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Income Tax Appellate Tribunal, COCHIN BENCH, COCHIN
Before: Shri Sanjay Arora, AM &Shri Manomohan Das, JM
O R D E R
Per Sanjay Arora, AM:
This is an appeal by the Assessee directed against the order dated 23.5.2022 by the National Faceless Appeal Centre, Delhi (CIT(A)), dismissing the assessee’s appeal contesting his assessment under section 147 r/ws.144B of the Income-tax Act, 1961 (`the Act’) dated 28.3.2022 for assessment year (AY) 2014-15.
Explaining the facts of the case, it was submitted by Shri Athul, the learned counsel for the assessee, that the assessment in the first instance was framed on 19.9.2016 (copy on record), denying the assessee deduction u/s.54F, claimed with reference to investment in a residential house at Rs.2,05,74,406, to the extent of 50% thereof inasmuch as the said investment was in the joint names of the assessee and his daughter, Sara Jake Punnan, marked as purchaser no.2 in the sale deed dated 16.10.2015, so that she was an equal owner of the said property. The assessee carried the matter in appeal. However, before the same could be disposed of, he settled his dispute under Direct Tax Vivad Se Vishwas Act, 2020 (DSV Act), paying the disputed tax at Rs.7,15,410. The ld. CIT(A), vide order dated 12.3.2021 (Ann. (AY 2014-2015) Ravi Chandy v. Asst. CIT 1),accordingly, dismissed the assessee’s appeal as infructuous, making reference to certificate in Form 5 issued under DSV Act on 05.3.2021 (copy on record). Subsequently, notice u/s.148(1) was issued on 31.3.2021, proposing to restrict the deduction u/s.54F, as against the investment of Rs.205.74 lakh, to the value stated in the conveyance deed, i.e., Rs.62.93 lakh. Assessment was made accordingly on 28/3/2022. In appeal, vide the impugned order the ld. CIT(A) dismissed the assessee’s appeal as the assessee had, as per the Revenue’s system data base, settled the tax dispute under DSV Act. The issue arising in the instant proceedings is entirely different, and there is no question of the same having been resolved. The same, it was prayed, be accordingly set aside, and the appeal restored to the file of the first appellate authority for a decision on merits.
We have heard the parties, and perused the material on record. 3.1 The appellate order under challenge, we are afraid, is wholly unmaintainable in law. It is firstly, an ex parte order. We say so as there is no reference therein to any hearing opportunity being extended to the assessee, or of his submissionsbeing, despite the said opportunity, having not been made. Two, it does not address the grounds of appeal
raised before the first appellate authority. It, treating the appeal as withdrawn, fails to consider that while the assessee opted for Vivad Se Vishwas Scheme on 19.6.2020, paying tax on 05.3.2021 on its acceptance, the instant proceedings were initiated only at the instance of the Revenue vide notice u/s.148(1) dated 31.3.2021. If the matter had been, as claimed, settled under DSV Act, it is the notice u/s.148(1) and the ensuing proceedings that stand to be cancelled/quashed, and not the assessee’s appeal preferred on being aggrieved by such notice, and the proceedings initiated thus. In fact, both the notice and the proceedings are valid, and sois the assessee’s appeal, being qua a wholly different matter, i.e., which of the two values, as stated in the conveyance deed, or in the Agreement between the parties, is to be considered for the purpose of deduction u/s. 54F, which speaks of ‘cost of the asset’; the assessee claiming to have paid a higher sum.The facts as recorded by the 2. (AY 2014-2015) Ravi Chandy v. Asst. CIT AO at para 6 of his order,also being qua the issue of valuation, agree with that stated by the assessee. That is, the impugned order is de hors the assessment order. 3.2 The assessee on being asked by the Bench during hearing to make out a prima facie case, adduced a receipt dated 04/2/2014 from the Builder, M/s. Kent Constructions (P.) Ltd., for a sum of Rs.2,05,74,06, further clarifying that the value stated in the conveyance deed is with reference to the stamp value.