TaxTMI 
TaxTMI 
TaxTMI 
2025 (8) TMI 952
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....framing the asst. u/s 144 without affording adequate and reasonable opportunity and even without complying with the mandatory statutory requirement of law. The impugned order having been framed in gross breach of natural justice, kindly be quashed. 3. The Id. CIT(A) erred in law as well as on the facts of the case in passing the impugned order in a haste without affording adequate and reasonable opportunity of being heard. The impugned order having been framed in gross breach of natural justice, hence the same kindly be quashed or alternatively be restored to the file of the Id. CIT(A). 4. Rs. 30,56,063/-: The Id. CIT(A) erred in law as well as on the facts of the case in confirming the addition made of Rs. 30,56,063/ on account of the LTCG. The addition so made being contrary to the provisions of law and facts of the case and contrary hence, the same kindly be deleted in full. 5. The Id. CIT(A) erred in law as well as on the facts of the case in charging interest u/s 234A, 234B, 234C & 234D of the Act. The appellant totally denies it liability of charging of any such interest. The interest, so charged, being contrary to the provisions of law and facts, kindly be deleted in f....
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....le property and Incidence of Capital Gains in such transfer. Hence, the appeal is partly allowed in terms of direction as stated herein above, accordingly. 4. In the result, the appeal is Partly Allowed for statistical purpose.'' 2.2 During the course of hearing, the ld. AR of the assessee has filed following detailed written submission with the prayer either to quash the orders of the lower authorities or restore the matter to the file of the ld.CIT(A) or AO for consideration and afresh decision: ''Submissions: GOA 1: No Reason to believe existed: 1.1 A bare perusal of reasons recorded appears more to be reasons to suspicion as against reason to believe but rather no reasons at all existed for the simple reason that in the entire reasons recorded and shown by the AO at pg. 1 pr. 2 of the impugned Assessment Order, the only allegation is that the Appellant did not disclose LTCG on the transfer of some immovable property which was sold for Rs. 5,00,000 though was valued at Rs. 30,56,063 for the purposes of the stamp duty collection resulting into the alleged escapement of income of Rs. 25,56,063 and based on that reason alone, the AO issued impugned notice dt. 30.03.2021 ....
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....was paid to the owners vide cheque no. 018474 dated 11/05/2010 drawn on Bank of Baroda, Jhalawar Road, Kota. But sale deed was executed on dated 30/03/2013." 1.6 There apart, he again referred to the contents of the POA at pg. 3 pr. 6 (ii) which is reproduced as under-: "ii. It is seen from copy of special power of attorney that the the assessee is empowered to vacate the tenants, do construction, obtain electricity & water connections, obtain 'No objection certificate from any department." 2.1 Further, at internal pg. 4 (PB 15) it is stated that the amount of sale consideration of Rs. 5 Lakhs was paid through cheque no. 91874 dt. 11.05.2010 Bank of Baroda, Kota which was earlier received from the buyers and possession of the property was handed over. The relevant portion is reproduced hereunder:- 2.2 Yet, another vital fact admitted by the AO at pg. 8 of the assessment order is in pr. 4 (iv) is that the sale consideration of Rs 5 lakhs has been paid to the sellers. Thereafter, he admitted that in the copy of the bank statement (PB 1-3) submitted by the appellant in support of the claim that no sale consideration was received by him, but such fact is nowhere denied what....
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....ves to be quashed. In the case of Satish Kumar Khandelwal Vs. ITO (2021) 213 TTJ 584 (Jp): 206 DTR 289(Jp) (DC 1-8), it was held that the reasons to believe recorded stated that the Appellant did not file Return of Income which, was found factually incorrect hence, the Hon'ble ITAT quashed the Notice u/s 148 in as much as the Reason to Believe were based on wrong factual premise, which is also the case here. 4.1.2 In the case of Ashok Commercial Enterprises Vs. Assistant Commissioner Of Income Tax, (2023) 7 NYPCTR 1265 (Bom),it was held that "para 4 of the impugned assessment order for asst. yr. 2017-18 clearly shows, respondent has erroneously proceeded on the basis that no return had been filed by assessee pursuant to the notice under s. 153C, since he records that no return is available on the ITBA portal. This factual basis is demonstrably erroneous. A return of income pursuant to notice issued under s. 153C(1) has been filed on 15th Aug., 2021 and an acknowledgment showing an e-filing acknowledgment number is on record. Non availability of return on the ITBA portal is the only basis on which respondent No. 1 seeks to exercise power under s. 144 relying upon the provisions of....
