1 ITA No. 3862/Del/2019
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: `I-2 + SMC' NEW DELHI
BEFORE MS SUCHITRA KAMBLE, JUDICIAL MEMBER,
AND
SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER
ITA No. 3862/DEL/2019 ( A.Y 2009-10))
Jayaprakash Nagar Vs ITO
Vill. Roja Jajalpur, Dadri, Ward-1(5)
Gr. Noida, Noida Noida, Uttar Pradesh
Uttar Pradesh
AGEPN1384N
(APPELLANT) (RESPONDENT)
Appellant by None
Respondent by Sh. Jagdish Singh, Sr. DR
Date of Hearing 26.02.2020
Date of Pronouncement 19.03.2020
ORDER
PER SUCHITRA KAMBLE, JM
This appeal is filed by the assessee against the order dated 30/07/2018
passed by CIT(A)- l for Assessment Year 2009-10.
2. The grounds of appeal are as under:-
1. "On the facts and in the circumstances of the case the Ld CIT(A) has erred
in dismissing the appeal of the appellant as non-maintainable u/s 249 (4) (b)
of the Act for non-payment of the advance tax payable by the appellant and
such action is challenged on the ground of non-fulfillment of the proviso to
section 249(4), as per which, the said appellate authority, on application by
the appellant, was empowered to exempt the appellant from the operation of
the above provision of law and no such opportunity was allowed by the Ld
CIT(A).
2 ITA No. 3862/Del/2019
2, On the facts and in the circumstances of the case and also in law the
impugned assessment order need be set aside as the same has been passed
after incorrect assumption of jurisdiction by the AO u/s 147 of the Act as the
reason recorded u/s 148 suffers from lack of independent application of mind
by the AO and also the reasons recorded are based on the facts contrary to
the same on record.
3. The Ld. CIT(A) has erred in law and on the facts & in the circumstances of
the case upholding the addition of Rs. 29,90,450/- u/s 68 of the IT Act of
1961, ignoring the fact that the basic facts considered by the AO for making
such addition for assessing the long term capital gain were incorrect in as
much as the sale consideration of Rs 32,60,000/- taken by the AO was
incorrect and also the size of the property sold on which capital gain was
computed by the AO.
4. In the impugned assessment the Ld. CIT (A) has erred in law and on the
facts & circumstances of the case upholding the additions made by the AO
without application of mind the documents/ evidences furnished by the
appellant.
5. The Ld. CIT(A) has erred both in law and in facts of the case in passing
the impugned order without providing any opportunity to the appellant to
represent his case before himself."
3. The assessee is the owner of 65.20 sq yards out of the property sold
of 168.04 sq. yards. The Building was constructed on the joint property.
This house and land was transferred on 15/7/2008. The Assessing Officer
passed the Assessment Order for whole of the land and building and made
addition of Rs. 29,40,000/- in the hands of the assessee.
4. Being aggrieved by the assessment order, the assessee filed appeal
before the CIT(A). The CIT(A) dismissed the appeal of the assessee.
3 ITA No. 3862/Del/2019
5. At the time of hearing, none appeared for the assessee and there is no
application for adjournment. The notice has been duly served to the assessee.
Therefore, we are proceeding on the basis of the submissions made by the
assessee before the Assessing Officer as well as before the CIT(A).
6. The Ld. DR relied upon the assessment order as well as order of the
CIT(A).
7. We have heard the Ld. DR and perused the material available on record.
It is pertinent to mention that the CIT(A) while confirming the order of the
Assessing Officer has not at all given the reason as to how the Assessing
Officer has rightly adopted the value as per circle rate for computation of short
term capital gain. The CIT(A) also has not taken cognizance of the evidences
filed by the assessee before the Assessing Officer as well as before him.
Therefore, it will be appropriate to remand back this matter to the file of the
CIT(A) for proper adjudication of the appeal. Needless to say, the assessee be
given opportunity of hearing by following principles of natural justice. The
appeal of the assessee is partly allowed for statistical purpose.
8. In result, the appeal filed by the assessee is partly allowed for statistical
purpose.
Order pronounced in the Open Court on 19th March, 2020.
Sd/- Sd/-
(PRASHANT MAHARISHI) (SUCHITRA KAMBLE)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 19/03/2020
R. Naheed
Copy forwarded to:
1. Appellant
2. Respondent
4 ITA No. 3862/Del/2019
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT NEW DELHI
Date of dictation 26.02.2020
Date on which the typed draft is placed before the 27.02.2020
dictating Member
Date on which the typed draft is placed before the
Other Member
Date on which the approved draft comes to the Sr.
PS/PS
Date on which the fair order is placed before the
Dictating Member for pronouncement
Date on which the fair order comes back to the Sr. 19.03.2020
PS/PS
Date on which the final order is uploaded on the 19.03.2020
website of ITAT
Date on which the file goes to the Bench Clerk 19.03.2020
Date on which the file goes to the Head Clerk
The date on which the file goes to the Assistant
Registrar for signature on the order
Date of dispatch of the Order
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