TMI Blog2022 (7) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... report dated 26.10.2021. In view of this fact being on record the subsequent levy of penalty of non-compliance on that notice has not valid force so as to levy penalty u/s. 271(b). In terms of this observation the appeal of the assessee is allowed on technical ground. Since, we have allowed the appeal of the assessee on technical ground - ITA Nos. 1372 And 1373/JP/2019 - - - Dated:- 29-6-2022 - Shri Sandeep Gosain, JM And Shri Rathod Kamlesh Jayantbhai, AM For the Assessee : Sh. Vishal Gupta (CA) For the Revenue : Smt. Runi Pal (Addl.CIT) ORDER PER RATHOD KAMLESH JAYANTBHAI, AM: These are the two appeal filed by the assessee aggrieved from the order of the Commissioner of Income Tax (Appeal)- III, Jaipur [ here in after referred as Ld. CIT(A) ] both for the assessment year 2009-10. The relevant details of the same is extracted herein below: ITA NO. Date of order of Ld. CIT(A) which is disputed before the bench Reference to the order of AO Date of order passed by the AO 1372/JPR/2019 21-03-2016 Order passed u/s. 147/144 by the ITO, 7(4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing. 4. As the decision of appeal in ITA No. 1372/JP/2019 has bearing on the appeal in ITA No. 1373/JP/2019 therefore, we take the appeal in ITA No. 1372/JP/2019 for disposal first. 5. The fact as culled out from the records is that the assessment in the case of the assessee for the year under consideration was completed u/s. 144 by the AO and addition was made under the long term capital gain at Rs. 92,70,000/- for the sale of land. During the course of appellant proceeding before CIT(A) the assessee filed additional evidence along with written submissions. As the evidences are new and filed for the first time, the same was forwarded to the AO on 23-11-2015 for his comments. In compliance, AO submitted his report through Joint Commissioner of Income Tax, Range-7, Jaipur. In the report AO stated that the on the basis of information received from the higher authorities, it is gathered that the assessee had sold a land bearing Khasara No.326 327 situated at Village Sumel, Agra Road, Jaipur on 08-05-2008 for a consideration of Rs.8640000/- the value of which has been taken by the Collector (Stamps), Jaipur at Rs.9840000/- for stamp purposes. The land was situated within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital Gain Tax after allowing exemption of Rs.570000/-. Accordingly, assessment order in his case was passed U/s 147/144 of the I.T.Act,1961 on 03-03-2015 determining total income of Rs.9270000/-. 6. The learned assessing officer has filed reply based on each ground submission filed by the assessee and his comments on the contentions taken by the ld. AO which is not reproduced as the same is part of the record. 7. The appellant on 06.06.2022 has filed an application for additional ground of appeal. The application is extracted here in below for the sake of brevity of the facts. Respected Sir(s), Sub : Application for admission of additional ground of appeal We hereby submit as follows: As per Rule 11 of the Income Tax (Appellate Tribunal) Rules, 1963 11. The appellant shall not, except by leave of the Tribunal, urge or be heard in support of any ground not set forth in the memorandum of appeal, but the Tribunal, in deciding the appeal, shall not be confined to the grounds set forth in the memorandum of appeal or taken by leave of the Tribunal under this rule : Provided that the Tribunal shall not rest its decision on any other ground unless the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the tribunal. Similarly, in Indo Java Co. vs IAC (1989) 30 ITS 161 (Delhi) (SB), the Special Bench has held that point which can be agitated in appeal before Tribunal by an appellant may also include points impinge on computation of income as shown by the assessee himself by mistake or otherwise and even not agitated before ITO or ACC. We also rely on the decision in Nath Developers v ACIT (2013) 157 TTJ 224 (Pune) (Trib.) where it was held that the assessee is entitled to raise fresh ground of reassessment in appeal at the tribunal stage as the relevant facts were already on records. 8. Attached to that application the additional ground raised is also extracted here in below: Ground No. 1 On the facts and circumstances of the case, the Ld. A.O grossly erred in concluding assessment without issuing any notice under section 147/148 and without recording reasons as contemplated under said section. Even the date on note sheet is overwritten and tampered. Such an assessment is without jurisdiction and hence deserve to be declared null and void ab initio. Whether Legal Ground Yes, as it questions assumption of jurisdiction by the Ld. Authority in absence of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee of Rs 108200.00 for land purchased for claiming deduction under section 54B. The appellate authority is hereby prayed for allowing deduction of said amount. Nature of Ground Factual Documents Required whether available with the respondent already We hereby draw the attention of the Ld. Authority to Page 7 to Page 14 of the paper book and particularly Page 7 of the paper book. The assessee has incurred Rs 108200.00 (Rs 5000 for stamp value and Rs 103200.00 as duty and other charges) as cost of registration fees for purchase of agricultural land. The assessee has submitted the said registry before the Ld. Assessing authority who has allowed the cost of land but not the registration charges. In the appellate proceedings, the Ld. CIT (A) has not allowed the said claim for want of specific ground in relation to same. However, in the remand report itself which is enclosed vide Page No. 28-31 of paper book, the Ld. A.O has agreed to same on Page 31 of paper book (Kindly refer first para). Thus, the document in this case required was copy of relevant registry which was present with the department at the time of assessment proceedings as well as appellate proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opening the case was available with the AO. Obviously in the absence of that primary document the necessary approval of higher authority was also not there on the records. 13. In light of the evidences placed before us and after going through the records produced before us. We have observed that the department has failed to issue notice, failed to report the reasons for reopening the case and also failed to take the approval of the appropriate authority before as initiation of proceedings u/s 147 of the I.T. Act. These facts is not controverted by the ld. DR appearing on behalf of the revenue. Therefore, since the notice is not legally issued, the proceedings also not valid in the eye of law and thus, these additional technical grounds of the assessee is allowed without going into merits of the case. The appeal of the assessee is thus, allowed on technical grounds. 14. In view of our above finding, the other grounds became infructuous and thus, appeal of the assessee is allowed in ITA No. ITA No. 1372/JP/2019 for A.Y 2009-10 15. In ITA No. 1373/JP/2019, the assessee has taken the following grounds in this appeal; 1. On the facts and circumstances of the case, the Ld ..... X X X X Extracts X X X X X X X X Extracts X X X X
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