IN INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: B NEW DELHI BEFORE SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER & SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER I.T.A. No.327/Del/2016 Assessment Year: 2008-09 Shri Raj Singh, vs Income-tax Officer, S/o Shri RisalSingh, Ward 26(4), New Delhi. R/O House No.90, Baprola Village, New Delhi. PAN: DCSPS2990Q I.T.A. No.328/Del/2016 Assessment Year: 2008-09 Shri Chand Ram, vs Income-tax Officer, S/o Shri RisalSingh, Ward42(4), New Delhi. R/O House No.90, Baprola Village, New Delhi. PAN: AYMPR7607J I.T.A. No.329/Del/2016 Assessment Year: 2008-09 Shri Jaswant Singh, vs Income-tax Officer, S/o Shri Mukhtyar Singh Ward 42(4),New Delhi. R/O House No.89, Baprola Village, New Delhi. PAN: BCMPS7705K I.T.A. No.330/Del/2016 Assessment Year: 2008-09 Shri Surender Kumar, vs Income-tax Officer, S/o Shri MukhtyarSingh, Ward 42(4), New Delhi. R/O House No.89, Baprola Village, New Delhi. PAN: APYPK4873N 2 I.T.A. No.331/Del/2016 Assessment Year: 2008-09 Shri Vijay Singh, vs Income-tax Officer, S/o Shri MukhtyarSingh Ward 42(4),New Delhi. R/O House No.89, Baprola Village, New Delhi. PAN: BRNPS4683L I.T.A. No.332/Del/2016 Assessment Year: 2008-09 Shri PradeepKumar, vs Income-tax Officer, S/o Shri Rishal Singh Ward 42(4), New Delhi. R/O House No.90, Baprola Village, New Delhi. PAN: BGSPP8477M I.T.A. No.333/Del/2016 Assessment Year: 2008-09 Shri Suresh, vs Income-tax Officer, S/o Shri RishalSingh, Ward 42(4), New Delhi. R/O House No.90, Baprola Village, New Delhi. PAN: BDMPS2474Q AND I.T.A. No.335/Del/2016 Assessment Year: 2008-09 Shri BaljeetSingh, vs Income-tax Officer, S/o Shri MukhtyarSingh, Ward 42(4),New Delhi. R/O House No.89, Baprola Village, New Delhi. PAN: AHHPS4467K (Appellant) (Respondent) Appellant by:Shri Naveen Singh, CA Respondent by:Ms Ashima Neb, Sr.DR Date of hearing: 13.8.2019 Date of Pronouncement: 02.9.2019 3 ORDER PER BENCH: Challenging order dated 26.10.2015 in batch of cases involving 10 assessees, passed by learned Commissioner of Income- tax (Appeals)-15, New Delhi { CIT(A) }, assessees filed these appeals almost on common grounds. Since facts and questions for adjudication involved in all these appeals are identical, we propose to dispose these off by way of this common order. 2. Briefly stated facts are that pursuant to information received by ld. AO from Office of DIT(Inv.), New Delhi on 22.10.2009 that ten persons had sold their urban agricultural land measuring 7.6875 acres comprising various khasra at Village Baprola, Delhi to M/s Experience Builders P. Ltd. for consideration of Rs.19.60 crores and had received each sum of Rs.1,96,03,125/- during financial year 2007-08 relevant for Asstt. Year 2008-09, ld. AO issued query letter dated 2.5.2011, subsequently another letter dated 1.2.2012 but in view of non- compliance with same by any of such persons, after recording reasons, ld. AO issued notice u/s 148 of Income-tax Act, 1961 ( Act ) on 29.8.2012. There was no return of income filed and, therefore, another notice dated 14.1.2013 was issued u/s 142(1) of Act and it also remained uncompiled with. Ld. AO, therefore, proceeded u/s 144/147 of Act and taking sale consideration at Rs.1,96,03,125/- and cost as fair market value of property as on 1.4.1981 at Rs.16,50,000/- per acre as gathered from different sources ld. AO computed long-termcapital gain at Rs.1,26,14,035/- after giving benefit of indexing. 4 3. All assessees challenged respective assessment orders before ld. CIT(A). It was contended before ld. CIT(A) that notice u/s 148 of Act issued by ld. AO on 29.8.2012 was never received by any of assesses and, therefore, proceedings-initiated u/s 147/148 of Act are void ab initio. According to them, transaction culminating in capital gains did not belong to assessees in their individual capacities but property belonged to HUF since it was inherited by person who in turn inherited from his father and, therefore,the issuance of notice u/s 148 of Act to assessees in their individual capacities is incorrect and vitiates proceedings. They further contended that reasons for reopening of assessment proceedings were not communicated by ld.AO to any of persons and, therefore, necessary formalities such as raising objections or furnishing submissions could not be complied with and on that score also proceedings are vitiated. Lastly it was contended that ld. AO estimated basic cost without any material in arbitrary and erroneous manner and on that ground also assessment proceedings are liable to be quashed. 4. Ld. CIT(A), as stated above, disposed of all 10 appeals by way of common order dated 26.10.2015. Ld. CIT(A) held that since notice u/s 148 was sent by way of speed post and postal envelop was not returned by postal authorities unserved. Ld. CIT(A), therefore, in light of decisions reported in case of Milan Poddar vs CIT, 357 ITR 619 (Jharkhand), CIT vs Yamu Industries Ltd. 306 ITR 309(Del) and CIT vs Madhay Films P. ltd., 301 ITR 69, raised presumption that notice sent by way of speed post was duly served upon assessees within time prescribed and on that score, ld. CIT(A) first contention of assessee. 