9911796707
TMI Blog2019 (5) TMI 1443X X X X Extracts X X X X X X X X Extracts X X X X ..... lief." 3. Brief facts of the case shows that assessee is an individual, not having any permanent account number, assessed u/s 144 read with section 147 of the income tax by the order dated 28/2/2014 wherein the total income of the assessee was assessed at INR 1 2614035/-. 4. The information was received in this case from the office of The Director Of Income Tax (Investigation), New Delhi on 22/10/2009 that assessee has sold one agricultural land admeasuring 7.6875 acres comprising various sellers at village Baprola Delhi to M/s Experience builder private limited for a consideration of INR 196,000,000/- and in the said land the share of the assessee is 10%, therefore, assessee has received a sum of INR 1 9603125/- during the financial year 2007 - 08. Therefore the learned assessing officer issued inquiry letter to the assessee but no reply was received, therefore, another letter dated 1/2/2012 was issued and same also remained uncomplied with. Therefore the learned assessing officer recorded the reasons for initiating proceedings for assessing income of the assessee under section 147 of the act, notice u/s 148 was issued on 29/8/2012. However in response to that notice no response ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and was inherited by his father, who in turn had inherited it from his father. Therefore the contention of the assessee was that since the land belonged to the HUF of the appellant, AO has wrongly issued notice u/s 148 to the assessee in individual capacity. The learned CIT - A rejected the above explanation stating that the enquiry report received from the assessing officer shows that the assessee has sold the property in his individual capacity and not in HUF capacity. Therefore he held that the property belongs to the assessee and in individual capacity and not in the hands of the Hindu undivided family. The 3rd objection raised by the appellant is the reason for reopening was not communicated to the assessee. The same argument was also rejected stating that notice u/s 148 of the act was issued along with the reasons recorded therein which was sent through speed post and the assessee did not comply with the notices and therefore the above objection does not survive. On the merits it was stated that AO has estimated the cost of acquisition without any material available but is on arbitrary valuation. The learned CIT - A held that the cost of the land for the purpose of computing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ress of the assessees 90, village Baprola, Najfgarh , New Delhi 43. He therefore submitted that the learned assessing officer never mentioned the permanent account number in the notice. He also noted the error in the writing of the name of the father of the assessee. Adverting to the 2nd ground of the appeal he stated that the passing of the assessment order u/s 144 of the income tax act in wrong hands of the appellant without a specific notice in that behalf in completing the assessment without providing the reasonable and adequate and proper opportunity of hearing is bad in law. It only contention in this regard is that the income is required to be assessed in the hands of the Hindu undivided family and not the assessee in the individual capacity. With respect to the 4th ground of appeal with respect to the chargeability of the capital gain he submitted that the learned AO has estimated the fair market value as on 1/4/1981 without any evidence. His main argument is that the learned assessing officer has gathered the market rate as on 01/04/1981 but has not shown the evidences for estimating the same. 7. The learned departmental representative vehemently a stated that that notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not respond to the communications. Therefore the learned assessing officer issued notices u/s 148 of the income tax act at the same address. The notices were admittedly sent by the speed post at the given addresses which were never returned as unserved. The learned CIT - A has noted that assessee has been served the notice through speed post bearing number ED613882447 IN and there is no evidence on record to suggest that this notice was returned back by postal authorities as unserved. He has followed the decision of the honourable Jharkhand High Court in 357 ITR 619. The assessee has stated that on inspection of the file it did not find any evidence of service of the notice. It is to be noted that he did not find any cover returned unserved. The notices were sent at the address which is mentioned in the sale deed. Assessee did not file any return of income nor mentioned the PAN in the sale deed. The return filed by the assessee are also for Ay 2011-12 and not Ay 2008-09. The ld AO did not have ny mechanism to find out who is the person who has sold the land. The only source of information is the copy of the sale deed and address mentioned there n , notices / communication were sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asset to the assessee or the fair market value of the asset as on 1/4/1981 at the option of the assessee. According to the provisions of section 2 (22B) of the income tax act, the fair market value in relation to a capital asset means the price that the capital asset would ordinarily fetch on sale in the open market on the relevant date i.e 01/04/1981. As the learned assessing officer has not given any evidence that how the fair market value has been determined by him, we reject the fair market value adopted by the learned assessing officer of INR 1,650,000 per acre as on 1/4/81. It is also true that assessee has also not produced before the lower authorities any evidence with respect to FMV of the land as on 1/4/1981. In view of this, we set aside this issue back to the file of the learned assessing officer to determine the fair market value of the impugned property as on 1/4/81 by giving an opportunity to the assessee to first show the cost of acquisition of the asset and fair market value of the asset. Then at the option of the assessee any one of them can be taken as cost of acquisition of the asset for indexation. If the learned assessing officer is not satisfied with the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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