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09-01-2019, Roopa, Section 250, 254, 147, 2[47][vj, Tribunal Bangalore

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5 days 23 hours ago #8317 by amit
Section - 250, 254, 147, 2[47][vj, 54, 54F
Order Date - 09-01-2019
Favouring - Partly
Court - Tribunal Bangalore
Appellant - Roopa
Respondent - ITO
Justice - JASON P BOAZ AM
Citation - 119Taxpundit113
Appeal No. - ITA No.3046/Bang/2018
Asstt. Year - 2008-09

Order

PER : Jason P Boaz, A.M.

This appeal by the assessee is directed against the order of the CIT(A)-4, Bangalore, dated 31.10.2018 for Assessment Year 2009-09.

2. Briefly stated, the facts relevant for disposal of this appeal are as under:

2.1 The assessee had not filed the return of income for Assessment Year 2008-09. Proceedings u/s 147 of the Income Tax Act, 1961 (in short ‘the Act’) were initiated by the Assessing Officer (AO) as he had reason to believe that income of the assessee arising on account of Long Term Capital Gain (LTCG) exigible to tax, consequent to Joint Development Agreement (JDA) entered into by the assessee, her siblings and mother with M/s. Sai Deep Estates on 03.12.2007 for development of property at No.18, 1st A Main Road, New Thippasandra, Bangalore; had escaped assessment. Consequent thereto, notice u/s 148 of the Act was issued to the assessee on 20.01.2012. The assessee then filed her return of income for Assessment Year 2008- 09 on 24.12.2012 declaring NIL income. The assessment was concluded u/s 143(3) of the Act vide order dated 25.03.2013 wherein the assessee’s income was determined at Rs.47,14,769/- in view of the assessee’s 40.07% share in the LTCG arising on account of JDA in respect of the aforesaid New Thippasandra property. On appeal, the CIT(A) dismissed the assessee’s appeal vide order dated 19 09.2016.

2.2.1 On further appeal by the assessee, a co-ordinate bench of this Tribunal, in its order in ITA No.75/Bang/2017 dated 6.10.2017, remanded the matter to the file of the AO for consideration and adjudication on the issue of validity of re-opening of assessment as well as other grounds, modified/additional grounds of appeal raised on merits, holding as under at para 4 4 1 thereof:

“4.4.1 We have heard the rival contentions and perused and carefully considered the material on record. In support of her contention that the AO has not supplied her with the reasons recorded for re-opening the assessment despite the assessee's specific request vide letter dated 22/2/2012, the assessee has filed an Affidavit dated 23/9/2017 wherein she has stated that she had requested the AO for being supplied with reasons recorded vide letter dated 22/2/2012. We find that the orders of both the AO as well as the impugned order of the ld CIT(A) are silent on this issue and therefore it is not possible to render a conclusive finding without referring to the records of assessment on this issue. It is well settled proposition of law that in case the assessee requests for being supplied with the reasons recorded for re-opening the assessment, the AO is duty bound to supply the reasons and thereafter to decide upon the objections, if any, raised by the assessee against the notice issued u/s 148 of the Act, prior to the framing of the order of assessment. In the facts and circumstances of the case on hand, as discussed above, it is clear that when this issue raised by the assessee has not been considered by the authorities below, it is only in the fitness of things that we remit this issue to the file of the ld AO for consideration. In respect of the additional ground No.2(i) to (iii) raised (Supra), on the issue of non granting of correct cost of acquisition of land while computing the LTCG, we are of the view that since the examination of this claim of the assessee, while computing the LTCG of transfer of said land, would not require the examination of any new facts other than those already on the records of the Department, the same is admitted for consideration and adjudication. The same is also remitted to the file of the AO for consideration and adjudication in accordance with law. Since the issue of validity of the reopening has been remitted to the file of the AO, therefore the other grounds modified/additional grounds of appeal raised on merits are also remitted to the file of the AO for consideration and adjudication thereon after affording the assessee adequate opportunity of being heard in the matter. We hold and direct accordingly. Similar view has been taken by the co-ordinate bench of this Tribunal in the case of the co-owners of said land i.e Damodar Reddy in ITA No.167/Bang/2017 dated 5/5/2017, also for asst. Year 2008-09.”

2.2.2 In respect of the Co-ordinate Bench’s order in the case on hand i.e., ITA No.75/Bang/2017 dated 06.10.2017, the assessee filed an Miscellaneous Petition (MP) in M.P. No.42/Bang/2018 which was allowed vide order dated 10.04.2018 whereby the order in ITA No.75/Bang/2017 was amended as under:

“3. We have heard both par4:ies h the matter and perusal and carefully considered the material on record. On a perusal of the submissions put forth by the petitioner in the MP., the impugned Tribunal's order dt.6.10.2017 in the case on hand and the order of the co-ordinate bench in the case of Sri Damodar Reddy LTA No.167/Bang/2017 dt.5.5.2017 which was referred to and followed by us, we find that an inadvertent mistake has crept into our order dt.6.10.2017 in the case on hand, whereby at para 4.4.1 of the order, we have wrongly mentioned that the matter is remitted to the file of the Assessing Officer for consideration and adjudication of the issue of validity of reopening of assessment as well as other grounds, modified / additional grounds of appeal raised on merits. We ought to

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