2021 (7) TMI 366 - AT - Income Tax

Ex-parte appeal dismissed by CIT-A - AO completed the assessment u/s. 144 r.w.s. 147 - AO computed the Long Term Capital Gains by reducing the index cost of acquisition and brought the LTCG - claim of exemption u/s. 54 of the Act was denied for want of proof - HELD THAT - Having regard to the fact that both the assessment as well as first appeal are decided ex parte, we deem it proper to remand the assessment to the file of the Assessing Officer for de novo consideration in accordance with law. However, the validity of the notice u/s. 148 which has already been decided by the Assessing Officer shall not be reconsidered. Assessee's appeal is partly allowed.

Summary

Issues:
Assessment Year 2015-16 - Validity of notice u/s. 148 - Consideration of registration charges in cost of acquisition - Denial of exemption u/s. 54 - Levy of interest u/s. 234B - Non-service of notice u/s. 143(2)

Analysis:

Validity of Notice u/s. 148:
The appeal pertains to the Assessment Year 2015-16 where the assessee, an individual, sold commercial property but did not file the Return of Income offering capital gains to tax. The Assessing Officer issued a notice u/s. 148, followed by a notice u/s. 142(1) when the assessee did not respond. The objections to reopening were rejected, leading to assessment u/s. 144 r.w.s. 147. The appellant contended that the notice u/s. 148 was improperly prepared and served, challenging the validity of the assessment. However, the Tribunal decided not to reconsider the validity of the notice u/s. 148, which had already been decided by the Assessing Officer.

Consideration of Registration Charges:
The appellant argued that the registration charges were not considered in computing the cost of acquisition for determining capital gains. The Assessing Officer and CIT(A) did not include registration charges while determining the indexed cost of acquisition. The appellant sought a remand for fresh consideration, emphasizing the importance of including registration charges in the cost of acquisition.

Denial of Exemption u/s. 54:
The claim for exemption u/s. 54 of the Income Tax Act was denied due to lack of proof. The appellant sought a remand for a fresh assessment to provide the necessary evidence for claiming the exemption under section 54.

Levy of Interest u/s. 234B:
The CIT(A) confirmed the levy of interest u/s. 234B of the Income Tax Act. The appellant challenged this decision, seeking relief from the interest imposed under section 234B.

Non-Service of Notice u/s. 143(2):
The appellant raised concerns about the non-service of notice u/s. 143(2) during the assessment proceedings. The absence of a valid notice u/s. 143(2) was highlighted as a procedural irregularity. The Tribunal, considering the ex parte nature of the assessment and appeal decisions, remanded the assessment back to the Assessing Officer for a fresh consideration in accordance with the law.

In conclusion, the Tribunal partly allowed the assessee's appeal, remanding the assessment for a fresh consideration while upholding the decision on the validity of the notice u/s. 148. The issues regarding the inclusion of registration charges, denial of exemption u/s. 54, levy of interest u/s. 234B, and non-service of notice u/s. 143(2) were addressed, emphasizing the need for a thorough and lawful assessment process.