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TMI Blog2023 (6) TMI 1422X X X X Extracts X X X X X X X X Extracts X X X X ..... agricultural land to claim the exemption or not. Since this issue has not been examined by the AO and Assessee didn t get an opportunity to make such a claim during assessment stage, we rely on the decision in the case of Tin Box Company [ 2001 (2) TMI 13 - SUPREME COURT] though in the context that if the assessee has not been granted proper opportunity before the AO, then it should be restored back to the AO for denovo assessment. Since we have found in the present case AO didn t examine the issue since assessee himself offered tax (LTCG) on sale of land and the assessment need to be made by AO which matters, therefore this issue is admitted by us and the same is restored back to the AO for the limited purpose of examining the claim of assessee as discussed. Therefore, we set aside the impugned order of the CIT(A) and remand the issue of sale of land at Igatpuri back to the file of the AO and direct the AO to examine this issue de-novo after hearing the assessee in accordance to law. Assessee is at liberty to file documents/material/written submission before the AO to substantiate its claim of agricultural land and exempt income on sale of it and AO to pass order in accordance to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd will not attract tax. Realizing his mistake, he filed an appeal before the Ld. CIT(A) on 31.03.2015 along with request for condonation of delay of 790 days. However, the Ld. CIT(A) declined to condone the delay as well as was of the view that the ignorance of assessee about law is not an excuse. According to him, even otherwise, the grievance of the assessee is not emanating from the assessment order because assessee has not made any such claim to have sold his agricultural land and the gain from it was not taxable. Rather, according to Ld CIT(A), the AO accepted the return of income wherein assessee has himself considered the profit from sale of land as taxable as LTCG of Rs.34,16,728/-. Therefore, according to him, since AO has accepted the return of income filed by assessee, now the assessee cannot turn back and blame the AO for his failure as to whether he should have offered the LTCG on sale of land for taxation or not. And the Ld. CIT(A) in the impugned order acknowledges that the assessee has filed additional evidence in respect of his claim that the asset in question which was sold was agricultural land and profit from it was not taxable. However, the Ld. CIT(A) was of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the Constitution of India prohibit AO to impose the tax without authority of law and even if due to mis-conception of law if an assessee offers tax, then it should not have been brought to tax because Article 265 of the Constitution prohibits such an action. The Ld. AR also cited the CBDT Circular No. 14/XL-35) dated 11/04/1955 wherein it has been clarified that AO was duty bound to inform the assessee benefit available as per law and allow the same while computing the assessable income and the department should not take advantage of assessee s ignorance to collect more tax. And cited the decision of the Hon ble Bombay High Court in the case of Nirmala L. Mehta Vs. CIT (269 ITR 1) where in the Hon ble High Court held that merely because income was inadvertently offered to tax, it no way take away the right of the assessee to contest the action of tax authority that the said income was not chargeable to tax. It would be gainful to reproduce the observation the Hon ble High Court wherein it was held as under: - The problem arose because the petitioner in her return for the assessment year 1988-89 filed on June 30, 1988, offered the prize money of the lottery to tax rather a fundam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution of India prohibit tax to be collected without authority of law, the assessee s ignorance cannot be a ground to refuse examination of the claim made by the assessee. Even though, inadvertently assessee offered the LTCG on sale of land, he ought to have been allowed to urge the claim before the Ld. CIT(A) because there is no estoppel against law; and the Article 265 of the Constitution prohibits tax authority to collect tax without authority of law. Therefore, in the interest of justice and fair play, we set aside the impugned order of the Ld. CIT(A) and admit this issue in respect of sale of land at Igatpuri on which assessee has offered LTCG to the tune of Rs.34,16,728/- which assessee is now claiming to be exempt from taxation being agricultural land. We note that the issue raised before us is a mixed question fact and law which need to be adjudicated on the basis of relevant material/documents as to whether the assessee s asset qualify to be agricultural land to claim the exemption or not. Since this issue has not been examined by the AO and Assessee didn t get an opportunity to make such a claim during assessment stage, , we rely on the decision of the Hon ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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