2017 (9) TMI 100

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....order passed under section 144/147 of the Income- tax Act framed by the Income-tax Officer, Ward-1(3), both dated March 3, 2015. 2. As the issues raised in both the appeals are common therefore, they are being heard together and are disposed of by this common order for the sake of convenience and brevity. 3. For the purpose of adjudication, we will take the facts of I. T. A. No. 777/Lkw/2016. In this appeal the assessee has raised the following grounds : "1. Because the reassessment framed under section144/147 of the Act 1961, is without jurisdiction, bad in law and be quashed. 2. Because no notice under section 148 having being issued or served on the assessee, the reassessment framed is void ab initio and be quashe....

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....missioner of Income-tax (Appeals) has failed to appreciate the facts and circumstances of the case as well as the written submissions filed and has arbitrary proceeded to dismiss the appeal, holding that there was a liability to pay capital gains tax, which dismissal of appeal is totally unwarranted, unjustified, the order of the Commissioner of Income- tax (Appeals) be quashed." 4. Briefly stated, the facts as culled out from the record are that the assessee is a non-resident Indian, living in U. S. A. During the financial year 2006-07 he sold his immovable property situated at 62A, Civil Lines, Bareilly at Rs. 33,26,000. As per the information received by the Income-tax Department from Sub-Registrar-I, Bareilly, this property was sold ....

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....by violating the provisions of section 163(2) of the Act. It was further contended that the Assessing Officer has made the protective addition being 50 per cent. of the value shown in the registered sale deed without assessing the fair market value of the property under section 50C by referring it to a valuation officer for the very reason that the property was having many tenants and was very old building in dilapidated condition and covered under the Rent Control Act. Further no deduction was provided for cost of acquisition. 6. On the other hand the learned Departmental representative vehemently argued supporting the orders of the lower authorities and added that in case the assessee has not filed the return of income then the Assessi....

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....7.1 We observe that the Assessing Officer has mentioned two sections framing the assessment i.e., 144/147. For proceeding ahead to frame an assessment under section 147, the Assessing Officer is bound to issue notice under section 148 of the Act. As per the available record, no such notice was issued and this fact is accepted by the Revenue also. We further observe that as per the provisions of section 163(2) of the Act, which deals with the procedure to examine as to who may be regarded as an agent in relation to a non-resident and the provision specifically mentions that "no person shall be treated as the agent of a non-resident unless he has had an opportunity of being heard by the Assessing Officer as to his liability to be treated as s....