Telukunta Shiva KUmar (HUF), Secunderabad V. Income Tax Officer, Ward-10(5), Hyderabad

ITA 1283/Hyd/2018

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 4265 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 18-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K J DIVYA
• Assessee Lawyers: KIRAN
• Keywords: Reopening of assessment; Cost of acquisition
• Section: 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A ', HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN , ACCOUNTANT MEMBER S.NO. ITA NO. AY APPELLANT RESPONDENT 1 981 /H/1 8 2010 - 11 TELUKUNTA SRINIVASA RAO (HUF), SECUNDERABAD. PAN AAAHT7950G INCOME - TAX OFFICER, WARD 10(5), HYD. 2 1284 /H/1 8 - DO - TELUKUNTA SHYAM RAO (HUF), SECBAD PAN AADHT 0015M - DO - 3 1 099 /H/1 8 - DO - TELUKUNTA AMARNATH (HUF), SECBAD PAN AADHT 0398F - DO - 4 1 283 /H/1 8 - DO - TELUKUNTA SHIVA KUMAR (HUF), SECBAD. PAN AADHT 0017K - DO - A SSESSEE BY: SHRI KIRAN RE VENUE BY: SMT. K.J. DIVYA DATE OF HEARING: 1 9 / 0 9 / 201 8 DATE OF PRONOUNCEMENT: 10 / 1 0 /201 8 O R D E R PER BENCH: T H E S E APPEAL S ARE FILED BY THE A SSESSEE S, WHO ARE FAMILY MEMBERS, AGAINST ORDER S OF C IT (A) - 6 , HYDERABAD , ALL DATED , 19 / 0 3 /201 8 . AS ISSUE IS IDENTICAL IN ALL THESE APPEALS, THEY WERE CLUBBED AND HEARD TOGETHER, THEREFORE, A COMMON ORDER IS PASSED FOR THE SAKE OF CONVENIENCE. 2. BRIEFLY THE FACTS AS TAKEN FROM T. SRINIVASA RAO (HUF) IN ITA NO. 981 /HYD/201 8 ARE, THE ASSESSEE ALONG WITH OTHER FAMILY MEMBERS HAD ENTERED INTO AN AGREEMENT WITH M/S SAPTAGIRI CONSTRUCTION FOR DEVELOPMENT OF THE PROPERTY BEARING NO. 9 - 1 - 219/232, ST. MARYS ROAD, SECUNDERABAD AND I.T.A. NO. 981 / HYD/201 8 AND OTHERS T. SRINIVASA RAO (HUF) AND OTHERS. 2 FOR CONST RUCTION OF A MULTI - STOREYED COM MERCIAL COMP LEX CONSISTING OF SHOPS, SHOWROOMS, OFFICES, PARKING PLACES AND OTHER COMMERCIAL UNITS ETC., VIDE 'AGREEMENT FOR DEVELOPMENT - CUM - GPA' THAT WAS GOT REGISTERED VIDE DOCUMENT NO . 40 /2000 DATED 10/01/2000. 2.1 AS PER THE ABOVE AGREEMENT CUM GPA IT WAS AGREED THAT THE DEVELOPER WOULD BEAR ALL THE EXPENSES INCLUDING CONSTRUCTION AND OTHER COSTS THAT MAY ARISE FROM TIME TO TIME. IT WAS AGREED THAT AFTER COMPLETION OF THE SAID CONSTRUCTION THE LAND LORDS WOULD GET 45% OF THE BUILT - UP AREA, AS EARMARKED IN THE SANCTIONED PLAN, FREE OF COST IN LIEU OF UTILISATION OF THE LAND OWNED BY LANDLORD. THE DEVELOPER WOULD RETAIN THE REMAINING 55% OF THE BUILT - UP AREA. AS PER THE TERMS AND CONDITIONS OF THE AGREEMENT FOR DEVELOPMENT - C UM - GPA A ND