Srinath Sadanala IRS Jt. Commissioner of Income Tax, Circle-9(1), Hyderabad V. Devari Nagappa , Hyderabad

ITA 1190/Hyd/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5658 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB-A
• Assessment Year: 2010-2011
• Appeal Filed On: 25-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KIRAN KATTA
• Keywords: Competent authority; Capital Gains
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER I.T.A. NO. 1190/HYD/2019 ASSESSMENT YEAR: 2010-11 JOINT COMMISSIONER OF INCOME TAX (OSD), CIRCLE-9(1), HYDERABAD VS SRI DEVARI NAGAPPA, HYDERABAD [PAN: AETPD6160M] (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI KIRAN KATTA, DR FOR ASSESSEE : NONE DATE OF HEARING : 17-08-2021 DATE OF PRONOUNCEMENT : 20-09-2021 O R D E R PER S.S.GODARA, J.M. : THIS REVENUES APPEAL FOR AY.2010-11 ARISES FROM THE CIT(A)-7, HYDERABADS ORDER DATED 24-01-2019 PASSED IN CASE NO.0138/CIT(A)-7/2017-18, IN PROCEEDINGS U/S.143(3) R.W.S.147 OF THE INCOME TAX ACT, 1961 [IN SHORT, THE A CT]. CASE CALLED TWICE. NONE APPEARED AT THE ASSESSEES BEHEST. HE IS ACCORDINGLY PROCEEDED EX-PARTE. 2. WE NOTICE AT THE OUTSET THAT THIS REVENUES APPEAL SUFFE RS FROM DELAY OF 108 DAYS STATED TO BE ATTRIBUTABLE TO THE REA SONS MENTIONED IN ITS CONDONATION PETITION/AFFIDAVIT AND ON A CCOUNT ITA NO. 1190/HYD/2019 :- 2 -: OF NO REBUTTAL THEREOF FROM ASSESSEES SIDE, THIS DELA Y STANDS CONDONED THEREFORE. 3. COMING TO THE REVENUES SOLE SUBSTANTIVE GRIEVANCE THAT THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN REVERSING ASSESSMENT FINDINGS TREATING THIS ASSESSEE AS A BENAMI DAR THEREBY MAKING SHORT TERM CAPITAL GAIN ADDITION ON PROTE CTIVE BASIS OF RS.4,52,40,000/-, WE NOTE THAT THE LOWER APPE LLATE DISCUSSION TO THIS EFFECT READS AS UNDER: 5. I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELL ANT AND FINDINGS OF THE ASSESSING OFFICER CAREFULLY. REGARDING GROU ND NOS.2 & 3, THE ASSESSING OFFICER MADE AN ADDITION OF RS.4,07,99,30 0/- UNDER THE HEAD 'SHORT TERM CAPITAL GAINS' ON PROTECTIVE BASIS . THE ASSESSING OFFICER HELD THAT THE APPELLANT HAS SOLD THE PLOT W ITH NO.623-F IN SY. NOS.403/1(OLD), 120 (NEW) OF SHAIKEPT (V) AND 102/1 OF HAFEEZPET (V) WITHIN THE APPROVED LAYOUT OF THE JUBILEE HILLS COOPERATIVE SOCIETY TO SRI V.SURESH BABU FOR A DOCUMENT CONSIDERATION O F RS.1,60,00,000/-, WHICH IS AT A MUCH LOWER THAN THE MARKET VALUE DETERMINED BY SUB REGISTRAR AT RS.4,52,40,000/- IN THE CAPACITY OF BENAMIDAR AND SMT RENUKA DATLA WAS CONSIDERED AS BE NEFICIAL OWNER OF THE PROPERTY. THEREAFTER, ASSESSMENT ORDER WAS PASSED U/S.143(3) RWS 147 ASSESSING THE CAPITAL GAINS OF R S.4,07,99,300/- IN THE HANDS OF SMT RENUKA DATLA FOR A.Y.2010-11, D ATED 19-12- 2017 HOLDING THAT SMT RENUKA DATLA WAS THE ACTUAL O WNER OF THE PROPERTY AND THE APPELLANT SRI D.NAGAPPA IS HER BEN AMI. ON REFERENCE MADE TO COMPETENT AUTHORITY UNDER PROHIBI TION OF BENAMI TRANSACTION ACT, 1988, ASSESSEE WAS DECLARED