GEETA BAI,BERASIA vs. ITO 4(4), BHOPAL
Facts
The assessee filed three appeals against orders of the CIT(A) for Assessment Years 2013-14 to 2015-16. There were delays in filing these appeals, which the assessee attributed to being a cardiac patient and confined to bed. The assessee also claimed that the CIT(A) passed ex-parte orders without providing an opportunity to be heard, and that the AO made additions based on surmises and conjectures without considering the cost of acquisition or deductions under Section 54F.
Held
The Tribunal condoned the delay in filing the appeals, acknowledging the assessee's medical condition. It was held that the CIT(A) passed ex-parte orders without proper notice, and the AO made additions without considering the cost of acquisition or Section 54F deductions. Therefore, the matter was considered to require reconsideration.
Key Issues
Whether the CIT(A) orders were passed ex-parte without affording the assessee an opportunity of being heard, and whether additions made by the AO were erroneous due to non-consideration of cost of acquisition and Section 54F deductions.
Sections Cited
147, 148, 250, 54F, 144, 54
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI VIJAY PAL RAO & SHRI B.M. BIYANI
Per Vijay Pal Rao, JM:
These 3 appeals by the assesse are directed against 3 separate
orders of the Commissioner of Income Tax (Appeals), National
Faceless Appeal Centers,(NFAC) Delhi dated 02.11.2023,
17.01.2022 and 17.01.2024 for the Assessment Years 2013-2014 to
2015-16 respectively.
ITANos.303 to 305/Ind/2024 Geeta Bai 2. There is a delay of 98 days in filing the appeals for the
Assessment Year 2013-14, 22 days for the Assessment Year 2014-
15 and 23 days for the Assessment Year 2015-16. The assessee
has filed separate applications for condonation of delay which are
supported by 3 separate affidavits of the assessee one for each year.
2.1 We have heard the Ld. AR as well as Ld. Departmental
Representative and carefully perused the evidences filed by the
assessee explaining the cause of its delay. The assessee in the
affidavit has stated that the assessee is a cardic patient and was
confined to back during the relevant period which has caused the
delay of 98 days, 22 days and 23 days respectively in filing these
appeals. Having considered the reasons explained by the assessee
which is supported by the affidavit we are satisfied that the
assessee was having a sufficient cause for the delay in filing these 3
appeals. Accordingly the delay of 98 days, 22 days and 23 days in
filing these appeals for Assessment Year 2013-14, 2014-15 and
2015-16 respectively is condoned.
The assessee has raised following grounds of appeal:
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ITANos.303 to 305/Ind/2024 Geeta Bai
ITA. No.303/Ind/2024 A.Y 2013-14:
“1. That in the facts and circumstances of the case the very initiation of proceeding u/s 147 and issuance of notice u/s 148 are bad in law, invalid therefore, the assessment is liable to be annulled. 2. That in the facts and circumstances of the case the initiation of proceeding u/s 147/148, and completion of assessment order u/s 147 and appellate order under section 250 are bad in law as well as on facts and are liable to be annulled. 3. That in the facts and circumstances of the case the appellant did not get the opportunity of being heard and hence the order is against the natural justice of law. The Learned CIT Appeals upheld the ex parte order passed by the Ld. AO with addition of Rs.91,90,500/- to the income of appellant which is bad in law and erroneous. 4. That in the facts and circumstances of the case the appellate and assessment orders are passed in haste without providing any opportunity to the appellant which is against the principles of natural justice. 5. That in the facts and circumstances of the case the addition of Rs. 91,90,500/- has been made in the hands of the appellant without any cogent evidence merely on the basis of surmises and conjectures. 6. That in the facts and circumstances of the case no cost of acquisition, cost of improvement and expenses relating to transfer of land has been considered which is bad in law and erroneous. 7. That in the facts and circumstances of the case the entire amount of capital gain was exempt under section 54F since the appellant had constructed residential house out of the sale proceeds which is not considered by the CIT Appeals whilst passing the appellant order. 8. That the appellant craves leave to add to amend alter modify substitute withdrawal delete or rescind all or any of the above grounds of appeal on or before the final hearing if necessary so arises.”
ITA. No.304/Ind/2024 A.Y 2013-14:
“1. That in the facts and circumstances of the case the very initiation of proceeding u/s 147 and issuance of notice u/s 148 are bad in law, invalid therefore, the assessment is liable to be annulled. 2. That in the facts and circumstances of the case the initiation of proceeding u/s 147/148, and completion of assessment order u/s 147 and appellate order under section 250 are bad in law as well as on facts and are liable to be annulled. 3. That in the facts and circumstances of the case the appellant did not get the opportunity of being heard and hence the order is against the natural justice of law. The Learned CIT Appeals upheld the ex parte order passed
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ITANos.303 to 305/Ind/2024 Geeta Bai by the Ld. AO with addition of Rs.19,80,000/- to the income of appellant which is bad in law and erroneous. 4. That in the facts and circumstances of the case the appellate and assessment orders are passed in haste without providing any opportunity to the appellant which is against the principles of natural justice. 5. That in the facts and circumstances of the case the addition of Rs. 19,80,000/- has been made in the hands of the appellant without any cogent evidence merely on the basis of surmises and conjectures. 6. That in the facts and circumstances of the case no cost of acquisition, cost of improvement and expenses relating to transfer of land has been considered which is bad in law and erroneous. 7. That in the facts and circumstances of the case the entire amount of capital gain was exempt under section 54F since the appellant had constructed residential house out of the sale proceeds which is not considered by the CIT Appeals whilst passing the appellant order. 8. That the appellant craves leave to add to amend alter modify substitute withdrawal delete or rescind all or any of the above grounds of appeal on or before the final hearing if necessary so arises.”
