Apurva Narendra Patel Vs ITO (ITAT Ahmedabad)
At the outset, it was noted that there was the delay in filing the appeals by all the assessee for 253 days. In the condonation petition, it was explained that ld. CIT(A) orders in all three cases were received on 28/03/2018 and the same were handed over to Jinesh Shah, C.A of Shah Teelani and Associates for filing the appeals before the Hon’ble ITAT, Ahmedabad. However, appeals were not filed before the ITAT Ahmedabad Bench due to the mistakes and lapses on the part of Jinesh Shah, C.A of Shah Teelani and Assosicates. Hence, the assessee changed the authorized representative and appointed C.A. Shri Chetan L. Agarwal for filing appeals which had been filed on 04/02/2019, causing delay of 253 days in all three cases. The assessee submitted that there was no ill motive behind for not filing appeal in time. In this regard, he has also filed an affidavit dated 02/07/2020 stating the above reasons and requested to condone the delay which occurred due to administrative lapse on the part of his representative. At the time of hearing, the ld. DR left the issue for condoning the delay at the discretion of the Bench.
In view of the above, we notice that assesse had sufficient reason for not filing the said appeals before the ITAT, Ahmedabad Benches within the time prescribed. Therefore, we condone the delay of 253 days and proceed to adjudicate the appeals on merits.
FULL TEXT OF THE ORDER OF ITAT AHMEDABAD
The captioned appeals have been filed at the instance of the different Assessee against the separate orders of the Learned Commissioner of Income Tax(Appeals) Ahmedabad (in short “Ld. CIT(A)”) arising in the matter of assessment order passed under s. 143(3) r.w.s. 147 of the Income Tax Act, 1961 (here-in-after referred to as “the Act”) relevant to the Assessment year 2010-11.
2. At the outset, it was noted that there was the delay in filing the appeals by all the assessee for 253 days. In the condonation petition, it was explained that ld. CIT(A) orders in all three cases were received on 28/03/2018 and the same were handed over to Jinesh Shah, C.A of Shah Teelani and Associates for filing the appeals before the Hon’ble ITAT, Ahmedabad. However, appeals were not filed before the ITAT Ahmedabad Bench due to the mistakes and lapses on the part of Jinesh Shah, C.A of Shah Teelani and Assosicates. Hence, the assessee changed the authorized representative and appointed C.A. Shri Chetan L. Agarwal for filing appeals which had been filed on 04/02/2019, causing delay of 253 days in all three cases. The assessee submitted that there was no ill motive behind for not filing appeal in time. In this regard, he has also filed an affidavit dated 02/07/2020 stating the above reasons and requested to condone the delay which occurred due to administrative lapse on the part of his representative. At the time of hearing, the ld. DR left the issue for condoning the delay at the discretion of the Bench.
3. In view of the above, we notice that assesse had sufficient reason for not filing the said appeals before the ITAT, Ahmedabad Benches within the time prescribed. Therefore, we condone the delay of 253 days and proceed to adjudicate the appeals on merits.
First we take up ITA No. 143/AHD/2019, an appeal by the assessee
4. The assessee has raised the following grounds of appeal:
Ld.CIT(A) erred in law and well as on facts in confiring addition made by AO o f Rs.1,52,96,645/- by replacing cost of acquisition based on valuation report o f registered valuer as 01/04/1981 by arbitrary figure.
4.1 Assessee has also raised following additional grounds of appeal:
1. AO erred in lawas well as on fact in computing 100% LTCG in appellants hand on sale of land in which appellant had only 25% share, especially when assessment of other co-owners was made accepting respective share of capital gain in their individual hands.
2. AO erred in law as well as on fact in assuming jurisdictional and passing order u/s.143(3) r.w.s 147 without issuing mandatory notice u/s.143(2) of the Act.
5. At the time of hearing, Ld. Counsel for the assessee submitted that he has been instructed by the assessee not to press additional ground No. 2 of the appeal. Therefore, the same is dismissed as not pressed.
6. The interconnected issue raised by the assessee in ground no. 1 and additional ground no. 1 is that the learned CIT (A) erred in confirming the addition made by the AO for ₹ 1,52,96,645.00 under the head capital gain by ignoring the cost of acquisition declared as on 1 April 1981 in the valuation report as well as the share in the property.
7. The facts as narrated in the order of the authorities below are that the assessee in the present case is an individual and declared income under the head capital gain and other sources. The assessee in the year under consideration sold a piece of land for an amount of Rs. 2,50,88,000.00 dated 20 April 2009. The assessee has taken the cost of acquisition of the land as on 1-4-1981 based on the valuation report at Rs. 365 per square meter aggregating to Rs. 38,77,395.00 ( 10623 Square Meters X Rs. 365). The assessee further worked out the indexed cost of acquisition of land at Rs. 2,45,05,168.00 only. The assessee also claimed transfer expenses of Rs. 2,57,850.00 on the transfer of such land. The assessee finally computed the long term capital gain at Rs. 3,24,982.00 only.
7.1 However, the AO found that the average rate per square meter based on the valuation report as on 1 April 1981 works out at Rs. 142 only whereas the assessee has wrongly taken such cost at ₹365 per square meter. Accordingly the AO worked out the indexed cost of acquisition at ₹ 95,33,505.00 only. In view of the above the AO computed the long-term capital gain in the manner as detailed below:
The long term capital gain is worked out as under:
