Ashok Phillips Koyyuru , Hyderabad V. Income Tax Officer, Ward-10(1), Hyderabad

ITA 1027/Hyd/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 9318 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Assessment Year: 2010-2011
• Appeal Filed On: 21-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Additional evidence
• Section: 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI S.S.GODARA, JUDICIAL MEMBER I.T.A. NO.1027/HYD/2019 ASSESSMENT YEAR: 2010-11 ASHOK PHILLIPS KOYYURU, HYDERABAD [PAN: AGRPK0294M] VS INCOME TAX OFFICER, WARD-10(1), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI PAWAN KUMAR CHAKRAPANI, AR FOR REVENUE : SHRI SUNIL KUMAR PANDEY, DR DATE OF HEARING : 31-12-2020 DATE OF PRONOUNCEMENT : 05-01-2021 O R D E R PER S.S.GODARA, J.M. : THIS ASSESSEES APPEAL FOR AY.2010-11 ARISE FROM THE CIT(A)-6, HYDERABADS ORDER DATED 01-03-2019 PASSED IN CASE NO.10289/2018-19/A3/CIT(A)-6, IN PROCEEDINGS U/S.14 4 R.W.S.147 OF THE INCOME TAX ACT, 1961 [IN SHORT, THE A CT]. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEE HAS RAISED THE FOLLOWING SUBSTANTIVE GROUNDS IN THE INSTANT APPEAL: 1. THE ORDER OF THE LEARNED AUTHORITIES BELOW IN S O FAR AS IT IS AGAINST THE APPELLANT IS OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE , PROBABILITIES AND THE FACTS AND CIRCUMSTANCES IN TH E APPELLANT'S CASE. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) -6, HYDERABAD, IS NOT JUSTIFIED IN DISMISSING THE APPEAL PREFERRED BY THE APPELLANT BY STATING THAT THE APPELLATE AUTHORITIES ARE ALLOWED TO ADMIT ADDITIONAL ITA NO. 1027/HYD/19 :- 2 -: GROUNDS OF APPEAL EMANATING FROM THE FACTS OF THE C ASE, EVEN WHEN THE APPELLANT HAS NOT RAISED ANY ADDITIONAL GROUND, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) -6, HYDERABAD, OUGHT TO HAVE APPRECIATED THE FACT THAT THE ORDER P ASSED BY THE LEARNED ASSESSING OFFICER IS UNDER SECTION 144 R.W. S. 147 OF THE ACT, AND THERE IS NO EVIDENCE PLACED BEFORE THE LEARNED ASSESSING OFFICER TO TREAT THE SUBMISSIONS MADE BEFORE THE APPELLATE AUTHORITIES AS ADDITIONAL EVIDENCE, UNDER THE FACTS AND CIRCUMSTAN CES OF THE CASE. 4. THE APPELLANT DENIES ITSELF LIABLE TO THE ASSESS ED ON A TOTAL INCOME OF RS.1,48,64,750/-, UNDER THE FACTS AND CIRCUMSTAN CES OF THE CASE. 5. WHETHER THE LEARNED AUTHORITIES BELOW ARE JUSTIF IED IN NOT APPRECIATING THE FACT THAT THERE IS NO TRANSFER DUR ING THE IMPUGNED ASSESSMENT YEAR 2010-2011, OF THE PROPERTY AS PER T HE DEFINITION OF TRANSFER UNDER SECTION 2(47) OF THE ACT, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. WHETHER THE LEARNED AUTHORITIES BELOW ARE JUSTIF IED IN NOT APPRECIATING THE FACT THAT THE SALE DEED EXECUTED B Y THE APPELLANT ON 06/0812009, IS CANCELLED BY THE ORDER OF THE HONORA BLE COURT VIDE ORDER DATED 28/0812018, UNDER THE FACTS AND CIRCUMS TANCES OF THE CASE. 7. WHETHER THE LEARNED COMMISSIONER OF INCOME-TAX ( APPEALS)-6, HYDERABAD, IS JUSTIFIED IN NOT CONSIDERING THE ORDE R DATED 28/08/2018, OF THE HONORABLE COURT TREATING THE SAL E DEED BEARING NO.1228/2009, DATED 06/08/2009, AS NULL AND VOID, U NDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. LEARNED COUNSEL INVITED OUR ATTENTION TO THE CIT(A)S DETAILED DISCUSSION AFFIRMING THE IMPUGNED LONG TERM C APITAL GAIN ADDITION OF RS.1,48,64,752/- MADE IN THE COURS E OF ASSESSMENT FRAMED ON 30-03-2016. LEARNED AUTHORISED REPRESENTATIVE VEHEMENTLY CONTENDED DURING THE COURSE O F HEARING THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN L AW AND ON FACTS IN MAKING THE IMPUGNED ADDITION IN ASSESSEES HANDS. HE TOOK US TO HIS DETAILED PAPER BOOK RUNNING INTO 37 P GS. INTER ALIA CONTAINING HIS WRITTEN SUBMISSIONS, COPY OF SALE DEED DT.06-08-2009, DECREE SHEET DT.28-08-2018 IN CITY CIVI L SUIT ITA NO. 1027/HYD/19 :- 3 -: O.S.NO.27/2018 DECREEING THE TAX PAYERS SUIT FILED AG AINST M/S.CHADALAVADA INFRATECH LTD., SEEKING CANCELLATION O F THE SALE DEED DT.06-08-2009 FORMING THE BASIS OF THE IMPU GNED ADDITION. 3.1. THE ASSESSEES ONLY CASE THEREFORE IS THAT ONCE THE SALE DEED ITSELF STANDS DECLARED AS NULL AND VOID BY WAY OF DECLARATION COMING FROM A CIVIL COURT, THE IMPUGNED A DDITION DOES NOT SURVIVE. THE REVENUE FAILS TO DISPUTE THIS CL INCHING DEVELOPMENT DURING THE COURSE OF HEARING. WE THEREFOR E CONCLUDE THAT ONCE THE IMPUGNED ALLEGED SALE DEED ITSE LF HAS BEEN DECLARED NULL AND VOID BY WAY OF A CIVIL COURT S DECREE, THE SAME MUST IMPLY THAT THE IMPUGNED TRANSFER DT.06-08-2009 GIVING RISE TO THE LONG TERM CAPITAL GAIN IN ISSUES; HA D NEVER TAKEN PLACE. WE CONCLUDE THAT THE ASSESSING OFFICER AS WELL AS THE CIT(A) HAVE ERRED IN LAW AND ON FACTS IN ASSESSIN G THE LONG TERM CAPITAL GAIN TO THE TUNE OF RS.1,48,64,752/- IN THE ASSESSEES HANDS. THE SAME IS DIRECTED TO BE DELETED THEREFORE AS A NECESSARY COROLLARY TO THE CIVIL COURTS DECREE HE REINABOVE. 4. IN THE RESULT, THIS ASSESSEES APPEAL IS ALLOWED IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH DAY OF JANUARY, 2021 SD/- SD/- ( A. MOHAN ALANKAMONY ) ( S.S. GODAR A ) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED: 05-01-2021 TNMM ITA NO. 1027/HYD/19 :- 4 -: COPY TO : 1.ASHOK PHILLIPS KOYYURU, #1-10-66/A, PLOT NO.5, CH URCH STREET, CHIKOTI GARDENS, BEGUMPET, HYDERABAD. 2.THE INCOME TAX OFFICER, WARD-10(1), HYDERABAD. 3.CIT(APPEALS)-6, HYDERABAD. 4.PR.CIT-6, HYDERABAD. 5.D.R. ITAT, HYDERABAD. 6.GUARD FILE.