Sri Mohd Aleemuddin, R.R.Dist V. DCIT, Central Circle-6, Hyderabad

ITA 1264/HYD/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 77870 (ITAT-HYDERABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 08-03-2011
• Assessment Year: 2008-2009
• Appeal Filed On: 01-10-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ADAGIRI
• Assessee Lawyers: A V RAGHURAM
• Keywords: Capital asset
• Section: 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. P.MADHAVI DEVI, JUDICIAL MEMBER I TA NO. ASSESSMENT YEAR APPELLANT RESPONDENT 1264 /HYD/201 0 200 8 - 0 9 SHRI MOHD ALEEMUNDDIN, NARSINGI VILLAGE, RAJENDRANAGAR MANDAL, RANGAREDDY DISTRICT. (PAN A RSPM 6874 D ) DY. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE 6, HYDERABAD 1265 /HYD/201 0 200 8 - 0 9 SMT. ZAHIDA BEGUM, NARSINGI VILLAGE, RAJENDRANAGAR MANDAL, RANGAREDDY DISTRICT. (PAN A XCP B 8612 N ) DY. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE 6, HYDERABAD 1266 /HYD/201 0 200 8 - 0 9 SMT. NA J MA BEGUM, NARSINGI VILLAGE, RAJENDRANAGAR MANDAL, RANGAREDDY DISTRICT. (PAN A XCPB 8611 R ) DY. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE 6, HYDERABAD 1267 /HYD/201 0 200 8 - 0 9 SMT.NASEEMA BEGUM NARSINGI VILLAGE, RAJENDRANAGAR MANDAL, RANGAREDDY DISTRICT. (PAN A XCP B 8430 A) DY. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE 6, HYDERABAD APPELLANTS BY : SHRI A.V.RAGHURAM RESPONDENT BY : SHRI B.YADAGIRI DATE OF HEARING 2 9 .04.2014 DATE OF PRONOUNCEMENT 29.04.2014 2 ITA NOS. 1 264 TO 1268 /HYD/201 0 SHRI MOHD ALEEMUNDDIN & 3 ORS , NARSINGI VILLAGE, RAJENDRANAGAR MANDAL, RANGAREDDY DISTRICT. O R D E R PER SMT. P.MADHAVI DEVI, JUDICIAL MEMBER: THESE ARE THE APPEALS BY THE RESPECTIVE ASSESSEES FOR THE ASSESSMENT YEAR 2008 - 09. THEY ARE DIRECTED AGAINST SIMILAR BUT SEPARATE ORDERS OF THE COMMISSIONER OF INCOME - TAX(APPEALS) I, HYDERABAD, ALL DATED 28.7.2010. SIN C E ISSUE INVOLV ED IN THE APPEALS OF THE RESPECTIVE ASSESSEES IS COMMON AND ALL THE ASSESSEES ARE THE OWNERS AND POSSESSORS OF THE LAND S ADJOINING TO EACH OTHER, WHICH HA VE BEEN SOLD AND THE ASSESSEES HAVE CLAIMED DE D U CT ION UNDER S.54F OF THE INCOM E - TAX AC T, WHICH HAS BEE N DENIED BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A), THE SE APPEALS WE RE HEARD TOGETHER AND ARE DISPOSED OF BY THIS COMMON CONSOLIDATED ORDER. 2. THE LEARNED COUNSEL FOR THE ASSESSEES SUBMITTED THAT THE ASSESSEES HEREIN ARE OWNERS OF THE LAND S AND HAVE SOLD THE LANDED PROPERTY TO DLF GROUP OF COMPANIES AND HAVE RECEIVED SALE PROCEEDS IN THE YEAR UNDER CONSIDERATION. DURING THE ASSESSMENT PROCEEDINGS UNDER S.143(3) READ WITH S.148 OF THE INCOME - TAX ACT, THE ASSESSEES HAVE CLAIMED DEDUCTION UNDE R S.54F OF THE INCOME - TAX ACT, BUT THE ASSESSING AUTHORITY HAS DENIED THE DEDUCTIONS CLAIMED BY THE ASSESSEES HOLDING THAT EXCEPT FOR SUBMISSION OF SOME EVIDENCE WITH REGARD TO CASH WITHDRAWALS AS EVIDENCE FOR UTILIZATION OF THE AMOUNTS FOR CONSTRUCTION OF THE HOUSES , THE ASSESSEES HAVE NOT PRODUCED ANY EVIDENCE IN SUPPORT OF THE CONSTRUCTION OF HOUSES. 