2022 (7) TMI 857 - AT - Income Tax

Capital gain - deduction of indexation value of fair market value as on 01/4/1981 - HELD THAT - On perusal of Form No. 35 and grounds of appeal annexed therewith, we find that the assessee has raised specific ground of appeal for allowing indexation cost as on 01/04/1981. However, this ground of appeal has not adjudicated by the ld. CIT(A). We also find that the property was acquired prior to 01/04/1981 by the predecessor in interest of assessee, thus the cost of acquisition for the purpose of indexation has to be taken from the year 1981, therefore, we direct the Assessing Officer to grant deduction on the basis of indexed value as on 01/04/1981. Needless to direct that before passing the order on this issue/claim, AO shall grant opportunity of hearing to the assessee and to pass the order in accordance with law. The assessee is also directed to provide complete details to the assessing officer and not to cause further delay. In the result, the limited submissions made by the assessee against various grounds of appeal raised by the assessee are allowed for statistical purpose.

Summary

Issues:
Delay in filing appeal before the Tribunal, Condonation of delay, Indexation cost of fair market value as on 01/04/1981, Assessment of long term capital gain, Adequacy of grounds of appeal.

Delay in filing appeal before the Tribunal:
The appeal by the assessee was filed 462 days after the order of the learned Commissioner of Income Tax (Appeals) was passed. The delay was attributed to the assessee pursuing an alternative remedy before the Commissioner instead of directly appealing to the Tribunal. The Assessing Officer's order giving effect was passed on 04/04/2017, and the appeal before the Commissioner was dismissed on 31/05/2018. The Tribunal considered the reasons for the delay, including the bonafide belief of the assessee in following legal advice, and ultimately decided to condone the delay due to reasonable cause.

Condonation of delay:
The Tribunal analyzed the timeline of events leading to the delay in filing the appeal and considered the submissions of both parties. The assessee had pursued an alternative remedy before the Commissioner based on legal advice, which was later found to be incorrect. Citing the decision of the Hon'ble Jammu & Kashmir High Court, the Tribunal found that the assessee had shown a reasonable cause for the delay, leading to the condonation of the delay in filing the appeal.

Indexation cost of fair market value as on 01/04/1981:
The issue revolved around the assessee's entitlement to indexation cost of the fair market value as on 01/04/1981. The Assessing Officer calculated the value of the property based on the original cost of purchase in 1928, which was contested by the assessee. The Tribunal directed the Assessing Officer to grant deduction based on the indexed value as on 01/04/1981, considering that the property was acquired before that date. The Assessing Officer was instructed to provide an opportunity of hearing to the assessee before passing the order on this issue.

Assessment of long term capital gain:
The Assessing Officer had made an addition to the long term capital gain based on the alleged value of the property adopted by the Stamp Valuation Authority. The DVO later determined the value of the sale consideration, leading to a revised long term capital gain amount. The Tribunal directed the Assessing Officer to consider the indexation cost and pass the order in accordance with the law after providing a hearing to the assessee.

Adequacy of grounds of appeal:
The Tribunal noted that specific grounds of appeal related to the indexation cost had not been adjudicated by the Commissioner. Upon reviewing the Form No. 35 and grounds of appeal, the Tribunal directed the Assessing Officer to grant deduction based on the indexed value as on 01/04/1981. The assessee was instructed to provide complete details to the Assessing Officer to avoid further delays.

In conclusion, the appeal of the assessee was allowed for statistical purposes only, with directions given to the Assessing Officer to consider the indexation cost and pass the order accordingly.