SUBSEQUENT SUPPLEMENTARY AGREEMENT DATED 17/01/2000 AND OTHER ORAL SETTLEMENTS THE LANDLORDS WERE SUPPOSED TO RECEIVE THE CONSTRUCTED AREA OF THEIR SHARE IN THE FINANCIAL YEAR 2009 - 10 RELEVANT TO THE A.Y. 2010 - 11. THOUGH THE ORIGINAL AGREEMENT H AD BEEN ENTERED INTO ON 10/01/2000 AND TOKEN AMOUNTS OF ADVANCES WAS RECEIVED AS PER CLAUSE - 30(A) TO (E) OF THE AGREEMENT, THE DEVELOPER WAS TO GET THE LAND VACATED FROM THE OCCUPANTS LIKE RESIDENTIAL PORTIONS, PART OF PETROL PUMP ETC . AND IF NECESSARY THE DEVELOPER WAS TO PROVIDE ALTERNATIVE ACCOMMODATION ELSEWHERE TO THE OCCUPANTS FOR GETTING POSSESSION OF THE LAND FOR CARRYING ON DEVELOPMENT ACTIVITY ON THE SAID LAND. THE DEVELOPER THEREFORE DID NOT IMMEDIATELY TAKE POSSESSION OF THE SAID LAND AND HAD CO MMENCED THE SAME AFTER GETTING THE LAND VACATED IN THE YEAR 2003. AC CORDING TO THE ASSESSING OFFICER, AS AGREED, THE DEVELOPER COMPLETED THE CONSTRUCTION AND WAS READY TO HANDOVER THE COMPLETED 45% SHARE OF THE LANDLORD IN THE FINANCIAL 2009 - 10 WHICH WAS S EEN FROM T H E DEVELOPER'S LETTER I.T.A. NO. 981 / HYD/201 8 AND OTHERS T. SRINIVASA RAO (HUF) AND OTHERS. 3 DATED 2 2/12/2009 ADDRES SE D TO THE LAND LORD S (ASSESSEE) THAT MENTI ON ED SETTLEMENT AMOUNTS TO BE PAID AND STATED THAT THE CONSTRUCTION OF THE PORTION ALLOTTED TO LANDLORDS WAS COMPLETE AND REQUESTED THE LANDLORDS TO TAKE POSS ESSION OF THE COMPLETED SHARE (I.E.45%) OF THE BUILT - UP AREA. THUS, ACCORDING TO THE ASSESSING OFFICER, THOUGH THERE WAS AN AGREEMENT IN THE YEAR 2000, THE CONSTRUCTION WORK WAS COMPLETED IN F. Y 2009 - 10 AND THEREFORE CAPITAL GAINS A RISING, IF ANY, IN THE HANDS OF THE LANDLORDS WERE ASSESSABLE TO TAX ONLY IN THE AY 2010 - 11. 2.2 IN VIEW OF THE ABOVE OBSERVATIONS , THE AO ISSUED A NOTICE U/S. 148 TO THE ASSESSEE AND LATER A LETTER WAS ISSUED, ASKING THE ASSESSEE TO SHOW CAUSE AS TO W HY THE CAPITAL GAINS ARISING ON ACCOUNT OF TRANSFER OF PROPERTY IN QUESTION, SHOULD NOT BE TAXED IN VI EW OF THE PROVISION OF SECTION 5 OC OF THE I. T . ACT, 1961. IN RESPONSE TO THE SAID NOTICE, THE ASSESSEE SUBMITTED ITS OBJECTION S, WHICH ARE AS UNDER: (A ) THE TRANSFER OF 55% OF THE LAND WAS EFFECTED ON 10 / 01 / 2000 SUBJECT TO THE CONSTRUCTION AND HANDING OVER OF 45% OF THE CONSTRUCTED AREA AND SUCH CONSTRUCTION IS NOT COMPLETE EVEN NOW. (B) THE TRANSFER, IF ANY, AS PER THE DEVELOPMENT AGREEMENT WAS ALREAD Y EFFECTED ON 10/01 /2 000 AS HELD BY THE HIGH COURT OF ANDHRA PRADESH IN THE CASE OF SRI POTLA NAGESWARA RAO AND IS ASSESSABLE FOR THE ASSESSMENT YEAR 