ITA. No.305/Ind/2024 A.Y 2013-14:
“1. That in the facts and circumstances of the case the very initiation of proceeding u/s 147 and issuance of notice u/s 148 are bad in law, invalid therefore, the assessment is liable to be annulled. 2. That in the facts and circumstances of the case the initiation of proceeding u/s 147/148, and completion of assessment order u/s 147 and appellate order under section 250 are bad in law as well as on facts and are liable to be annulled. 3. That in the facts and circumstances of the case the appellant did not get the opportunity of being heard and hence the order is against the natural justice of law. The Learned CIT Appeals upheld the ex parte order passed by the Ld. AO with addition of Rs.4,37,500/- to the income of appellant which is bad in law and erroneous. 4. That in the facts and circumstances of the case the appellate and assessment orders are passed in haste without providing any opportunity to the appellant which is against the principles of natural justice. 5. That in the facts and circumstances of the case the addition of Rs.4,37,500/- has been made in the hands of the appellant without any cogent evidence merely on the basis of surmises and conjectures. 6. That in the facts and circumstances of the case no cost of acquisition, cost of improvement and expenses relating to transfer of land has been considered which is bad in law and erroneous. 7. That in the facts and circumstances of the case the entire amount of capital gain was exempt under section 54F since the appellant had Page 4 of 7
ITANos.303 to 305/Ind/2024 Geeta Bai constructed residential house out of the sale proceeds which is not considered by the CIT Appeals whilst passing the appellant order. 8. That the appellant craves leave to add to amend alter modify substitute withdrawal delete or rescind all or any of the above grounds of appeal on or before the final hearing if necessary so arises.”
At the time of hearing Ld. AR has submitted that CIT(A) has
passed the impugned order ex-parte when there was no response
on behalf of the assessee to the notices issued by CIT(A). He has
pointed out that the appeals of the assessee were dismissed due to
the reasons that despite the notices there was no submission made
on behalf of the assessee. The Ld. AR has submitted that the
assessee has not received any notice of CIT(A) and therefore the
assessee could not file any submissions before CIT(A). He has
further submitted that the A.O while framing the assessment u/s
144 r.w.s. 147 of the Act has made the additions of the entire sale
consideration by treating the same as Long Term Capital Gain.
Thus he has submitted that the matter is required to be
reconsidered for allowing the deduction on account of cost of
acquisition as well as deduction u/s 54 of the Act. The Ld. AR has
pleaded that the impugned order may be set aside and the matter
may be remanded to the record of the A.O for fresh adjudication
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ITANos.303 to 305/Ind/2024 Geeta Bai after considering the relevant details and evidence to be filed by the
assessee.
On the other hand Ld. Departmental Representative has
raised no objection if the matter is remanded to the record of the
A.O for fresh adjudication.
Having considered the rival submissions and careful perusal
of the impugned order we note that the CIT(A) has passed the
impugned order ex-parte and dismissed the appeal of the assessee
on the ground that no submissions have been made by the
assessee. We further note that CIT(A) has not given the details of
any notices of hearing issued to the assessee for the impugned
order. Further A.O while framing the assessment on best judgment
basis and assessed the entire sale consideration to tax without
considering the cost of acquisition. Hence, in the facts and
circumstances of the case we are of the considered view that the
matter requires reconsideration at the level of the A.O for assessing
the capital gain if any after taking into consideration the cost of
acquisition as well as the claim of deduction u/s 54 of the Act to be
substantiated by the assessee by filing relevant details and
evidence. Accordingly, the impugned orders of CIT(A) for the Page 6 of 7
ITANos.303 to 305/Ind/2024 Geeta Bai Assessment Year 2013-14, 2014-15 and 2015-16 are set aside and
all three matters are remanded to the record of jurisdictional A.O
for fresh adjudication after giving an opportunity of hearing to the
assessee.
In the result appeals of the assessee for Assessment Year
2013-14, 2014-15 and 2015-16 are allowed for statistical purpose.
Order pronounced in the open court on 23.09.2024.
Sd/- Sd/-
(B.M. BIYANI) (VIJAY PAL RAO) Accountant Member Judicial Member
Indore, 23.09.2024 Dev/Sr. PS
Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Sr. Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore
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