3. AGGRIEVED, THE ASSESSEES PREFERRED APPEALS BEFORE THE CIT(A), WHO CONFIRMED THE ORDERS OF THE ASSESSING OFFICER. HENCE, ASSESSEES ARE IN SECOND APPEAL BEFORE US. 4. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEES WHILE REITERATING THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW, SUBMITTED THAT B BENCH OF THIS TRIBUNAL IN ITA NO.1260/HYD/2010 TO 1263/HYD/2010 IN THE 3 ITA NOS. 1 264 TO 1268 /HYD/201 0 SHRI MOHD ALEEMUNDDIN & 3 ORS , NARSINGI VILLAGE, RAJENDRANAGAR MANDAL, RANGAREDDY DISTRICT. GROUP CASE S OF SHRI MOHD. IMAMUDDIN, NARSINGI VILLAGE AND OTHERS, FOR THE VERY SAME ASSESSMENT YEAR, VIZ. 2008 - 09, REMANDED THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION OF THE ISSUE AND GIVING THE ASSESSEES AN OPPORTUNITY TO PRODUCE REL EVANT EVIDENCE. A COPY OF THE SAID ORDER DATED 31.8.2012 IS FILED BEFORE US. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE HOWEVER, SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 6. HAVING HEARD BOTH THE PARTIES AND HAVING CONSIDERED THE MATERIAL ON RECORD, WE FIND THAT GROUP OF CASES PERTAINING TO THE ASSESSEES QUA THE OWNERS OF THE LANDS ADJOINING TO THE LANDS OF THE ASSESSEES, WERE DISPOSED OF BY THIS TRIBUNAL BY HOLDING AS UNDER - 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON R ECORD. THE PROVISIONS OF SECTION 54F ARE THAT IF THE ASSESSEE BEING A INDIVIDUAL OR HUF, THE CAPITAL GAIN ARISES FROM TRANSFER OF ANY LONG TERM CAPITAL ASSET NOT BEING A RESIDENTIAL HOUSE AND THE ASSESSEE HAS, WITHIN A PERIOD OF ONE YEAR BEFORE OR TWO YEA RS AFTER THE DATE ON WHICH THE TRANSFER TAKES PLACE, PURCHASES OR, HAS WITHIN A PERIOD OF THREE YEARS AFTER THAT DATE CONSTRUCTED A RESIDENTIAL HOUSE, THE CAPITAL GAIN WILL NOT BE CHARGED TO THE EXTENT OF COST OF NEW ASSET IF THE ENTIRE NET CONSIDERATION I S INVESTED OR PROPORTIONATE TO THE EXTENT OF NEW ASSET BEARS TO THE NET CONSIDERATION IF THE CONDITIONS LAID DOWN U/S. 54F ARE FULFILLED THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S. 54F. ACCORDINGLY, THE ONUS IS ON THE ASSESSEES TO PROVE THAT THE CLAIM MADE BY THEM U/S. 54F IS IN ACCORDANCE WITH LAW. IN VIEW OF THIS, CONSIDERING THE ARGUMENTS OF THE ASSESSEES COUNSEL, AS THERE IS LACK OF ENQUIRY FROM THE SIDE OF THE ASSESSING OFFICER IN THE INTEREST OF JUSTICE, WE REMIT BACK THE ISSUE TO THE FILE OF THE ASS ESSING