TaxTMI 
TaxTMI 
2025 (8) TMI 952
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.... The Id. AO erred in law as well as on the facts of the case in 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, ....
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....sed in his Retum of Income for the year, about the transaction related to transfer of immoveable 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 i....
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....of sale of immovable property situated at 11D, Gumanpura, Kota in favour of Chothmal Birla S/o Kesari Lal Birla Resident of House No C-349, Talwandi, Kota for Rs. 5,00,000/- which 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.....
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....g factual premise which has vitiated the entire proceeding u/s 147. 4 Supporting case laws: 4.1.1 Since, the very Reason to Believe are based on wrong factual premise, such reasons to believe are no reasons at all which deserves 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 1....
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....roperty at Pali may be read in place of Delhi, then also, the said transaction is duly mentioned in the return filed by the petitioner for the relevant financial year and is supported by the audited balance-sheet, which was accepted by the Assessing Officer. Hence, 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 n....
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....tanding of the intricate provisions of tax laws. Given his background and lack of exposure to such legal complexities, expecting him to independently provide a detailed submission without access to critical information and in absence of regular legal counsel is both unreasonable and unrealistic. In such circumstances, the expectation of compliance without appropriate guidance 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 thin....
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....her firm entered into an agreement to do a Joint Venture Project for sale of immovable properties and Special Power of Attorney (POA) was executed in favour of assessee to do only paper work and execution work including execution of sale deed on behalf of partnership firm - Assessee executed sale deeds as Power of Attorney holder for two partnership firms - Assessee received a notice under section 148A to provide information about said transaction - 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 i....
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....powers of Ld. CIT(A) are coterminus with powers of the Assessing Officer. Useful reference may be made to order of Apex Court decision in CIT vs. Kanpur Coal Syndicate 53 ITR 225 (SC) in which it was held that the first appellate authority, the Ld. CIT(A) in the case before us, has plenary powers in disposing off an appeal; that the scope of her power is co-terminus with that of the ITO, that she can do what the ITO can do and also direct him to do what he failed to do. In this context, useful reference may also be made 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 ....
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....ection 250(6) of the Act obliges the CIT(A) to dispose of an appeal in writing after stating the points for determination and then render a decision on each of the points which arise for consideration with reasons in support. Section 251(1)(a) and (b) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides Explanation to sub-section (2) of Section 251 of the Act also makes it dear that while considering the appeal, the CTT(A) would be entitled 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 C....
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....deline: For a better appreciation, a reference may kindly be made to the commentary by the ld. Authors Chaturvedi Pethisaria Vol. 3 Edition V at page 4932, reproduced hereunder verbatim:- "Best Judgment assessment - how to be made? - In making a best judgment assessment the Assessing Officer must not act dishonestly or vindictively or capriciously because he must exercise judgment in the matter. He must make what he honestly believes to be a fair estimate of the proper figure of assessment, and for this purpose he must be able to take into consideration local knowledge 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) ; Gan....
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.... that the value of property as per S. 50C of the Act is Rs. 30,56,063/- being the value shown for calculation of stamp duty. During the proceedings, the AO issued various notices to the assessee requiring assessee to furnish details as no income has escaped assessment. In compliance to the notice u/s 142(1) dated 06.01.2022, the assessee replied with a letter dated 03.03.2022 wherein the assessee contended that: a. No immovable property was sold by him. b. Since assessee was a 'Special Power of Attorney Holder' for the said property on behalf of the real owner of property, namely 'Surajmal', Amarlal, Nemichand & 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 seller....
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....uments/ evidence during this appellate proceeding. From the above conduct of the assessee, it is clear that the assessee is not interested in prosecuting its appeal. However, in the interest of natural justice the AO is directed to verify whether, the amount paid, of Rs. 5,00.000/- by cheque in May 2010,was actually paid to the original owners of the property or not. If it is found that this amount was paid to the original owners as a consideration in connection with the transfer of the property, in that case I am of the opinion that it would be fair & proper to allow deduction in accordance with the provision of section 48 of the I.T.Act, in respect of this sum of Rs. 5,00,000/- from the deemed value of sale consideration Rs. 30,56,063/-, in determining income chargeable to tax under the head Capital Gains. Further, the action of the AO in initiating reassessment proceeding by issuing notice u/s 148, is confirmed as it is apparent that the appellant has not disclosed in his Return of Income for the year, about the transaction related to transfer of immoveable property and Incidence of Capital Gains in such transfer. Hence, the appeal is partly allowed in terms of direction as stat....
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....¥à¤¡à¤¼à¥€ कोटा मà¥à¤–à¥à¤¤à¤¾à¤° आम शà¥à¤°à¥€ सूरज मल व शà¥à¤°à¥€ अमर लाल व शà¥à¤°à¥€ नेमी चनà¥à¤¦à¥à¤° व अशोक कà¥à¤®à¤¾à¤° पिसरान सà¥à¤µà¤°à¥à¤—ीय शà¥à¤°à¥€ माधो लाल व शà¥à¤°à¥€ निरंजन कà¥à¤®à¤¾à¤° पà¥à¤¤à¥à¤° शà¥à¤°à¥€ अगर लाल जाति मेहर निवासीयान मकान नमà¥à¤¬à¤° 11-ड़ी-नà¥à¤¯à¥‚ कालोनी गà¥à¤®à¤¾à¤¨à¤ªà¥à¤°à¤¾ कोटा (राजसà¥à¤¥à¤¾à¤¨) का हूà¤à¥¤ ....
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....¿à¤°à¤¾ मà¥à¤¬à¥ˆà¤¯à¤¾ खरीदार के कबà¥à¤œà¥‡ से निकल जावेगा, तो जरे बदल ओफिस के देनà¥à¤¦à¤¾à¤° मय हरà¥à¤œà¥‡ व खरà¥à¤šà¥‡ के विकà¥à¤°à¥‡à¤¤à¤¾à¤—ण होगे, जरे बय की कà¥à¤² चूकती रकम 5,00,000 /-रूपया अकà¥à¤·à¤°à¥‡ पाच लाख रà¥à¤ªà¤¯à¤¾ जरà¥à¤¯à¥‡ चेक नमà¥à¤¬à¤° 018474 दिनांक 11-05-2010 बैंक ऑफ बड़ौदा शाखा à¤à¤¾à¤²à¤¾à¤µà¤¾à¤¡à¤¼ रोड कोटा पूरà¥à¤µ....