TMI Blog2018 (3) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... diction, barred by limitation and various other reasons and hence the same may kindly be quashed. 1.2 The action taken u/s 147 is bad in law and on facts of the case for want of jurisdiction and various other reasons and hence the same may kindly be quashed. 2. The AO has grossly erred in law as well as on the facts of the case in passing the ex-partie assessment order without providing the adequate and reasonable opportunity of being heard in gross breach of law. Hence, the order so passed may kindly be quashed and the additions so may kindly be deleted in full. 3.1 ₹ 35,06,490/-: The CIT has grossly erred in law as well as on the facts of thecae in sustaining the addition of ₹ 34,06,490/- on account of Long Term Capital Gain on sale of agriculture land and the AO and ld. CIT(A) both also erred in taking the higher value adopted by the Stamp Authority in place of actual sale consideration mentioned in sale deed and received by the assessee while determining the LTCG. Hence, the addition so made by the and confirmed by the ld. CIT(A) is being totally contrary to the provisions of law and facts on the record and hence the addition may kindly be deleted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on the experience of substantial relief. Thus due to the above reason, the appeal could not be filed within time which was not intentional and was beyond the control of the assessee. In support of the same, the assessee filed her affidavit narrating the reasons for not filing the appeal in time. 3. The ld.AR of the assessee relied on various case laws including the decision of Hon'ble Apex Court in the case of Collector, Land Acquisition vs Mst. Katiji Others (1987) 167 ITR 471 (SC) 2.2 The Bench has heard the rival contentions and perused the materials available on record. Taking into consideration the facts and circumstances of the case narrated by the assessee, it is observed that there is sufficient cause in preventing the assessee to file the appeal in time. Hence, the delay in filing the appeal by the assessee is condoned. 3.1 Apropos Ground No. 1.1, 1.2 and 2 of the assessee, the facts as emerges from the order of the ld. CIT(A) are as under:- 5.32.The assessee challenged reopening of the assessment u/s 148 on the ground that no notice was served on the assessee and that notices were not issued on correct address of the assessee. It was also pleaded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clines to interfere with the order of the ld. CIT(A) on the issues raised as Ground No. 1.1, 1.2 and 2 above by the ld.AR of the assessee which are dismissed. 4.1 Apropos Ground No. 3.1 3.2 of the assessee, the facts as emerges from the order of the ld. CIT(A) are as under:- The assessee claimed that he has invested the sale proceeds in the property and therefore, exemption u/s 54B should be allowed. It was seen that the assessee has purchased the property in the name of her sons, Shri Jitendra Kumar Kushwah and Shri Hanuman Prasad Kushwah. The assessee placed its reliance on various judgements, however, the facts of the cases were different, in the case (327 ITR 278), land was purchased in joint name whereas in the case of assessee, the land was purchased solely in the name of assessee's sons. The other cases were not related to section 54B. Therefore, I am of the opinion that the assessee can claim relief u/s 54B only when the land was purchased in his/ her name, therefore, the assessee was not entitled for benefit u/s 54B. This ground of appeal is therefore, dismissed. 4.2 During the course of hearing the ld.AR of the assessee prayed for deleti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the name of her sons. The assessee being a very old illiterate widow lady of 70 years was not aware about the complexity of Income tax laws that is why she had purchased the new agriculture land in the name of her sons. During the course of hearing, the ld.AR of the assessee has drawn the attention of the Bench to the recent decision of the Honble Raj. High Court in the case of of Sh. Mahadev Balai V/s ITO Ward 7(2), Jaipur in DBIT A No. 136/2017 dt. 07.11.2017 where it has been held as under:- 7.2 On the ground of investment made by the assessee in the name of his wife, in view of the decision of Delhi High Court in Sunbeam Auto Ltd. and other judgments of different High Courts, the word used is assessee has to invest it is not specified that it is to be in the name of assessee. 7.3 It is true that the contentions which have been raised by the department is that the investment is made by the assessee in his own name but the legislature while using language has not used specific language with precision and the second reason is that view has also been taken by the Delhi High Court that it can be in the name of wife. In that view of the matter, the contention raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record before the assessing authority to assume sale of plots at ₹ 40 per sq. ft.. In the absence of any evidence on record, it cannot be presumed hat land has been sold by the assessee at a higher price than the consideration shown in the registered sale deeds- Rates of property fixed by the Stamp valuation Authority for registration purpose cannot be applied to arrive at the price for which the property might have been sold . The ld.AR of the assessee also relied on the following decisions. Recently followed by this Honble Bench in the case of Manoj Dubey in ITA No. 294/JP/2016 dt. 09.06.2017. Also followed by the Honble ITAT in the case of Sh. Jagdish Chandra Boriwal in ITA No. 216/JD/2017 dt. 01.08.2017. Smt. Surendra kaur v/s AO in ITA No.547/Jp/2017 and Smt. Kaushalya Devi Khandelwal in ITA No. 184/Jp/2016 dt.06.10.2017. In view of the above deliberations, case laws (supra), it is noted from the assessment order that the AO has not brought any other material that the assessee has in fact or actually has received the more or excess sale consideration than sale price mentioned in the sale deed. He has only relied upon the value of Stamp authority which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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