ANUPAMA STHAPAK,JABALPUR vs. INCOME TAX OFFICER WARD 1(3), JABALPUR

1. 1. 1. 1. 1. “1. The learned Commissioner of Income tax (Appeal) of NFAC New Delhi was not justified in confirming the additions made by the AO without considering the reply and documents filed by the appellant during the course of hearing and without following the spirits of faceless appeals scheme and have just passed the order to show the disposal against his pendency.

The learned Commissioner of Income tax (Appeal) of NFAC New Delhi was not justified in confirming the additions made by the AO only on the basis of statements of facts which was filed by the appellant during the filing of appeal and have unnecessary burden the Hon’ble Tribunal and appellant with the present appeal as on perusal of order Hon’ble Tribunal will find the it has only copied the order passed by AO and no efforts was done to even go through the detailed reply and documents filed by the appellant during the course of assessment proceeding.

The learned Commissioner of Income tax (Appeal) of NFAC New Delhi was not justified in confirming the action of AO to take the value of cost of acquisition of property at Rs.2,50,90,876 against Rs. 2,62,88,389 taken by the appellant and also cost of improvement at Rs. 18,69,383 against Rs. 19,53,664 shown by the appellant without appreciating that it is settled law that fair market value of the area should be taken as cost of acquisition as various factors like location, area, size, infrastructure facilities around the area, potential future development have to be taken into consideration and the value was taken by the AO without giving any Assessment Year: 2016-17 2 good reasons and by ignoring the submissions made by the appellant before both the authorities.

The learned Commissioner of Income tax (Appeal) of NFAC New Delhi was not justified in confirming the action of AO without appreciating the fact that the property sold is residential property and not the plot and appellant have paid municipal tax, electricity bill regularly and also stamp duty was charged by the stamp duty authority by treating it as building and further both the authority have failed to consider that appellant have spend substantial amount in repairing of this property in previous year and rental income was also offered till assessment year 2015 - 16 and if AO is having any dought he should have visited the spot which he failed to do even though it was within 2 KMS from his office .

The learned Commissioner of Income tax (Appeal) of NFAC New Delhi was not justified in confirming the action of AO in not allowing the deduction of Rs. 92,50,000 with respect to investment done in new property and Rs.50,00,000 deposited in capital gain account which was duly withdrawn for the purpose and payment on account of expenses done for the construction without even going through the reply and documents filed by the appellant.

The learned Commissioner of Income tax (Appeal) of NFAC New Delhi was not justified in confirming the action of AO in not allowing the genuine claim of deduction under section 54 as appellant have filed all the details during the assessment proceedings as well as during the appellate proceedings and without prejudice to above presuming but not accepting if it was plot than also appellant is entitled for deduction under section 54F of the IT Act as appellant if invested whole amount of capital gain in construction of new property.

The appellant craves for leave to amend, add to or omit any ground up to the time of hearing of the appeal.” (B) The facts of the case, in brief, are that in this case, the assessee is an individual and filed his return of income on 15.10.2016, declaring total income at Rs.8,60,180/-. In the case of the assessee, the Assessing Officer (“AO”, for short) completed the assessment proceedings and passed assessment order dated 29.12.2018 u/s 143(3) of Income Tax Act, 1961 (“Act”, for short) and determined the total income of the assessee at Rs.1,61,42,256/- as against returned income of Rs.8,60,180/-. In the aforesaid assessment order, an addition of Rs.1,52,82,076/- was made by the AO. Being aggrieved with the addition made by the Assessing Officer, the assessee carried the matter in appeal before the learned CIT(A). The learned CIT(A) has dismissed the appeal of the assessee. Now the assessee is in appeal before the Income Tax Appellate Tribunal against the aforesaid impugned appellate order dated 28.12.2023 passed by learned CIT(A). In the course of appellate proceeding in Income Tax Appellate Tribunal Assessment Year: 2016-17 3 (ITAT), a paper book containing the following particulars was filed from the assessee’s side: - S. PARTICULARS No. 1 Copy of ITR and computation of income for assessment year 2016-17 and also for 2015-16 2 Copyof purchase deed and details of improvement 3 Copy of sale deed (5) 4 Copy of reply filed before AO on 10.12.2018 5 Copy of reply along with capital gain account 6 Copy of ledger of purchase of plot and house construction along with purchase deed of plot 7 Copy of reply filed on 27.12.2018 along with electricity bill, payment receipt of property tax and ledger copy of property tax 8 Copy of e acknowledgement and reply filed before learned CIT Appeals 9 Copy of judgment passed by Hon’ble Agra Bench in dated 23.07.2010 10 Copy of judgment passed by Hon’ble Delhi Bench in dated 28.03.2017 (B.1) In ground no. 1 of the appeal, the assessee has contended that the impugned order passed by the Ld. CIT(A) was issued without considering the reply and the documents filed by the appellant during the course of the hearing. At the time of hearing before us, the Ld. Counsel for the assessee reiterated this contention. The core dispute in this case, is whether the property sold by the assessee was merely a piece of land, (as contended by the Revenue) or a building constructed on the land (as contended by the assessee) The assessee has contended that the property sold was a building existing at the time of sale, which was subsequently demolished after the transfer of the property. However, the Assessing Officer did not accept this contention, primarily relying on the description of the property in the transfer deed as a “dismantled house”. The assessee placed reliance on electricity bill, photographs of the building, and the disclosure of income under the head “Income from House Property” in the returns of income of earlier years. However, from the materials on record, it is not possible to reach a conclusive finding of fact as to whether the building was in existence at the time of transfer or had already been demolished. The assessment order and the impugned appellate order have been passed without full consideration of the submissions made by the assessee and the evidences placed on record. We are of the view that the issue in dispute requires further examination at the level of the Assessing Officer so that all necessary evidences for coming to the conclusion are placed on record. In Assessment Year: 2016-17 4 view of the foregoing, and considering the submissions made; the order of learned CIT(A) is set aside and restored back to the file of the Assessing Officer with the direction to pass de novo assessment order in accordance with law after providing reasonable opportunity of being heard to the assessee. The Ld. Counsel for the assessee as well the Ld. Departmental Representative for Revenue were in agreement with this, at the time of the hearing. All grounds of appeal