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...., there is no escape from the conclusion that no tangible material was available with the Assessing Authority so as to initiate the re-assessment proceedings against the petitioner by taking recourse to the provisions under section 148 and 143 (2) of the Income-tax Act." In view of these legal and factual submissions, the reassessment proceedings u/s 147 and the notice u/s 148 deserved to be quashed. 2. No adequate opportunity: The ld. CIT(A) erred in law as well as on the facts of the case in passing the impugned order in a haste on dated 26.08.2024 without affording adequate and reasonable opportunity of being heard. The impugned order having been framed in gross breach of natural justice, kindly be quashed or alternatively be restored to the file of the ld. CIT(A), as would appear from the following date chart: Chart Showing Different notices and compliances: S. No. Date of issuance of notice Due date of hearing Compliance by assessee Remark 1. 16.11.2022 Notice for enablement of Window 2. 17.05.2024 24.05.2024 No Compliance 3. 02.07.2024 09.07.2024 No Compliance 5. 16.08.2024 23.08.2024 No Compliance A bare per....
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....e appears that too in short span is highly improbable and disproportionate. GOA-4:On Merits- No addition justified: 4.1 It is submitted that the jurisdictional facts are in itself not denied or disputed but rather admitted to the fact that the appellant merely acted as a POA holder. The law is well settled that all the acts and deeds done by a POA holder shall be considered as having been done by the Principal( the person/s who gave the POA i.e Assessee here). It is so elementarily that is doesn't require any further elaboration. However, for better appreciation, reference maybe made to S.2 of the Power Of Attorney Act,1882, reproduced hereunder, Para 1.1"Execution under power-of-attorney.-The donee of a power-of attorney may, if he thinks fit, execute or do any 4*** instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every 4*** instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof. This section applies to powers-of-attorney created ....
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....Whether since sale consideration was reflected in books of account of partnership firms and assessee had not earned any income from said transactions, impugned reassessment proceedings initiated against him were unjustified - Held, yes [Para 18] [In favour of assessee 18. Having considered the submissions made by the petitioner on behalf of the petitioner as well as the observations made by the respondent-Assessing Officer in the impugned order passed under section 148A(d)wherein, it is not disputed that the petitioner is working as peon in M/s. S.K.Enterprise and M/s. Anushri Enterprise. However, the transactions reported on portal were pertaining to both the partnership firms and the sale deeds were signed by the petitioner in the capacity of the Power of Attorney Holder and therefore, there is no question of any income being earned by the petitioner through such transactions which were reflected in the books of accounts of the Partnership Firm" 4.2 In the case of CIT, Chennai VS C. Sugumaran [2015] 57 taxmann.com 20 (Madras)(DC 21-25), it was held that, "- Where owner of property executed power of attorney in favour of assessee without any consideration and thereafter prop....
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....e to Hon'ble Apex Court's decisions in the cases of CIT vs. Rai Bahadur Hardutroy Motilal Chamaria 66 ITR 443 (SC) and CIT vs. B.N. Bhattachargee 118 ITR 461 (SC) for the proposition that an assessee having once filed an appeal, cannot withdraw it and even if the assessee refuses to appear at the hearing, the first appellate authority can proceed with the enquiry and if he finds that there has been an underassessment, he can enhance the assessment. Just as, once the assessment proceedings are set in motion, it is not open to the Assessing Officer to not complete the Assessment Proceedings by allowing the Assessee to withdraw Return of Income; it is similarly, not open for Ld. CIT(A) to not pass order on merits by dismissing the appeal in limine, whether on account of non-prosecution of appeal by the Assessee or due to the Assessee seeking to withdraw the appeal or if the assessee does not press the appeal. When the Commissioner (Appeals) dismisses the appeal of assessee in limine for non-prosecution of appeal by the assessee; in effect, indirectly it leads to same results as withdrawal of appeal by assessee. When the assessee is not permitted to withdraw the appeal filed before....
