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TMI Blog2022 (1) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... ash, Sr. DR ORDER PER KUL BHARAT, JM : This appeal by the assessee is directed against the order of the Ld. CIT(A)-14, New Delhi dated 10/12/2018, pertaining to the Assessment Year 2010-11. The assessee has raised following grounds of appeal:- "1. That on the facts and in the circumstances of the case, the Id. CIT(A)-14, New Delhi has erred both on facts and in law in rejecting the contention of the appellant that the impugned order is not sustainable, as the same has been passed without providing proper and reasonable opportunity to the appellant to present its case and the order is at variance with principles of audi alteram partem and passed in hot haste to finalize time barring assessment. 2. That on the facts and in the circumstances of the case, the order passed by the Id. Commissioner of Income Tax (Appeals)-14, New Delhi is bad both in the eye of law and on facts. 3. That on the facts and in the circumstances of the case, the Id. CIT(A)-14, New Delhi has erred both on facts and in law in rejecting the contention of the appellant that initiation of the re-assessment proceeding and reassessment order are bad both on facts and in law and liable to be quashed, as the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 015 . 9. That on the facts and in the circumstances of the case, the Id. CIT(A)-14, New Delhi has erred both on facts and in law in rejecting the contention of the appellant that re-assessment proceeding or the order passed by the Id. A.O are bad and liable to be quashed on account of failure of the Id. A.O to dipose of the objections raised by the appellant against the initiation of proceedings by way of an order and by communicating such order to the appellant. 10. That on the facts and in the circumstances of the case, the Id. CIT(A)-14, New Delhi has erred both on facts and in law in rejecting the contention of the appellant that the re-assessment order passed by the Id. A.O is bad and liable to be quashed as the same has been re-opened on the basis of reasons, which are vague and incomplete and further have been recorded without application of mind on the part of the Id. A.O. 11. That on the facts and in the circumstances of the case, the Id. CIT(A)-14, New Delhi has erred both on facts and in law in rejecting the contention of the appellant that the gain resulting from agricultural land was not liable to be considered as income u/s 45 of the Act having regard to provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17, but no one attended. Therefore, the Assessing Officer proceeded to make assessment u/s 144 of the Act and made addition of ₹ 42,89119/-, in respect of the long term capital gain. Thus, assessed income at ₹ 44,47,700/- against the declared income of ₹ 1,58,594/-. 3. Aggrieved by this, the assessee preferred appeal before the Ld.CIT(A) who after considering the submissions sustained the addition as made by the Assessing Officer and dismissed the appeal of the assessee. 4. Aggrieved against this, the assessee is in the present appeal. 5. No one appeared on behalf of the assessee. It is seen from the records that on various dates, neither assess nor any person authorized on his behalf have been appearing. The notice sent through speed post is returned unserved. The assessee has not provided any other address to the registry. Therefore, the appeal was taken up for hearing in the absence of the assessee and is being disposed off on the basis of the material available on record. 6. It is seen from the record that the present appeal is barred by time, the assessee has filed application seeking condontion of delay. The contention of the assessee is that the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the non providing and conducting the proper enquiries by the assessing authority in respect of the land in question whether the land was capital asset or not this issue was not examined by the Lower Authorities. 12. In respect of these grounds, Ld. Sr. Departmental Representative has submitted that the assessee was negligent throughout. He did not provide relevant evidences to the assessing authority. He submitted, therefore, the Assessing Officer was justified in making addition in respect of the capital gain assessing of the transfer of the capital asset. 13. I have heard the Ld. DR and perused the material available on record. I find that the Assessing Officer decided the issue in the absence of the assessee by observing as under:- "Thereafter, the ease has been fixed for hearing by issuing of notice u/s 143(2) dated 26.12.2017 and statutory notices 142(1) of the 1,13 Act. 1961 were issued and asked the asseesee to furnish the documents and any other evidence in support of assessee ease. In response CA Sh. Kalpit Sultania, A.R. of the assesses attended the assessment proceedings and filed partly submission on 27.12,2017 and case was adjourned to next date 28 12.2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 451(4- 14), 561/3(0-19), 603)4-16), 604 (4-16), 605 (4-16), 455/2(0-12) total area 26 Bighas 17 Biswas situated in the village of Jaffarpur alias Hiran Kudna. Delhi-110041, being a 4th part 1/3 share for a consideration of ₹ 2,96,95,000/- on 6/6/2009 as per sale deeds of agricultural land in which assessee's share has 4th part 1/3rd of the above amount of . ₹ 97,62,499/- in sale of both the lands during the A.Y 2009-10 relevant to A.Y. 2010-11 taken as total sale consideration of agricultural land while computing Long Term Capital Gain income of the above land. The circle rate per ace of agricultural land in Delhi for the year 1981-82 was ₹ 3,32,152/-. Now long term capital gain is calculated as under: Sale consideration 72,91,667/- Land: 27 Bigha 11 Biswa -(27x20)+ 11= 540+11= 551 Biswas Share = 1/12 -551/12= 45.92 Biswas= 45.92/96 =0.48 Acre Less: ICOA = 0.48 Acre x 332150x632 100 Long Term Capital Gain = 10,07,610 Less: = 62,84,057 = 19,94,938/- 42,89,119/- Therefore, I am satisfied that assessee has concealed his income penalty u/s 271(1) 1 of the I.T. Act, 1961 is being initiated separately on this issue by issuing a penalty notice. (Add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount not spent till the date of filing of return is required to be deposited in the specified bank account. In the present case no such details are available. It is noticed that the AO has still, allowed the claim under section 54F of ₹ 19,94,938/-. Apparently the assessee is claiming extra deduction which cannot be allowed for want of evidence. Moreover, if the claim in the case of assessee or his uncles has been wrongly allowed, it is for the Principal Commissioner of Income Tax to take appropriate action u/s 263." 15. From the above findings of the Lower Authorities, it is clear that the issue whether the land was an agricultural land and did not fall within the definition of capital asset was not adverted and adjudicated. Therefore, under these facts, the impugned order is hereby set aside and the issue whether the land as transferred fall within the definition of capital asset u/s 2 (14) of the Act. If yes, whether the assessee was entitled for any deduction u/s 54 of the Act. The A.O is, therefore, directed to decide these issues after presiding adequate opportunity of hearing to the assessee. Ground Nos. 11 to 14 are allowed for statistical purpose. 14. Ground No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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