5 5. Ld. CIT(A) further held that throughout proceedings, at no point of time, assessees did not produce any evidence whatsoever, in support of their claim that land was belonged to HUF and not to assessees in their personal capacities,and copy of sale deed and khatauni of relevant land containing names of assessees in their individual capacity; and that there was no reference to HUF of any of such persons in such documents. Ld. CIT(A), therefore, did not agree with contention of assessee that notice issued u/s 148 of Act to persons in their individual capacities are bad in law. 6. Ld. CIT(A) further found that notice u/s 148 and subsequent notices u/s 142(1) on several occasions were not complied with by assessees and, therefore, AO was compelled to pass assessment order ex parte u/s 144 of Act. 7. Lastly, ld. CIT(A) observed that assessees could not raise any specific objection about computation made by ld. AO, sale consideration taken by ld. AO was based on amount reported by office of DIT(Inv.), New Delhi and was confirmed by land transaction on which capital gain was computed by cost of land at Rs.16.50 lacs per acre on basis of fair market value as on 1.4.1981 gathered by ld. AO from different sources and, therefore, assessees have no case on merits also. For these reasons, ld. CIT(A) dismissed appeal preferred by all ten persons. 8. At outset, it is brought to our notice by both counsel that one of appellants before ld. CIT(A) by name of Shri Naresh Kumar challenged this common order dated 26.10.2015 passed by first appellate authority on identical grounds as raised in these appeals and 6 such appeal in ITA No.334/Del/2016 was disposed of by coordinate bench of this Tribunal by order dated 24.5.2019. Both counsel submitted that since facts and questions of law giving rise of grounds are identical, same course may be followed in this batch of appeals also. We record said statement. 9. We have gone through order dated 24.5.2019 in ITA No.334/16 in case of Naresh Kumar. It is categorical observation of Tribunal on aspect of presumption of service of notice that in absence of any PAN available with authorities about identity ofthe sellers under sale deed, only source of information was copy of sale deed and addressees mentioned therein and, therefore, authorities discharged their burden by issuing notices or communications to such addresses. In view of absence of any claim of person to say that addresses mentioned in sale deed are wrong, it is not open for said person to say that they did not receive notices/communications. 10. On this aspect, on careful consideration of submissions on either side in light of material on record, we are also of considered opinion that law presumes that any administrative or judicial act is performed properly and regularly as per procedure prescribed under law.Since assessees do not contend that address was wrong nor is there was any reason for non-service of notice, we conclude that it is not open for assessees to agitate issue of non- service of notice. 11. In so far as merits of case are concerned, coordinate bench took into consideration fact that assessees have not 7 produced any evidence before authorities below in respect of fair market value of land as on 1.4.1981 and, therefore, matter had to go back to file of ld. AO for determination of fair market value of impugned property as on 1.4.1981 after giving opportunity of being heard to assessee. 12. Relevant observations of coordinate bench need to be extracted for completeness and those read as follows: We set aside this issue back to file of ld. Assessing officer to determine fair market value of impugned property as on 1.4.81 by giving opportunity to assessee to first show cost of acquisition of asset and fair market value of asset. Then at option of assessee any one of them can be taken as cost of acquisition of asset for indexation. If ld. Assessing officer is not satisfied with fair market value of asset shown by assessee as on 1.4.81, then ld. Assessing officer may decide whole issue either by referring matter to district valuation officer for determining fair market value or accepting fair market value shown by assessee and then decide computation of capital gain on sale of above land in accordance with provisions of law. 13. In view of above, while respectfully following view taken by coordinate bench and in view of submissions made on either side, we set aside impugned order and remand issue to file of ld. AO to comply with above directions. 8 14. In result, all appeals are allowed for statistical purposes. Order pronounced in Open Court on 2 nd September, 2019. Sd/- sd/- (PRASHANT MAHARISHI) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 2 nd September, 2019. VJ Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI Draft dictated 14.8.2019 Draft placed before author 16.08.2019 Approved Draft comes to Sr.PS/PS Order signed and pronounced on File sent to Bench Clerk Date on which file goes to AR Date on which file goes to Head Clerk. Date of dispatch of Order. Date of uploading on website Raj Singh v. Income-tax Officer, Ward-26(4), New Delhi