TaxTMI 
TaxTMI 
TaxTMI 
2017 (10) TMI 683
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion 143(3) dated 30.03.2015 is barred by limitation as the same is not put into transmission for being served on the assessee before the time barring date i.e., or before 31.03.2015. 2. The order passed by the Ld, AO is ab initio void as the Ld. AO has not referred the valuation of property to the DVO as mandated under section 5OC(2). 3. The Ld. AO is not correct in adopting the SRO value as the full value of consideration by invoking the provisions of section 5OC and the Ld. CIT (Appeals) is not correct in confirming the same as the land is subject to unexpired period of lease of about 50 years as on the date of registration of the sale deed. 4. The Ld. AO who issued the notice under section 143(2) and the Ld. AO who passed the order under section 143(3) are different and hence the order passed under section 143(3) being without jurisdiction is null and void. 5. The Ld.AO is not correct in adopting the cost of acquisition at Rs. 1,80,000 and Rs. 9,03,360 and indexing the same. The assessee hereby pleads for adopting the fair market value of the asset as on 01.04.1981 in terms of section 55 by adopting the reverse indexation method. This is a plea being made for the fi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cer, the assessee went on appeal before the CIT (A) but none appeared. Ld.CIT(A) confirmed the order of the assessing officer after verification of material available on record as under : "I have considered the submissions and details filed. I have also perused the assessment record. I find that the assessee's contention in ground No.1 is that as there was no evidence of receipt of any extra consideration other than the documented consideration, the provisions of section 50C cannot be invoked. Such a plea is untenable as the legislative provision contained in section 50C requires the AO to assess the capital gains by adopting the SRO value as the deemed full value of consideration received. It is also noted that the assessee had not filed any information as to the encumbrance or litigation in the title to the property, and had also agreed to the addition before the AO. In the circumstances, the AO's action in assessing the capital gain by adopting SRO value as the full value of consideration invoking section 50C is justified. It was submitted that the assessee had paid taxes in lieu of the claim made u/S.54F. The AO is directed to verify and give credit for the taxes paid....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nam for rectification of the mistake stating that there was no surplus land in their hands in survey no.59/3 of Marripalem. In response to the representation of the assessee dated 28.09.2007 the special officer and competent authority of Urban Land Ceiling, Visakhapatnam has made the recommendation to Special Officer, ULC, Hyderabad for rectification of the mistake stating that the determination of 12,656 sq.metres under 'C' category in Urban category,' after providing protection u/s 4(11) of the Act is not available. Thus, there was no surplus land, under Urban Land Ceiling Act, accordingly, the special officer of Urban Land Ceiling, Visakhapatnam has requested the Spl.Officer, ULC, Hyderabad to pass appropriate orders rectifying the mistake. However, Ld.AR stated that till date, no rectification order was received by the assesee. The Ld.AR submitted that subsequently, the assessee filed writ petition against the order under 8(4) of Urban Ceiling Act in WPSR No.42152/2008 dated 15.04.2008 before the Hon'ble High Court and the case is pending as on date. While the things stand at this juncture, the assessee has sold the properties to the lessee and his nominees admeasuring 14,500 s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gains adopting the value as per 50C of I.T.Act. The AR submitted that at the time of assessment, the AO did not explain the consequences of 50C value and the resultant tax liability. The tax demanded by the department was more than sale consideration received by the assessee and it is beyond the financial capacity of the assessee. Therefore, Ld.AR argued that to the subject land, the provisions of Section 50C cannot be invoked. The Ld.AR further argued that while considering the market value all the above facts relating to the pending disputes required to be considered and adopting the value of 50C without considering all the facts is incorrect . Hence, Ld.AR requested to admit the additional evidence and set aside the order of the assessing officer to redo the assessment if necessary, after consulting the DVO. The ld A.R further submitted that if the additional evidence is not admitted it would cause gross injustice and financial injury to the assessee which is beyond the repair. 5. On the other hand, Ld.DR argued that the assessee did not bring the pending disputes before the assessing officer in spite of issue of show cause notice. Rather, the assessee as well as the assessee's....