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TMI Blog2016 (5) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the assessee as well as cross appeal filed by the revenue are being disposed by way of consolidated order to avoid repetition of discussion. 2. Appellant, Shri Umrao Singh (hereinafter referred to as the assessee ), by filing the present appeal sought to set aside the impugned order dated 07.03.2012 passed by the Commissioner of Income-tax (Appeals), Faridabad qua the assessment year 2007-08 on the grounds inter alia that :- 1.0. That on the fact and in the circumstances of the case, the Ld. Commissioner of Income Tax (Appeals) [here in after referred to as CIT (A)] has grossly erred in dismissal of appeal by the appellant that the assessment proceedings ii] s 148 of the Act, initiated by the Ld. AO in relation to determination of capital gain and/ or imposition of tax and interest with reference thereto, the quantification of taxable income, the tax liability, including interest and penalty proceedings, under normal provisions of the Act is void-ab-initio, erroneous, unjustified, wholly arbitrary and bad in law, on the following grounds: (each grounds/facts is prejudice to each other):- 1.1 That the notice issued u/ s 148 of the Act was not served to the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement amounting to ₹ 61,90,690/ - out of the total claim of the appellant of ₹ 66,38,684/-. 7.0 That on the fact and circumstances of the case and without prejudice to the above grounds, the Ld. CIT (A) was not justified in disallowing the claim of the appellant on deduction on account of investment in construction of newly residential house amounting to ₹ 31,72,879/- out of the total claim of the appellant of ₹ 1,56,72,879/- u/ s 54F of the Act. 8.0 That the appellant craves leave, to add, to amend, to modify, to rescind, supplement or alter any ground stated herein above either before or at the time of hearing of the appeal. GROUNDS RAISED BY THE REVENUE IN THE CROSS APPEAL : 1. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred on facts and in law in allowing the deduction of ₹ 4,47,994/- for indexed cost of acquisition while computing the LTCG even when no claim was made by the assessee though more than sufficient opportunity was given and there is no provision in the Income Tax Act as to allow the deduction/exemption which was not claimed in the return of income as held by the Hon'ble Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of estimation only. Ld. CIT(A) has held that 'however, since the appellant has not furnished bills in support of entire investment and it cannot be inferred that the amount withdrawn from the bank account was invested in construction only, I deem it fair to estimate the investment of ₹ 1.25 crores in the construction. This observation of Ld. CIT(A) is without any concrete evidence such as proof of ownership of the plot on which construction made, copy of approved construction map/plan of the new house, completion certificate, complete bills supporting the claim of investment in construction of new residential house etc. In absence of these, it is not verifiable as when the construction was completed and how much investment was made. 8. That the valuation report on the basis of which Ld. CIT(A) has estimated the investment in construction is from a private architect and not from an approved architect. Further, the architect has certified that the constructed building is a farm house and not a residential house .. The intent of the legislature behind exemption u/s 54F is only to satisfy the housing needs of the general public and not for the farm houses for leisure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order allowing deductions of ₹ 4,47,994/- for index cost of acquisition while computing long term capital gain, allowing deduction of ₹ 48,78,450/- u/s 54B and allowing the deduction of ₹ 1.25 crores u/s 54F on the basis of estimation only, filed the present cross appeal. 6. We have heard the ld. Authorized Representatives of the parties to the appeal, gone through the documents relied upon and orders passed by the revenue authorities below in the light of the facts and circumstances of the case. 7. During the appellate proceedings before the Bench, the assessee has moved an application for admission of additional grounds to the following effect :- 1) That neither intimation u/sec. 143(1) nor notice u/sec. 143(2) of the Income Tax Act, 1961 were issued by the learned Assessing Officer on the return of income filed by the appellant on 08.01.2009 which is a mandatory requirement in the law.' This return of income had been relied upon by the Hon'ble Commissioner of Income Tax (Appeals) in deciding the appeal of the appellant for the year under appeal. Thus order passed by the Hon'ble Commissioner of Income Tax (Appeals) based on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested with Income Tax Officer, Ward 1 (5), Faridabad. Hence, the return filed with wrong jursidcition has to be treated as non-est, invalid in the eye of law and no cognizance of same can be taken. Consequently, the contentions raised that all primary facts necessary for assessment were fully and truly disclosed in the return .. 11. When undisputedly the assessee has filed the return of income qua the assessment year 2007-08 on 08.01.2009 with Income-tax Officer, Ward 2 (4), Faridabad, though it was required to be filed with ITO, Ward 1 (5), Faridabad, the CIT (A) was under legal obligation to provide an opportunity of being heard to the assessee by filing return of income with the competent revenue authority or he would have transferred the return of income dated 08.01.2009 to the competent revenue authority for further necessary action. AO in the assessment order has proceeded on the premise that no return of income was filed by the assessee and proceeded to reopen the assessment u/s 148 of the Act. So, the impugned order passed by the CIT(A) by treating the income-tax return filed by the assessee, though with ITO having no jurisdiction as non est and invalid is not sustain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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