2019 (8) TMI 638 - AT - Income Tax

Denial of natural justice - addition of capital gain - deciding the appeal by the CIT(A) ex-parte without giving sufficient opportunity - HELD THAT - CIT(A) had posted the case for hearing by issue of notices on 04.10.2017, 17.10.2017, 30.10.2018 and the request of the assessee to post the case for hearing in April / May 2016 was also considered and accordingly fixed the case for hearing on 03.07.2016. Even then, the assessee did not appear before the CIT(A). Therefore, we find no merit in the contention of the assessee that the Ld.CIT(A) has not given sufficient opportunity. As observed from the order of the CIT(A) that the Ld.CIT (A) has given sufficient opportunity, but the assessee did not avail the same.Therefore, this ground lacks merit, hence dismissed. Reopening of assessment u/s 147 - nature of Gain on property sold - HELD THAT - Assessee has sold the property consisting of a residential house located at Madhavadhara for a consideration of ₹ 10,00,000/- which was registered at SRO, Dwarakanagar, Visakhapatnam on 20.02.2008. Similarly, the assessee has also sold another property of vacant site admeasuring 495 sq.yds of site out of site of 826 sq.yds situated at Kurmannapalem, Visakhapatnam to M/s Vanadurga Constructions vide document No.5647/2007 dated 18.12.2007 at SRO, Gajuwaka, Visakhapatnam. AO found that though the assessee has not filed the return of income and the sale of property attracts capital gains tax. Having not filed the return of income, the AO rightly held that the income had escaped assessment, accordingly issued notice u/s 148. Hence, we do not find any merit in the ground raised by the assessee regarding validity of issue of notice u/s 148, hence, this ground is dismissed. Addition under the head short term capital gains and long term capital gains - HELD THAT - We have gone through the copy of the sale deed placed before us. The assessee also did not place any material with regard to the sale of the flat located at Madhavadhara and there is no dispute that the assessee has sold the flat situated at Madhavadhara on 20.02.2008. Since the assessee failed to furnish any information before the AO / CIT(A) or before this Tribunal, we hold that the AO has rightly brought the sale consideration received on sale of flat for taxation under the head short term capital gains . Accordingly, the appeal of the assessee is dismissed on this ground. Long term capital gains - sale of 495 sq.yds located at Kurmannapalem - as per assessee only the agreement to sale , hence, does not cover for the purpose of capital gains - HELD THAT - As gone through the sale agreement placed before us by the assessee in page No.10-21 of the paper book. The assessee had entered into agreement to sale coupled with power of attorney for a sum of ₹ 57,33,000/- on 12.03.2007. As per the recitals of the agreement, the assessee has given complete possession to the builder along with original sale deed or copies thereof and other papers relating to title. Further, once the assessee had entered into agreement of sale coupled with power of attorney and handed over the possession of the property to the vendee, the transfer is complete as provided u/s 47 - we hold that the sale of property attracts capital gains tax.

Summary

Issues:
Reopening of assessment and addition of capital gains under 'capital gains'.

Reopening of Assessment:
The assessee did not file the return of income, prompting the AO to issue a notice u/s 148 of the Income Tax Act, 1961, for scrutiny. The AO found that the assessee, a non-resident, had sold properties during the relevant financial year. Despite multiple notices and a show cause notice, the assessee did not respond, leading to the AO assessing the properties under 'long term capital gains' and 'short term capital gains'. The assessment was completed under 'best judgment'.

Appeal Before CIT(A):
The assessee's appeal before the CIT(A) was decided ex-parte as the assessee did not respond to notices issued. The appeal was dismissed in absentia.

Grounds of Appeal Before Tribunal:
The assessee appealed before the Tribunal on five grounds. Grounds 1 and 5 were general and did not require specific adjudication. Ground 2, related to the CIT(A) deciding the appeal ex-parte, was dismissed as the CIT(A) had provided sufficient opportunities which the assessee did not avail.

Validity of Notice u/s 148:
The AO issued a notice u/s 148 as the assessee had not filed returns despite selling properties that attracted capital gains tax. The Tribunal found no merit in the assessee's contention against the validity of the notice u/s 148.

Addition of Capital Gains:
The AO made additions under 'short term capital gains' and 'long term capital gains'. The assessee contended that the additions were not valid, but failed to provide necessary information. The Tribunal upheld the additions as the assessee did not furnish any material regarding the sales, leading to dismissal of the appeal on this ground.

Assessment of Long Term Capital Gains:
The assessee argued that the sale of a property was not complete, as it was only a sale agreement. However, the Tribunal found that the transfer was complete based on the agreement coupled with power of attorney, leading to the assessment of capital gains. The Tribunal upheld the AO's decision, citing a relevant High Court decision.

Conclusion:
The Tribunal dismissed the appeal of the assessee, upholding the assessment of capital gains on the properties sold. The order was pronounced on 19th July 2019.