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ties have not yet passed the necessary orders and subsequently, the assessee had to go to Hon'ble High Court for justice. In this background, we are of the considered opinion that the additional evidence submitted by the assessee has direct impact on the valuation of the land for adoption of 50C for capital gain. Therefore, we admit the additional evidence submitted by the assessee. With regard to the admission of additional evidence by the tribunal Hon'ble 3rd member in the case of Abhay Kumar Shroff Vs. Income Tax Officer (1997) [63 ITD 0144] held as under : 6. "I have gone through these documents which are in the shape of additional evidence and I am of the opinion that they are required to be admitted by this Tribunal suo motu as they have a close relation and nexus with the races or the case and I think they are very vital and essential for the deciding the second appeal fairly and justly. Various Courts have opined that if additional evidence has nexus with the facts of the case and the appellate authority is of the opinion that the controversy cannot be decided without appreciating and evaluating the additional evidence then the same can be admitted in order to dispense su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t or even ignorance Or whatever one may term it cannot be said to produce any devastating effect of the magnitude where the powers vested by r. 29 referred to supra in the Tribunal could stand set at naught. The gravamen of the charge against the assessee as to the non-production or these vital documents either before the AC or before the learned CIT(A) would have a different effect in law to my mind, It is that the assessee as a matter of right cannot file or filing them before the Tribunal as a matter of course. If the assessee produces some documents at the appropriate time they have to be taken into consideration subject of course to all just exceptions, such as their relevance, etc. If not done at the assessment stage, the admission of documents has to be governed by r. 46A of the IT Rules, 1962 if produced for the first time before the first Appellate Authority. Having missed the bus and the matter travelled to the tribunal, the admission of documents is to be governed by r. 29 of the Tribunal Rules, 1963 discussed herein before briefly. What I want to emphasise is that, if the documents sought to be admitted even at the second appellate stage are of a nature and qualitativel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....anner. Such a case will be one for allowing additional' evidence for any other substantial cause under r. 27(1)(b) of the Code. Such requirement of the Court is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. It may well be that the defect may be pointed by a party, or that a party may move the Court to supply the defect, but the requirement of the Court upon its appreciation of the evidence as it stands. Held on facts that the High Court allowed additional to be admitted as It required such evidence either to enable it to pronounce judgment or for any other substantial cause within the meaning of R. 27(1)(b) of 0.41 of the Code.' 14. As is evident, the Summit Court has gone to the extent of laying down law as per which in a case even where strictly speaking a Court did not require additional evidence to unable it to pronounce judgment, if it considers that in the interest of justice something which remains obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner, it should be done as it would fall within the realm of allowing additional evidence for an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and to redo the assessment denovo. In this connection, the assessing officer may take the help of DVO and decide the issue afresh on merits. Accordingly the appeal is remitted back to the file of the AO to decide afresh on merits. The appeal of the assessee on this ground is allowed for statistical purpose. 7. In this case, the assessee has raised ground No.1 relating to the assessment barred by limitation which is not pressed by the Ld.AR. Therefore this ground is dismissed. 7.1. Ground No.4 is related to the jurisdiction of the assessing officer. This ground is not pressed by the Ld.AR, therefore, this ground is dismissed as not pressed. 7.2. Ground No. 6 is general in nature which does not require specific adjudication. 7.3. Ground nos. 2 and 3 are related to the adoption of the sale value under 50C of I.T.Act and reference to the DVO. Since we have remitted the entire assessment back to the file of the assessing officer, the assessing officer is directed to decide the issue on merits. In this case the appeal of the assessee is allowed for statistical purpose. ITA 26/VIZ/2017 - Pydi Venkata Ramana 8. Ground Nos. 2,3 and 5 are related to the appeal are identical to the app....