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Income Tax Appellate Tribunal, NAGPUR “SMC” BENCH : NAGOUR
Before: SHRI SATBEER SINGH GODARA
IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR “SMC” BENCH : NAGOUR [THROUGH VIRTUAL HEARING AT ITAT : PUNE] BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER I.T.A.No.236/NAG./2022 Assessment Year 2012-2013 Shri Rajendra Gargishankar Mishra, 17A, Palm Road, The Income Tax Officer, Civil Lines, Nagpur. Ward-2(1), Aayakar Bhavan, vs. PIN – 440 001. Civil Lines, Nagpur – 440 001. Maharashtra. Maharashtra. PAN ABAPM6343D (Appellant) (Respondent) For Assessee : Shri Abhay Agrawal, Advocate For Revenue : Shri Abhay Y. Marathe, Sr. DR Date of Hearing : 19.03.2024 Date of Pronouncement : 19.04.2024 ORDER
This assessee’s appeal for assessment year 2012-2013 arise against the National Faceless Appeal Centre [in short the “NFAC”] Delhi’s Din and Order No.ITBA/NFAC/S/250/2022- 23/1043411014(1) dated 13.06.2022, involving proceedings u/s.143(3) r.w.s.147 of the Income Tax Act, 1961 (in short “the Act”).
Heard both the parties. Case file perused.
The assessee pleads the following substantive grounds in the instant appeal :
“Whether in the facts and circumstances, the order passed by the learned AO is bad in law.
2 ITA.No.236/NAG./2022 2. Whether in the facts and circumstances, the learned AO erred in issuing notice under section 148 without satisfying the prerequisite conditions.
Whether in the facts and circumstances, the learned CIT(A) erred in confirming addition of Rs.36,07,594 made by learned AO towards long term capital gains.
4. Whether in the facts and circumstances, the learned CIT(A) and learned AO erred in not appreciating the fact that, the sale transaction was completed at the time of entering into agreement to sell, receipt of sale consideration and handing over of possession, in the financial year 2010-11.
5. Whether in the facts and circumstances, the learned CIT(A) and learned AO erred in not appreciating that, the transaction was completed in AY 2011-12 and the resultant share of capital gains was shown by the assessee in his return of income for AY 2011-12.
6. Whether in the facts and circumstances, the learned CIT(A) and learned AO erred in not appreciating the fact that, long term capital gains on subsequent sale transaction evidenced by sale deed dated 09/02/2012 was duly shown by the power of attorney holders in their respective return of income filed for AY 2012-13. That the same transaction could not be taxed in the hands of two persons, which would lead to double taxation.
7. Whether in the facts and circumstances, the learned CIT(A) erred in not granting an opportunity of being heard and VC
3 ITA.No.236/NAG./2022 facility request was not enabled on the IT portal thereby, breaching the principles of natural justice. 8. Whether in the facts and circumstances, without prejudice to other Grounds, the learned CIT(A) and learned AO erred in not waiting for valuation report from the DVO and confirming the addition in a hurried manner. 9. The Appellant prays leave of the Hon’ble Tribunal to add, amend, alter any of the Grounds of Appeal.”
3. Both the learned representatives first of all invited my attention to the NFAC’s detailed discussion upholding the impugned assessment findings as under :
4 ITA.No.236/NAG./2022
5 ITA.No.236/NAG./2022 This leaves the assessee aggrieved.
Learned counsel is fair enough in not pressing for assessee’s challenge to validity of sec.148 proceedings. Rejected accordingly.
Next comes the sole issue on merits regarding long term capital gains addition made in assessee’s hands of Rs.36,07,594/-. Learned counsel vehemently argued that both the lower authorities have erred in law and on facts in assessing the impugned long term capital gains in assessee’s hands despite the fact that he; along with other co-vendors, had already executed the transfer agreement way-back on 10.02.2011 which also indeed delivery of possession.
The Revenue has drawn strong support from both the learned lower authorities action rejecting the assessee’s arguments as per the NFAC’s detailed discussion.
I have given my thoughtful consideration to assessee’s instant first and foremost argument and find no merit therein. It is made clear that the assessee claims to have first executed a general power of attorney on a stamp paper of Rs.100/- on 10.02.2011 which followed the sale deed in issue dated 09.02.2012 in the relevant previous year. There is no material in the case file that the assessee has ever clarified about any such agreement dated 10.02.2011 in the impugned sale deed which could lead to acceptance of his stand. For the reasons best known to him, he has not placed on record the said sale deed even in the instant case file
6 ITA.No.236/NAG./2022 as well. Faced with this situation, I hereby quote the relevant procedure in Chapter-X containing secs.47 to 50, in the Registration Act, 1908 that all registered documents override such oral agreements. The assessee’s substantive ground(s) to this effect stand declined, therefore. The lower appellate findings are upheld.
Next comes equally important aspect of computation of the impugned long term capital gains u/sec.50C of the Act. A perusal of the assessment order dated 23.12.2019 clarifies that the Assessing Officer had made a reference to the DVO for determining the fair market value and framed the impugned assessment being a “time barred” case despite the fact that no such report came from the DVO’s end. There is no detailed discussion qua this clinching fact even in the NFAC’s lower appellate discussion as well. Faced with this situation, I deem it appropriate to restore the instant latter issue back to the learned Assessing Officer for his afresh appropriate adjudication, preferably within three effective opportunities of hearing to the assessee, in consequential proceedings. Ordered accordingly.
This assessee’s appeal is partly allowed for statistical purposes in above terms.
Order pronounced in the open Court on 19.04.2024.