2000 - 2001. (C) NO FURTHER TRANSFER IS REQUIRED TO BE MADE AFTER THE DEVELOPMENT AGREEMENT WAS ENTERED IN TO BY THE OWNERS IN FAVOUR OF THE DEVELOPER. (D) THE SALE DOCUMENT WAS NEITHER EXECUTED BY THE APPELLANT NOR IS REQUI RED TO BE EXECUTED BY THE APPELL ANT AND IS INVALID. (E) THE DEVELOPER DID NOT EXECUTE THE DEVELOPMENT AGREEMENT IN IT TRUE TERMS AND, T HEREFORE, THE MATTER WAS REFERRED TO THE ARBITAL TRIBUNAL. I.T.A. NO. 981 / HYD/201 8 AND OTHERS T. SRINIVASA RAO (HUF) AND OTHERS. 4 (F) THE ARBITAL TRIBUNAL, AFTER CONSIDERING ALL THE FACTS, HELD THAT THE DEVELOPMENT AGREEMENT WAS ENTERED INTO ON 10 / 01 / 2000 AND THAT THE CONSTRUCTED AREA AS SPECIFIED IN SUCH DEVELOPMENT AGREEM ENT HAS TO BE HANDED OVER TO THE OWNERS. (G) IT WAS SUBMITTED BEFORE THE ASSESSING OFFICER THAT IN VIEW OF THE DIRECTIONS OF THE ARBITAL TRIBUNAL, THE SALE DOCUMENT EXECUTED BY THE DEVELOPER AS A GENERAL POWER OF ATTORNEY IS NOT A VALID DOCUMENT. IN VIEW OF THIS THE TRANSFER EITHER TAKES PLACE ON 10.01.2000 OR ON THE DATE OF COMPLETION AND HANDLING OVER THE CONSTRUCTED AREA. 2.3 THE AO DID NOT FIND THE REPLY OF THE ASSESSEE TO BE ACCEPTABLE. A CCORDING TO HIM, IN THE FINAL AWARD , IT WAS MENTIONED THAT THOUGH THE CONSTRUCTION WAS NOT IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE DEVEL OPMENT AGREEMENT, THE DEVELOPER WAS READY TO HANDOVER THE POSSESSION ON THE SAID DATE AS INTIMATED BY IT IN ITS LETTER DATED 22/12/2009. SINCE THE BUILDER WAS READY TO HANDOVER THE SAID CONSTRUCTION AND THE CONSTRUCTION WORK WAS COMPLETED IN THE F.Y. 2009 - 10 AND WAS READY TO BE TAKEN POSSESSION OF BY THE LAND LORD, CAPITAL GAINS ARISING IF ANY , IN THE HANDS OF THE LANDLORDS WERE ASSESSABLE TO TAX ONLY IN THE ASSESSMENT Y EAR 2010 - 11. ACCORDING TO THE ASSESSING OFFICER, ALTERATIONS/ADDITIONS/ DELETIONS IF ANY , IN KEEPING WITH THE DEVELOPMENT AGREEMENT TO THE EXISTING COMPLETED CONSTRUCTION WERE SUBJECT MATTERS OF APPEAL ETC. AND WERE NOT RELEVANT FOR DETERMINING THE CAPITA L GAINS. 2.4 THE ASSESSING OFFICER OBSERVED THAT THE PROPOSED CONSTRUCTION CONSISTED OF 108,000 SQ. FT. WHICH THE BUILDER AND THE LAND LORD HAD AGREED TO SHARE IN THE RATIO OF 55:45. THE LAND LORDS BELONGED TO TWO FAMILIES VIZ. TELUKUNTA AND DANDOO, EACH HAVIN G EQUAL SHARE OF THE LAND TRANSFERRED. HENCE, OUT OF THE TOTAL BUILT - UP AREA, BOTH TELUKUNTA AND I.T.A. NO. 981 / HYD/201 8 AND OTHERS T. SRINIVASA RAO (HUF) AND OTHERS. 