COMMISSIONER OF INCOME TAX Vs. KAMAL KUMAR BANSAL

JUDGEMENT

(1.) The only issue which arises in this appeal is whether the order upholding deletion, of addition of Rs. 21,98,141/- made by the Assessing Officer, is perverse? The facts and circumstances of the case, briefly stated, are as follows. The assessee-respondent was a joint owner of premises No. 106/A, S.N. Banerjee Road. He had, to be precise, 1/3rd interest therein. He entered into a joint venture agreement where under the land was taken over for the purpose of construction under the name and style of Tivoli Finvest Pvt. Ltd. The assessee-respondent in his Return for the Assessment Year 2005-06 had shown indexed cost of his share in the land at a sum of Rs. 16,49,606/-. He had also shown fair market value of his share in the land at a sum of Rs. 43,11,000/- and thus had arrived at a long term capital gain of a sum of Rs. 26,61,394/-. The contention of the assessee is that he received a sum of Rs. 21,98,141/- from Tivoli Finvest Pvt. Ltd. In his computation he deducted Rs. 43,11,000/- on account of the fair market value and thus arrived at a loss of Rs. 21,79,077/-.

(2.) The case was selected for scrutiny assessment and notices were issued under sections 143(2) and 142(1) of the Income Tax Act, 1961, in pursuance whereof the assessee appeared. Subsequently, a notice under section 142(1) of the Income-tax Act was issued on 23rd November, 2007, but no one appeared. An assessment notice was served on 13th December, 2007 fixing the date of hearing on 19th December, 2007. Again no one appeared. In the circumstances, summons were issued under section 131 of the Income-tax Act. In spite thereof no one appeared. Finally a show cause notice was issued giving the last and final opportunity which also went unresponded. The Assessing Officer, in the circumstances, completed the assessment disallowing deduction of a sum of Rs. 43,11,000/- on account of fair market value from the business income of the assessee. In the process there was an addition of a sum of Rs. 21,98,141/-.

(3.) Aggrieved by the order of the Assessing Officer, the assessee preferred an appeal. The appellate authority without going into the matter allowed the appeal on the ground that an identical issue was decided by the learned CIT (Appeals)-XIX, Kolkata in the case of appellant's wife, Smt. Sarojrani Bansal. Aggrieved by the order of the appellate authority, the Revenue approached the Tribunal. The Tribunal dismissed the appeal on the ground that the Revenue had not filed any appeal against the decision of CIT (Appeals) in the case of Sarojrani. Bansal, and therefore, the views expressed by the Apex Court in the case of Union of India v. Kaumudini Narayan Dalal, 2001 249 ITR 219 and in the case of Berger Paints India Ltd. v. CIT, 2004 266 ITR 99 became applicable. On that basis the appeal was dismissed.