Abeda Begum , Hyderabad V. Income Tax Officer, Ward-7(1), Hyderabad

ITA 1282/Hyd/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1404 (ITAT-HYDERABAD)
• Duration Of Justice: 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 18-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NILANJAN DEY
• Assessee Lawyers: S RAMA RAO
• Section: 143(3); 147

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A , HYDERABAD BEFORE S MT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S . RIFAUR RAHMAN , ACCOUNTANT MEMBER ITA NO. 1282 /HYD/201 8 ASSESSMENT YEAR: 20 0 9 - 1 0 ABEDA BEGUM, HYDERABAD. PAN AUIPA1988K VS. INCOME - TAX OFFICER, WARD 7 ( 1 ), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S. RAMA RAO REVENUE BY : S HRI NILANJAN DEY DATE OF HEARING : 30 - 1 0 - 201 8 DATE OF PRONOUNCEMENT : 29 - 11 - 201 8 O R D E R PER S . RIFAUR RAHMAN, A .M.: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A) 3 , HYDERABAD, DATED 13 / 04 /201 8 FOR AY 20 0 9 - 10. 2. BRIEF FACTS OF THE CASE ARE THAT THE AO PASSED ASSESSMENT ORDER DATED 23/12/2016 U/S 143(3) RWS 147 OF THE INCOME - TAX ACT, 1961 ( IN SH ORT THE ACT) DETERMINING THE LONG TERM CAPITAL GAINS OF ASSESSEE AT RS. 22,29,166/ - TOWARDS THE ASSESSEES SHARE ON TRANSFER OF OPEN PLOT FOR DEVELOPMENT INTO COMMERCIAL COMPLEX TO DEVELOPERS. 3. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERRED AN A PPEAL BEFORE THE CIT(A), WHO DISMISSED THE APPEAL IN - LIMINE ON THE GROUND THAT THE ASSESSEE HAS NOT FILED APPEAL ELECTRONICALLY, WHICH IS MANDATORY. 4. AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US RAISING THE FOLLOWING GROUNDS OF APPEAL: 2 ITA NO. 1282 /HYD/201 8 ABEDA BEGUM , HYD. 1) THE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) IS ERRONEOUS BOTH ON FACTS AND IN LAW. 2) THE LEARNED COMMISSIONER OF INCOME - TAX (APPEA LS) OUGHT TO HAVE PROVIDED FURTHER OPPORTUNITY BEFORE DECIDING THE APPEAL; 3) THE LEARNED COMMI S SIONER OF INCOME - TAX (APPEALS) OUGHT TO HAVE CONSIDERED THAT FOR THE PURPOSE OF DETERMINATION OF THE CAPITAL GAIN THE CONSIDERATION CANNOT BE DETERMINED AT RS. 1,33,75,000/ - . 4) THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) OUGHT TO HAVE CONSIDERED THE FACT THAT THE AMOUNT OF RS.2,67,50,000/ - FIXED BY THE SUB REGISTRAR IS FOR THE ENTIRE PROPERTY I.E. THE LAND AND THE CONSTRUCTED AREA RELATING TO THE OWNERS AN D THE DEVELOPER AND THAT, THEREFORE, ONLY 1/4TH OF THE VALUE SHOULD HAVE BEEN ADOPTED AS THE APPELLANT EXCHANGED THE LAND IN LIEU OF CONSTRUCTED AREA. 5) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING 1/6TH SHARE OF THE APPELLANT WIT HOUT CONSIDERING THE FACT THAT THE APPELLANT HAD ONLY 1/7 TH SHARE IN THE PROPERTY. 6) ANY OTHER GROUND OR GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING . 5. IN THE GROUNDS OF APPEAL, THE PRELIMINARY CONTENTION OF THE ASSESSEE IS THE CIT(A) OUGHT TO H AVE PROVIDED FURTHER OPPORTUNITY BEFORE DECIDING THE APPEAL. 6. CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE ON TECHNICAL GROUNDS I.E. THE ASSESSEE HAS NOT FILED THE APPEA L ELECTRONICALLY AND DECIDED WITHOUT GOING INTO THE MERITS OF THE CASE. THE CONTENTION OF THE ASSESSEE IS THAT THE CIT(A) SHOULD HAVE GIVEN ONE MORE OPPORTUNITY TO COMPLY WITH THE OBJECTION OF CIT(A). 6.1 ON PERUSAL OF THE CIRCULAR NO. 20/2016, ALL THE A SSESSEES ARE ADVISED TO FILE THE E - APPEAL AND WHOEVER FILED MANUAL APPEAL, THEY CAN FILE E - APPEAL BEFORE 15/06/2016 IN ORDER TREAT THE SAME AS FILED WITHIN TIME. WE OBSERVE THAT THIS IS COMPLIANCE ADVISE AND THE ASSESSEES WHO ARE FILING THE E - APPEAL SUBSEQ UENT TO 15/06/2016, THEY WILL BE TREATED AS APPEAL FILED BELATEDLY. THEREFORE, CIT(A) SHOULD HAVE DISMISSED THE APPEAL IN - LIMINE. HE SHOULD HAVE ASKED THE 3 ITA NO. 1282 /HYD/201 8 ABEDA BEGUM , HYD. ASSESSEE TO COMPLY WITH THE DIRECTIONS AS PER CIRCULAR NO. 20/2016 AND HE COULD HAVE GIVEN ONE MORE O PPORTUNITY TO ASSESSEE TO FILE CONDONATION OF DELAY. LD. CIT(A)S MAIN DUTY IS TO DO JUDICIAL WORK JUDICIOUSLY. THEREFORE, WE REMIT THIS ISSUE BACK TO LD. CIT(A) TO ADJUDICATE THE MATTER ON MERIT AFTER GIVING ONE MORE OPPORTUNITY TO ASSESSEE TO COMPLY/RECT IFY THE SHORT COMINGS IN FILING THE E - APPEAL. ACCORDINGLY, GROUND NO. 2 IS ALLOWED. 6.2 GROUND NOS. 1 & 6 ARE GENERAL IN NATURE, HENCE, NEED NO ADJUDICATION. GROUND NOS. 2 TO 4 ARE ALLOWED FOR STATISTICAL PURPOSES AS THE CIT(A) IS DIRECTED TO ADJUDICATE THE SAME ON MERITS. 7 . IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 29 TH NOVEMBER , 2018. SD/ - SD/ - ( P. MADHAVI DEVI ) (S . RIFAUR RAHMAN ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 29 TH NOVEMBER , 2 018. KV COPY TO: - 1) MRS. ABEDA BEGUM, H.NO. 11 - 4 - 503, RED HILLS, NAMPALLY, HYDERABAD 500 004 2) ITO, WARD 7 ( 1 ) , SIGNATURE TOWERS, KONDAPUR, HYDERABAD. 3) CIT(A) 3 , HYDERABAD. 4) PR. CIT 3 , HYD . 5 ) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERABAD. 6 ) GUARD FILE