5 DANDOO FAMILIES GOT 50% SHARE EACH I.E. 50% OF 48,600 SQ. FT. WHICH CAME TO 24,300 SQ. FT. EACH. THE ASSESSEE, A MEMBER OF TELUKUN T A GROUP, OWNED 4.16% O F THE LAND LORDS' PORTION. IN VIEW OF THE SAME, SALE CONSIDERATION ATTRIBUTABLE TO ITS SHARE WAS PROPORTIONATELY WORKED OUT BY ADOPTING THE VALUE OF THE COMPLETED CONSTRUCTION AS PER THE SRO RATES. TAKING THE COST PER SQUARE FEET AT RS.2,100/ - AS PER SRO I N THE YEAR 2009, THE ASSESSING OFFICER RECALCULATED THE COST OF CONSTRUCTED AREA AT RS.5,10,30,000/ - (RS.24,300 X 2100). ALTERNATIVELY, HE ALSO TOOK THE CONSIDERATION VALUE OF THE LAND FOREGONE I.E. 55% OF 4534 SQ. YARDS I.E. 2493.7 SQ. YARDS AT RS.11,96,9 7,600/ - BY TAKING THE SRO VALUE OF THE LAND AS ON 2009 AT RS. 48,000 PER SQ. YARD. TELUKUNTA'S FAMILY SHARE BEING 50%, THE CONSIDERATION TO BE CONSIDERED IN THEIR HANDS WAS TAKEN AT RS.5,98,48,800/ - . AS THE AMOUNT OF RS.5.98 CRORES WAS HIGHER THAN COST OF C ONSTRUCTION OF RS. 5.10 CRORE, THE ASSESSING OFFICER CALCULATED THE LONG TERM CAPITAL GAINS BY ADOPTING RS.5.98 CRORE AS FULL VALUE OF CONSIDERATION. AFTER DEDUCTING INDEXED COST OF ACQUISITION OF RS.47,28,055/ - AND COST OF THE STRUCTURE IN THE YEAR 2000 O F RS. 12,00,000/ - AS GIVEN BY THE ASSESSEE (TELUKUNTA'S SHARE 50% OF 12 LAKHS : RS. 6,00,000/ - ) WHICH AFTER INDEXATION CAME TO RS.9,74,808/ - , LONG TERM CAPITAL GAINS WERE TAKEN AT RS.5,41,45,937/ - . AS THE ASSESSEE'S SHARE WAS 20% , LONG TERM CAPITAL GAINS F ALLING TO ITS SHARE WERE COMPUTED AT RS. 1,08,29,187 / - . THE ASSESSEE HAD FILED RETURN OF INCOME OF RS. 1,62,648/ - . AFTER ALLOWING THE BASIC EXEMPTION, THE TOTAL INCOME WAS ASSESSED AT RS. 1,08,31,835 / - . 3. AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREF ERRED AN APPEAL BEFORE THE CIT(A). I.T.A. NO. 981 / HYD/201 8 AND OTHERS T. SRINIVASA RAO (HUF) AND OTHERS. 6 4. THE CIT(A) UPHELD THE VALIDITY OF REOPENING OF ASSESSMENT MADE BY THE AO U/S 147 OF THE ACT AS WELL AS UPHELD THE COMPUTATION OF LONG TERM CAPITAL GAINS DONE BY THE AO. 5. AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US RAISING THE FOLLOWING GROUNDS, WHICH ARE COMMON IN ALL THE APPEALS UNDER CONSIDERATION: 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 (APPEALS) ERRED IN DECIDING THE APPEAL WITHOUT PROVIDING PROPER OPPORTUNITY; PARTICULARLY WHEN THE APPEALS OF THE OTHER CO - OWNERS WERE ALSO PENDING BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). 3) THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN HOLDING THAT THERE WAS ANY TRANSFER OF PROPERTY DURING THE YEAR BY THE APPELLANT IN FAVOUR OF SAPTAGIRI CONSTRUCTIONS WITHOUT CONSIDERING THE FACT THAT NO TRANSFER WAS EFFECTED DURING THE YEAR. 4) THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) OUGHT TO HAVE SEEN THAT THE SALE DEED EXECUTED BY SAPTAGIRI CONSTRUCTIONS WAS A SALE OF THE PROPERTY BY THE SAID CONCERN AS GENERAL POWER OF ATTORNEY ON ITS OWN AND NOT ON BEHALF OF THE APPELLANT. 5) THE LEAR NED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING DETERMINATION OF CAPITAL GAIN AT RS. 1 ,08,29,187 / - WITHOUT CONSIDERING THE FACT THAT THERE WAS NO TRANSFER OF PROPERTY DURING THE YEAR. 6) ANY OTHER GROUND OR GROUNDS THAT MAY BE URGED AT THE TI ME OF HEARING. 6. BEFORE US, T HE LD. AR OF THE ASSESSEE SUBMITTED THAT SIMILAR ISSUE CAME UP FOR CONSIDERATION BEFORE THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF OTHER FAMILY MEMBERS IN ITA NO. 1583/H/17 AND OTHERS FOR AY 2010 - 11, VIDE CONSOLID ATED ORDER DATED 25/05/2018, A COPY OF THE SAME IS ON I.T.A. NO. 981 / HYD/201 8 AND OTHERS T. SRINIVASA RAO (HUF) AND OTHERS. 7 RECORD. HE SUBMITTED THAT THE DECISION IN THE SAID ORDER MAY BE FOLLOWED IN THESE CASES ALSO. 7. ON THE OTHER HAND, LD. DR RELIED ON THE ORDERS OF REVENUE AUTHORITIES. 8. CONSIDERED THE RIVAL SUBMIS SIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE ISSUE IN DISPUTE IS SQUARELY COVERED BY THE DECISION OF THE COORDINATE BENCH IN THE OTHER FAMILY MEMBERS CASE (SUPRA) WHEREIN THE COORDINATE BENCH HAS HELD AS UNDER: 8. CONSIDERED THE RIVAL SUBMI SSIONS AND PERUSED THE MATERIAL ON RECORD . WE NOTICE THAT THE ASSESSMENT WAS REOPENED BY ISSUE OF NOTICE U/S 148 ON 29/03/2016 AND THE REASON FOR REOPENING WAS SUBMITTED BY AO VIDE LETTER DATED 20/06/2016 (WE NOTICE THAT THE ASSESSEE LETTER REFERENCE WAS M ENTIONED AS 18/04/2014, WHEREAS THE ACTUAL LETTER REFERENCE WAS 18/04/2016), THERE IS A TYPOGRAPHICAL MISTAKE COMMITTED BY AO). THE REASONS RECORDED BY AO TO REOPEN THE ASSESSMENT WAS AS UNDER: ON VERIFICATION OF THE LETTER OF THE DEVELOPER M/S SAPTAGI RI CONSTRUCTIONS LETTER DT: 22.12.2009 IT IS NOTICED THAT THE BUILDER WAS READY TO HANDOVER THE POSSESSION OF CONSTRUCTION SPACE TO THE LAND LORDS IN THE FY 2009 - 10 RELEVANT TO THE AY 2010 - 11. THEREFORE THERE WAS SIMULTANEOUS TRANSFER OF POSSESSION OF 55% OF LAND BY THE ASSESSEE TO THE BUILDER AND POSSESSION OF 45% OF BUILT - UP ARE BY THE BUILDER TO THE ASSESSEE IN FY 2009 - 10 IN TERMS OF SECTION 2(47) OF THE INCOME TAX ACT, 1961 READ WITH SECTION 53A OF THE TRANSFER OF PROPERTY ACT. ON VERIFICATION, IT IS NO TICED THAT THE ASSESSEE HAS NOT FILED HIS ROI FOR THE A. Y 2009 - 10. IN THE VIEW OF THE