OFFICER FOR FRESH EXAMINATION. HOWEVER, WE MAKE IT CLEAR THAT THE ASSESSEE SHALL CO - OPERATE WITH THE ASSESSING OFFICER BY PLACING NECESSARY EVIDENCE TO SUGGEST THAT CONSTRUCTION HAS BEEN COMPLETED AS PRESCRIBED IN THE PROVISIONS OF SECTION 54F OF TH E ACT AND THE MERE WITHDRAWALS FROM BANK ACCOUNT BY THE ASSESSEE ITSELF CANNOT BE CONSIDERED AS IT IS USED FOR CONSTRUCTION. IT MAY BE USED FOR ANY PURPOSE AND THE ASSESSEE IS DIRECTED TO PROVE THE ACTUAL TRANSACTION DURING THE AS PERIOD PRESCRIBED IN SECT ION 54F OF THE IT ACT. IF THE PROVISIONS OF SECTION 54F ARE COMPLIED WITH BY THE ASSESSEE, THE DEDUCTION U/S. 54F IS TO BE GRANTED IN ACCORDANCE WITH LAW. IT IS NEEDLESS TO SAY THAT THE ONUS IS ON THE ASSESSEES TO PROVE THEIR CLAIMS. THE ASSESSING OFFICER SHALL AFFORD REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEES. 4 ITA NOS. 1 264 TO 1268 /HYD/201 0 SHRI MOHD ALEEMUNDDIN & 3 ORS , NARSINGI VILLAGE, RAJENDRANAGAR MANDAL, RANGAREDDY DISTRICT. SINCE F ACTS AND CIRCUMSTANCES OF THE C A SE BEFORE US IN THESE APPEALS ARE EXACTLY SAME , AS THOSE CONSIDERED BY THE TRIBUNAL IN ITS ORDER DATED 31.8.2012 , AND ONE OF US, I.E. ACCOUN T ANT MEMBE R IS AUTHOR AND SIGN A T O RY O F THE SAID ORDER DATED 31.8.2012 , WE ARE INCLINED TO FOLLOW TH E DECISION OF THE COORDINATE BENCH . WE ACCORDINGLY SET ASIDE THE ORDERS OF THE CIT(A) IN THESE CASES AS WELL AND REMIT THE MATTER S TO THE FILE O F THE ASSESSING OFFICE R WITH SIMILAR DIRECTIONS. NEEDLESS TO MENTION THAT THE ASSESSING OFFICER SHALL GIVE FAIR OPPORTUNITY OF HEARING TO THE ASSESSEES BEFORE DECIDING THESE MATTERS AFRESH IN ACCORDANCE WITH LAW AND AS PER THE DIRECTIONS OF THE TRIBUNAL IN ITS ORDER DATED 31. 8.2012. 7 . IN THE RESULT, ASSESSEES APPEALS ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE CONCLUSION OF THE H E ARING ON 29.4.2014 SD/ - SD/ - (CHANDRA POOJARI) (P.MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER DT/ - 29 TH APRIL, 2014 COPY FORWARDED TO: 1. SHRI MOHD ALEEMUNDDIN, 1 - 65, NARSINGI VILLAGE, RAJENDRANAGAR MANDAL, RANGAREDDY DISTRICT. 2 . SMT. ZAHIDA BEGUM, 1 - 65, NARSINGI VILLAGE, RAJENDRANAGAR MANDAL, RANGAREDDY DISTRICT. 3. SMT. NAJMA BEGUM, 1 - 65, NARSINGI VILLAGE, RAJENDRANAGAR MANDAL, RANGAREDDY DISTRICT. 5 ITA NOS. 1 264 TO 1268 /HYD/201 0 SHRI MOHD ALEEMUNDDIN & 3 ORS , NARSINGI VILLAGE, RAJENDRANAGAR MANDAL, RANGAREDDY DISTRICT. 4. SMT.NASEEMA BEGUM , 1 - 65, NARSINGI VILLAGE, RAJENDRANAGAR MANDAL, RANGAREDDY DISTRICT. 5. 6. 7. 8 DY. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE 6, HYDERABAD COMMISSIONER OF INCOME - TAX(APPEALS) I, HYDERABAD COMMISSIONER OF INCOME - TAX CENTRAL, HYDERABAD DEPARTMENTAL REPRESENTATIVE ITAT, HYDERABAD B.V.S