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TMI Blog2025 (4) TMI 1488X X X X Extracts X X X X X X X X Extracts X X X X ..... additional evidences given by the assessee by filing an application u/s 46A of the IT Rules by the assessee without giving the Assessing Officer an opportunity to examine such additional evidences filed during the course of appellate proceeding and therefore, has erred by violating the procedure laid down in Rule no. 46A of IT Rule, 1962. (iii). Law and on facts of the case by ignoring the A.O to examine such additional evidences and Ld. CIT (A) had accepted the additional evidence in the matter, the Ld. CIT(A) who is having co-terminus powers with that of the Assessing Officer should have calculated the taxable income of the assessee according to him or he should have held in his order as to whom this income belongs to but has failed to do so. 2. The appellant craves the leave to add or alter or withdraw any other ground(s) during appellate proceedings" 2. The assessee has filed a Cross Objection in which it has held that the ld. CIT(A), even while allowing relief to the assessee should also have held that the assessment proceedings were illegal, bad in law and wholly without jurisdiction as they were void ab initio and therefore, not in accordance with the relevant provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation but were not found to be acceptable. The ld. AO noted that from the sale deed submitted by the assessee, it appeared that the assessee was a loan defaulter and the bank had attached the property and sold it off on auction and the assessee had not properly explained the reasons for the bank selling off the property on auction. However, since the assessee was the actual owner of the property and in the absence of proper details and credible evidences, the entire sale amount of the property i.e. Rs. 5,28,97,000/- was treated as the long term capital gains in the hands of the assessee and taxed accordingly. 4. Aggrieved with this assessment order, the assessee went in appeal to the National Faceless Appeal Centre. Before the ld. CIT(A), it was submitted that the firm was established long back and was regularly assessed to tax upto the assessment year 2016-17. The returns and the audited final accounts for the assessment year 2016-17 was available on record with the Department. However, since the firm was incurring huge losses, it closed down its business in August, 2016, which was duly informed to ITO-1(4), Shahjahanpur on 6.04.2017. The assessee firm had a secured loan from Pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the entire auction sale amount being on account of the value of land, which belonged to the partner Smt. Shakuntla Devi, value of building structure and plant and machinery and which was supported by the balance-sheet and audit report of the assessee firm, the ld. AO had not given any cognizance to these facts. Without prejudice to this ground, the assessee also contended that the ld. AO had erred in not deducting any cost / index cost out of the auction sale proceeds and in assuming the entire proceeds as capital gains. The ld. AO had not deducted WDV of building, plant and machinery out of the sale proceeds. He had also erred in not taking into consideration the brought forward unabsorbed depreciation on these two assets, though the entire details were available on record with Department in the returns and audit reports which were filed online. It was submitted that the WDV of the building structure and plant and machinery were the fair market value of the assets owned by the firm and the firm had nothing to do with the land which did not belong to the firm, but rather belonged to the partner. In conclusion, it was submitted that the assessee had only been given 23 hours to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be in receipt of money and the ld. AO had acted mechanically on the basis of this entry in Form 26AS. Even though, the evidences were there on record, the ld. AO had not bothered to consider that; i. The title over the property did not vest with the firm. ii. The land was not part of the capital account of Smt. Shakuntla Devi. iii. The land was not a part of the fixed assets of the firm. Therefore, while the land may have been pledged against the loan taken by the firm, since the firm did not own the land, it could not be charged long term capital gains on any asset which did not belong to it. The ld. AR also drew reference to his cross objection pointing out that the ld. CIT(A) while allowing the appeal of the assessee should also have held the assessment to be bad in law as the case had been reopened on the basis of erroneous facts and the approval had been given mechanically without bothering to understand the correct facts of the case. Therefore, the assessment order was even otherwise liable to be quashed. 8. We have duly considered the facts and circumstances of the case. It does appear from the order or the ld. CIT(A), that before acting upon the additional evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered in the course of assessment depending upon the facts placed before the ld. AO. The fact that the ld. AO may later come to a conclusion that the grounds on which the proceeding was initiated, were not valid, would not vitiate the initiation of the proceeding because the initiation has to be viewed in the context of the material that was available at that time and whether the same could lead to a reasonable inference, that income had escaped assessment. In considering the material available before the ld. AO and subsequently before the Addl CIT, Range-1, Bareilly, and considering that at that point of time, the amendments to the act that provided for seeking the explanation of the assessee before issuance of notice under section 148, had not yet come into play, we see no infirmity in the initiation of the assessment proceedings or the approval given to the said assessment proceedings by the Addl CIT, Range-1, Bareilly. In the circumstances, in our view, it cannot be said that the assessment proceedings were void ab initio or that the approvals were given mechanically. We also observe that the assessee has appeared before the ld. AO in response to the notice issued by him. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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