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....d to consider and decide any issue arising in the proceedings before him in appeal filed for its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). Thus once an assessee files an appeal under Section 246A of the Act, it is not open to him as of right to withdraw or not press the appeal. In fact, the CIT(A) is obliged to dispose of the appeal on merits. In fact, with effect from 1st June, 2001 the power of the CIT(A) to set aside the order of the Assessing Officer and restore it to the Assessing Officer for passing a fresh order stands withdrawn. Therefore, it would be noticed that the powers of the CTT(A) is co-terminus with that of the Assessing Officer i.e. he can do all that Assessing Officer could do. Therefore, just as it is not open to the Assessing Officer to not complete the assessment by allowing the assessee to withdraw its return of income, it is not open to the assessee in appeal to withdraw and/or the CTT(A) to dismiss the appeal on account of non-prosecution of the appeal by the assessee. This is amply dear from the Section 251(1)(a) and (b) and Explanation to Section 251(2) of the Act which requires the CIT(A) to apply hi....
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....ge and repute in regard to the assessee's circumstances, and his own knowledge of previous returns by and assessments of the assessee and all other matters which he thinks will assist him in arriving at a fair and proper estimate; and though there must necessarily be guess-work in the matter, it must be honest guess-work [CIT Vs. Laxmi Narain Badridas, (1937) 5 ITR 170, 180 (PC), reversing (1934) 2 ITR 246 (Nag); CIT Vs. S. Sen, (1949) 17 ITR 355 (Orissa); Singh Engineering Works Vs. CIT, (1953) 24 ITR 93 (All); M.A. Rauf Vs. CIT, (1958) 33 ITR 843 (Pat); Mohanlal Mahribal Vs. CIT, (1982) 133 ITR 683 (MP) ; Ganga Prasad Sharma Vs. CIT, (1981) 132 ITR 87 (MP) & (1981) 127 ITR 27 (MO); Balchand Udairam Vs. State of Sikkim, (1989) 180 ITR 530, 553 (Sikkim); K.T. Thomas Vs. Ag ITO, (1990) 184 ITR 561, 565 (Ker.)]. In making a best judgment assessment the Assessing Officer does not possess absolutely arbitrary authority to assessee at any figure he likes and that although he is not bound by strict judicial principles he should be guided by rules of justice, equity and good conscience [Abdul Qayum & Co., Vs. CIT, (1933) 1 ITR 375, 378 (Oudh)]. A best judgment assessment is not by way p....
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....michand & Ashok Kumar vide POA/Muktyaarnama executed on 02.08.2010 c. The Assessee executed the sale deed of shop on dt 30.03.2013 only on behalf of original owners in favour of Chothmal Birla S/o Kesari Lal Birla for Rs. 5,00,000/- which was paid to the owners vide cheque no. 018474 dt. 11.05.2010. It is further noted that being not satisfied with the submissions of the assessee, the AO passed order dated 29.03.2022 by stating following reasons:- (i) It is seen from the sale deed that the assessee is shown as seller along with four other sellers which is contrary to his claim that he is not owner. Further, it was not mentioned in the sale deed that he executed the sale deed as the power of Attorney holder. It is also seen that the sale deed was signed only by the assessee and not the real owners as claimed by him. The signatures of other four sellers are not affixed on the sale deed implying that the assessee is the sole owner and other co-owners signed only as consenting parties. It is a common knowledge that ownership in a immovable property gets transferred to the buyer only on execution of registered sale deed by the owner. Therefore, the absence of signatures of aforemen....