ABOVE, THE INCOME UNDER THE HEAD CAPITAL GAINS CHARGEABLE TO TAX ON ACCOUNT OF TRANSFER OF THE SAID LAND HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SEC.147 OF THE INCO ME TAX ACT, 1961'. IT IS CLEAR THAT THE MAIN REASON FOR REOPENING/INITIATING THE PROCEEDINGS ARE THE LETTER OF THE BUILDER, IN WHICH, IT IS STATED THAT THE BUILDINGS ARE READY FOR OCCUPATION AS PER THE JOINT DEVELOPMENT AGREEMENT (JDA). IT WAS ALSO BROUGHT TO THE NOTICE IN T HE INITIAL STATE ITSELF THAT THE I.T.A. NO. 981 / HYD/201 8 AND OTHERS T. SRINIVASA RAO (HUF) AND OTHERS. 8 BUILDING CONSTRUCTED BY THE DEVELOPER ARE NOT AS PER THE NORMS AGREED AND SUBSEQUENTLY SUBJECT TO LITIGATION. THE FINAL ORDER OF THE ARBITRAL AWARD WAS ALSO SUBMITTED BEFORE THE AO. IT CLEARLY SHOWS THAT THE BUILDING CONSTR UCTED BY THE DEVELOPER IS NOT AS PER APPROVAL AND THE SAME WAS NOT ACCEPTED BY THE ASSESSEE NOR POSSESSION WAS TAKEN. 8.1 BEFORE US, THE QUESTION RAISED IS, IN THE CASE OF JDA TRANSACTION, AT WHAT POINT OF TIME, CAPITAL GAIN ARISES. IT IS SETTLED LAW T HAT IN THE YEAR IN WHICH THE POSSESSION OF THE PROPERTY IS PASSED ON TO THE DEVELOPER IS THE YEAR IN WHICH THE PROVISION OF CAPITAL GAINS GET ATTRACT ED . IN THE CASE OF POTLA NAGESWARA RAO (SUPRA) THE HONBLE AP HIGH COURT HELD AS UNDER: THE ELEMENT OF FA CTUAL POSSESSION AND AGREEMENT ARE CONTEMPLATED AS TRANSFER WITHIN THE MEANING OF THE AFORESAID SECTION. WHEN THE TRANSFER IS COMPLETE, AUTOMATICALLY, CONSIDERATION MENTIONED IN THE AGREEMENT FOR SALE HAS TO BE TAKEN INTO CONSIDERATION FOR THE PURPOSE OF A SSESSMENT OF INCOME FOR THE ASSESSMENT YEAR WHEN THE AGREEMENT WAS ENTERED INTO AND POSSESSION WAS GIVEN. HERE, FACTUALLY IT WAS FOUND THAT BOTH THE AFORESAID ASPECTS TOOK PLACE IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2003 - 04. FROM THE ABOVE DECISION, WHEN THE TRANSFER IS COMPLETE, AUTOMATICALLY, CONSIDERATION MENTIONED IN THE AGREEMENT FOR SALE HAS TO BE TAKEN INTO CONSIDERATION FOR THE PURPOSE OF ASSESSMENT OF INCOME FOR THE AY WHEN THE AGREEMENT WAS ENTERED INTO AND POSSESSION WAS GIVEN. T HEREFORE, IN THE GIVEN CASE, THE ASSESSEE HAS ENTERED INTO JDA IN THE YEAR 10/01/2000 AND POSSESSION WAS HANDED OVER FOR DEVELOPMENT. BUT DUE TO OCCUPATION OF THE PROPERTY BY THE TENANTS, THE DEVELOPER WAS ABLE TO VACATE THE TENENTS ONLY IN THE YEAR 2003 . HENCE, IT CAN BE CONSTRUED THAT THE ACTUAL VACANT POSSESSION WAS HANDED OVER TO THE DEVELOPER ONLY IN 2003. THEREFORE, THE ACTUAL TRANSFER TOOK PLACE IN THE YEAR 2003. THE PROVISIONS OF CAPITAL GAINS ARE ATTRACTED