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Jayaprakash Nagar Vill. Roja Jajalpur, Dadri, Gr. Noida, Noida Uttar Pradesh Vs. ITO Ward-1(5) Noida, Uttar Pradesh
March, 19th 2020
                                         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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