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TMI Blog2016 (5) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. AO in relation to determination of capital gain and/ or imposition of tax and interest with reference thereto, the quantification of taxable income, the tax liability, including interest and penalty proceedings, under normal provisions of the Act is void-ab-initio, erroneous, unjustified, wholly arbitrary and bad in law, on the following grounds: (each grounds/facts is prejudice to each other):- 1.1 That the notice issued u/ s 148 of the Act was not served to the assessee. 1.2 That while supplying the reasons to believe to the counsel of the assessee, no time limit or due date was prescribed for filing return of income or for appearing before Ld. AO. 1.3. That Ld. AO has erred in ignoring the procedure of assessment by not taking the matter u/ s 143, instead of 147. 2.0. That on the facts and in the circumstances of the case and without prejudice to the above grounds, the Ld. CIT (A) was not justified in disallowing the appeal of the appellant that the order passed u/s 147/144 dated 18.12.2009 is not a speaking order and the Ld. AO has grossly erred in not considering the merits of the case. 3(a) That on the facts and in the circumstances of the case and wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces of the case, the Ld. CIT(A) has erred on facts and in law in allowing the deduction of Rs. 4,47,994/- for indexed cost of acquisition while computing the LTCG even when no claim was made by the assessee though more than sufficient opportunity was given and there is no provision in the Income Tax Act as to allow the deduction/exemption which was not claimed in the return of income as held by the Hon'ble Apex Court in the case of Goetze India Ltd vs CIT (284 ITR 323) (SC). Secondly, the land for which benefit of indexed cost -of acquisition has been claimed is not the same which has been sold as the murabba, khatoni and khewat nos are distinct." 2. "On the facts and in the circumstances of the ease, the Ld. CIT(A) has erred on facts and in law in allowing the deduction of Rs. 48,78,450/- u/s 54B even when no claim was made by the assessee though more than sufficient opportunity was given and there is no provision in the Income Tax Act as to allow the deduction/ exemption which was not claimed in the return of income as held by the Hon'ble Apex Court in the case of Goetze India Ltd vs CIT (284 ITR 323) (SC)." 3. "That Ld. CIT(A) has allowed deduction of Rs. 48,78,450 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) has estimated the investment in construction is from a private architect and not from an approved architect. Further, the architect has certified that the constructed building is a farm house and not a residential house .. The intent of the legislature behind exemption u/s 54F is only to satisfy the housing needs of the general public and not for the farm houses for leisure of the assessee." 9. "That Ld. CIT(A) has allowed deduction u/s 54F of the Act even when there is no evidence as to verify whether it is only one house and not the second or third house of the assessee to verify the claim of the assessee as per provisions of section 54F of the Act." 10. "That the appellant craves for the permission to add, delete or amend the grounds of appeal before or at the time of hearing of appeal." 3. Briefly stated the facts of this case are : on the basis of information supplied by Director of Income-tax (Inv.), it is noticed that farmers of Faridabad has not paid capital gain tax on account of transfer of land to BPTP Limited and its group concern and as per Registration Certificate No.28/R.C. dated 13.02.1990 issued by Registrar, Ballabhgarh, assessee has received sale c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant on 08.01.2009 which is a mandatory requirement in the law.' This return of income had been relied upon by the Hon'ble Commissioner of Income Tax (Appeals) in deciding the appeal of the appellant for the year under appeal. Thus order passed by the Hon'ble Commissioner of Income Tax (Appeals) based on this return in the absence of issuance and service of notice u/sec. 143(2) of the Act is non-est in law. 2) That the notice alleged to have been issued sec. 143(2) of the Act dated 14.12.2009 fixing the date of hearing for 18.12.2009 is not valid in law since:- i) At the time of issuance of said notice, he had no return of income was available in the assessment record of the appellant. ii) If the said notice is issued on the basis of return of income filed by the appellant on 08.01.2009, then as per the proviso to section 143(2) is barred by limitation. 8. In the face of the admitted fact that assessment order dated 18.12.2008 was passed in this case u/s 147/144 of the Act, no notice u/s 143(2) of the Act was required to be issued by the AO. So, in view of the matter, application seeking incorporation of the additional ground as to non-issuance/i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has proceeded on the premise that no return of income was filed by the assessee and proceeded to reopen the assessment u/s 148 of the Act. So, the impugned order passed by the CIT(A) by treating the income-tax return filed by the assessee, though with ITO having no jurisdiction as non est and invalid is not sustainable in the eyes of law because CIT (A) being a quasi-judicial authority has the power to transfer the return of income wrongly filed due to jurisdictional error to the competent revenue authority having jurisdiction over the assessee to examine the same. So, in view of the matter, the impugned order is not sustainable in the eyes of law. 12. So far as, contention raised by the ld. AR for the assessee that no notice has been issued to the assessee by the AO u/s 143(1)/143(2) is concerned, the same is not sustainable because in case the assessment is completed u/s 144 of the Act, as in the instant case no notice is required to be issued u/ss 143(1)/ 143(2). 13. The next contention raised by the ld. AR for the assessee that during the assessment proceedings, the assessee sought one month time to file the requisite documents but the AO without providing opportunity of bei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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