TaxTMI 
TaxTMI 
2021 (7) TMI 1246
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....y the CIT(Appeal). 4. That the variation between circle rate and the actual sale consideration of the property was only Rs. 5,50,000/-, which is 9.09% of the circle rate, is required to be ignored for applicability of Section 50C of I. T. Act 1961. 5. That the CIT (Appeal) making an addition of Rs. 5,50,000/- u/s 50C of I. T. Act 1961without making reference to the Valuation Officer on the request of the appellant u/s 50C(2)(a) of I. T. Act 1961 is unjust, illegal, arbitrary and against the facts and circumstances of the case. 6. That the Action of the CIT (Appeal) in making an addition of Rs. 5,50,000/- u/s 50C of I. T. Act 1961 is unjust, illegal, arbitrary and against the facts and circumstances of the case. 7. That objection for reopening the assessment raised were not disposed off by the A. O. before making the assessment, makes assessment Null and Void." 2. Facts giving rise to the present appeal are that as per AIR information, it was noticed by the Assessing Officer that the assessee had sold immovable property for Rs. 55,00,000/- during the year under consideration. Therefore, the case of the assessee was re-opened for assessment. A n....
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....iance. Evidently, the conduct of the assessee shows that the assessee has nothing to submit in this regard. The assessee is required to just furnish evidence in support of the deduction claimed u/s 54 of the Act, which is to be available with the assessee as the return of income is filed on the basis of claiming deduction through the same. However, the assessee has not filed the same, it clearly shows that the assessee has nothing to submit in this regard and deduction claimed u/s 54 of the Act is nothing but afterthought of the assessee made after reopening of the case. In view of the discussion made in the foregoing paragraph, the deduction of Rs. 36,72,039/- claimed u/s 54 of the Act of the disallowed and added to the income of the assessee under the head of capital gain. Since, the assessee has furnished inaccurate particulars of income, penalty proceedings u/s 271(1)(c) are being initiated separately." Hence, the Assessing Officer made addition of Rs. 36,72,039/- and assessed income of Rs. 43,30,829/- against the total income of Rs. 6,58,790/-. 3. Aggrieved against this, the assessee preferred appeal before Ld.CIT(A) who after considering the submissions, allowe....
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....ons against the reasons supplied by the Assessing Officer at Delhi were disposed off. The assessee participated in the re-assessment proceedings, moreover, the assessment was re-opened on the basis of tenable reasons. 7. I have heard the rival contentions and perused the material available on record. I find that the assessee had taken a specific ground regarding legality of the notice issued u/s 148 of the Act. Before Ld.CIT(A), the assessee has contended as under:- "No service of notice u/s 148 of I. T. Act 1961 within the period of limitation It submitted that no notice within the period of limitation as required under Section 149(1)(b) of the IT Act, within a period of six years from 31-3-2011 was issued for reopening the assessment, as the notice u/s 148 dated 28.03.2018, issued by the Income Tax Officer, Ward 2(4), A- 2D, Aayakar Bhawan, Sector - 24, Noida, Uttar Pradesh was never received/served on the assessee. The notice was issued at wrong address at A-I0l, D-I0, Sector - 44, Noida, Gautam Budh Nagar, U.P., which was never the address of the appellant. The A.O. in his letter/order dated 01.11.2018 has clearly admitted that the notice u/s 148 of I. T. A....
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....esent case, the Court finds that the ITAT was right in its conclusion that since no proper service of notice had been effected under Section 148 (l) of the Act on the Assessee, the reassessment proceedings were liable to be quashed. Consequently, the question framed is answered in the affirmative, i.e., in favour of the Assessee and against the Revenue." Further reference may be made to the decision of Allahbad High Court in the case of Suresh Kumar Sheetlani Vs ITO-1(3) I.T.A. No. 413 of 2011 dated 14/08/2018 wherein it was held that presumption of Service of Notice not applies if Dept had correct address. The court has held as under: - "20. Considering the aforesaid aspect of the matter, when the Department had correct address of the assessee, sending notice at incorrect address and then presumption drawn of service of notice is wholly erroneous. We find that the presumption drawn by the Tribunal on the ground that since notice was not received back unserved, it would be deemed to be service of notice, cannot be sustained." Jurisdiction by the A.O., Noida In this case the A. O. Ward 2(4), Noida, U. P. issued notice u/s 148 at wrong address at A....
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....ent database has already been placed on record according to which you do not hold any jurisdiction. It is not understood as to how you can continue to exercise jurisdiction in this case. If any order u/s 127 of the I. T. Act 1961 has been issued by the appropriate authority, transferring jurisdiction over this case to you may be given so that the assessee could submit to your jurisdiction. It is submitted that in the absence of any order u/s 127 transferring the case to you, re-assessment notice issued by you and subsequently proceedings based on said notice are without jurisdiction. If any reference is needed this could be had from the following judgments: - i. Smiriti Kedia vs. UOI (2012) 71 DTR 245, 250 CTR 221 (Cal), copy of the judgement is enclosed. ii. ITO vs. Rajinder Prasad Gupta (2010) 48 DTR-48a J.D. ITAT Illegal assumption of jurisdiction may not be further continued, proceedings may be filed so as to avoid unnecessary botheration/ harassment to assessee in the matter. Further notice u/ s 148 of I. T. Act 1961 was not issued within the time limit. In the notice dated 29.05.2018, you have further mentioned that the notice has been sent....
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....the reply as per letter dated 21.12.2018 and asked for some time for filing copy of purchase deed for the property for claiming exemption u/s 54 of I. T. Act 1961 and in the last para of the letter made the following submissions: - "As submitted earlier the assessee has misplaced the copy of deed for purchase of the property in March' 2011 for showing investment in the property for availing benefit u/ s 54 of I T. Act 1961. The assessee is applying for obtaining certified copy and the same shall be filed. Few days time may be given as due to holidays for Saturday, Sunday and Tuesday is Christmas, the government offices would remain close. The case may be adjourned as for the notice u/ s 143(2) fixing the case on Saturday being holiday and giving no time for compliance". No further time was allowed by the A. O. and the assessment order was passed on 24.12.2018 after disallowing the exemption claimed u/s 54 of the I. T. Act 1961 at Rs. 36,72,039/-. On 26.12.2018 the assessee filed the copy of deed for purchase of property for Rs. 37,44,000/- for exemption u/s 54 of I. T. Act 1961. As this deed which is important for deciding the appeal may be admitted for hearin....