.

CPU/Sr. PS

Copies to: (1) The appellant

- (2) The respondent - (3) CIT - (4) CIT(A) - (5) Departmental Representative - (6) Guard File

By order UE COPYAssistant Registrar Income Tax Appellate Tribunal Indore Bench, Indore

RAJESH BIRTHARE,INDORE vs. ITO 3(2), INDORE, INDORE