AS BEN AMIDAR U/S.2(10) OF THE PBPT ACT OF PROPERTY SOLD. ON FURT HER REFERENCE BY INITIATING OFFICER & DEPUTY COMMISSIONER OF INCOME TAX (BENAMI PROHIBITION), HYDERABAD, HON'BLE MEMBERS OF ADJUDIC ATING AUTHORITY U/S.71 OF THE PROHIBITION OF BENAMI TRANSACTIONS AC T, 1988, NEW DELHI REF NO.R-365/2017 ORDER U/S.26(3), DATED 31-1 2-2018, HAVE HELD IN PARA 9 & 10 AS UNDER: '9. CONSIDERING THE SUBMISSIONS OF THE BOTH SIDE AN D THE AFORESAID DISCUSSION IT IS HELD THAT THE PROPERTY / MONEY DEPOSITED IN BANK ACCOUNT FALLS WITHIN THE AMBIT OF BENAMI PROPERTY WITHIN THE MEANING SECTION 2(8) AND THE SA ID PROPERTY IS ALSO SUBJECT MATTER OF BENAMI TRANSACTIONS. 10. CONSIDERING THE FACTS CONVEYED IN ORDER U/S.24( 4) PASSED BY I.O. INVESTIGATION CONDUCTED BY THE I.O., MATERI AL IN POSSESSIONS OF I.O., STATEMENT OF THE 'DEFENDANTS A ND ITA NO. 1190/HYD/2019 :- 3 -: SUBMISSIONS OF THE I.O. AND THE DEFENDANTS IT IS HE LD THAT THE PROPERTY / MONEY DEPOSITED IN BANK ACCOUNTS UNDER ATTACHMENT IS BENAMI PROPERTY AND IS SUBJECT MATTER OF BENAMI TRANSACTIONS WITHIN THE MEANING OF SECTION 2(8) AND 2(9) OF THE PBPT ACT.' ON CONSIDERATION OF THE FACTS OF THE CASE, ORDER OF THE CASE, ORDER OF THE ADJUDICATING AUTHORITY U/S.71 OF THE PROHIBITIO N OF BENAMI TRANSACTIONS ACT, 1988, ORDER OF THE ASSESSING OFFI CER PASSED U/S.143(3) RWS 147, DATED 19-12-2017 FOR A.Y.2010-1 1, I AM OF THE CONSIDERED VIEW THAT APPELLANT IS NOT THE BENEFICIA RY OF THE TRANSACTIONS AND THE REAL BENEFICIARY IS SMT RENUKA DATLA. THEREFORE, THE PROTECTIVE ADDITION MADE BY THE ASSESSING OFFIC ER IN THE HANDS OF APPELLANT REQUIRES TO BE DELETED. HENCE, THE ASSESS ING OFFICER IS DIRECTED TO DELETE THE ADDITION. THESE GROUNDS OF A PPEAL ARE ALLOWED. 4. WE FIND NO MERIT IN THE REVENUES INSTANT SOLE SUBSTANTIVE GRIEVANCE SEEKING TO REVIVE THE IMPUGNED PROTECTIVE ADDITION IN THE ASSESSEES HANDS DUE TO THE CLINCHING REASON THAT THE PRESCRIBED ADJUDICATING AUTHO RITY U/S.71 OF THE PROHIBITION OF BENAME TRANSACTION ACT, 19 88S ORDER DT.19-12-2017 (SUPRA) HAS ALREADY GIVEN A CONC LUSIVE FINDING OF THE FACT THAT THE REAL BENEFICIARY HEREIN I S ONE SMT.RENUKA DATLA ONLY. WE THUS UPHOLD THE LEARNED CIT( A)S ACTION DELETING THE IMPUGNED ADDITION(S) FOR THIS PRECI SE REASON ALONE AS THERE IS NO BASIS LEFT FOR ASSESSING THE SUM IN ISSUE IN ASSESSEES HANDS ON PROTECTIVE BASIS. NO OTHER ARGUMENT OR GROUND HAS BEEN PRESSED BEFORE US. 5. THIS REVENUES APPEAL IS DISMISSED IN ABOVE TERMS . ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH SEPTEMBER, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S.S.G ODARA) ACCOUNTANT MEMBER JUDICIAL MEM BER HYDERABAD, DATED: 20-09-2021 TNMM ITA NO. 1190/HYD/2019 :- 4 -: COPY TO : 1.JOINT COMMISSIONER OF INCOME TAX (OSD), CIRCLE-9( 1), HYDERABAD. 2.SRI DEVARI NAGAPPA, 1-10-29/254/262, PLOT NO.62, SUBHASH NAGAR, KUSHAIGUDA, HYDERABAD. 3.CIT(APPEALS)-7, HYDERABAD. 4.PR.CIT-7, HYDERABAD. 5.D.R. ITAT, HYDERABAD. 6.GUARD FILE.