IN THE YEAR 2003. HENCE, THE STAND OF TH E AO TO CHARGE THE CAPITAL GAINS IN THE YEAR 2010 - 11 IS NOT PROPER. SECONDLY, THE REASON FOR BRINGING TO TAX IN THE YEAR 2010 - 11 WAS THE LETTER OF THE DEVELOPER TO ANNOUNCE THAT THE BUILDING IS READY FOR OCCUPATION WITHOUT COMPLYING TO THE JDA AND APPROV AL NORMS. EVEN THOUGH THE SAME WAS BROUGHT TO THE NOTICE OF THE AO, ACCORDING TO US, THE REASON FOR REOPENING THE ASSESSMENT IS ON FAULTY GROUND. I.T.A. NO. 981 / HYD/201 8 AND OTHERS T. SRINIVASA RAO (HUF) AND OTHERS. 9 8.2 IN OUR CONSIDERED VIEW, THE INCOME CHARGEABLE TO TAX FALLS ONLY IN THE AY 2003 - 04 AND NOT IN AY 2010 - 11. THEREFORE, THE ASSESSMENT COMPLETED U/S 144 R.W.S. 147 IS HELD TO BE NOT IN ACCORDANCE WITH LAW, HENCE, THE SAME IS QUASHED. 8.3 SINCE, THE ASSESSMENT ITSELF IS QUASHED, THE OTHER GROUNDS RAISED BY THE ASSESSEE ARE NOT REQUIRED TO BE ADJUDICATED AT THIS STAGE . THEREFORE, THE GROUND RAISED BY THE ASSESSEE IN THIS REGARD IS ALLOWED. AS THE ISSUE IN DISPUTE IS MATERIALLY IDENTICAL TO THAT OF THE SAID CASES, FOLLOWING THE DECISION DRAWN THEREIN, WE SET ASIDE THE ORDER OF CIT(A) AND ALLOW THE GROUNDS RAISED BY THE ASSESSEE. 8.1 AS THE FACTS AND GROUNDS RAISED IN ALL OTHER APPEALS ARE IDENTICAL TO THAT OF ITA NO. 981 /HYD/201 8 IN THE CASE OF T. SRINIVASA RAO (HUF), FOLLOWING THE CONCLUSIONS DRAWN THEREIN WE ALL OW THE GROUNDS RAISED IN THESE APPEALS AS WELL. 9. IN THE RESULT, ALL THE APPEALS UNDER CONSIDERATION, ARE ALLOWED. PRONOUNCED IN THE OPEN COURT ON 10 TH OCTOBER , 2018. SD/ - ( P. MADHAVI DEVI ) JUDICIAL MEMBER SD/ - ( S. RIFAUR RAHMAN ) ACCOUNTANT MEMBER HYDERABAD, DATED 10 TH OCTOBER , 2018 KV DESCRIPTION DATE INTLS I.T.A. NO. 981 / HYD/201 8 AND OTHERS T. SRINIVASA RAO (HUF) AND OTHERS. 10 S.NO. 1. DRAFT DICTATED ON SR.P.S./P.S 2. DRAFT PLACED BEFORE AUTHOR SR.P.S/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.P.S./PS SR.P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON SR. P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S 8 . DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 . DATE OF DISPATCH OF ORDER COPY FORWARDED TO: 1 SHRI T. SRINIVASA RAO (HUF), FLAT NO. GF - 3, KASI MANJEERA NEST, ROAD NO. 2, WEST MARREDPALLY, SECBAD. 2 SHRI T. SHYAM RAO (HUF), PLOT NO. 72, LAXMI ENCLAVE, NEAR SV SANJEEV REDDY FUNCTION HALL, RAILWAY STATION, SECBAD. 3 SHRI T. AMARNATH (HUF), FLAT NO. 51M DR, SUBBARAO COLONY, PICKET, SECBAD. 4 SHRI T. SHIVA KUMAR (HUF), PLOT NO. 18, RADHIKA COLONY, WEST MARREDPALLY, HYDERABAD 500 026. 5 ITO, WARD 10(5), IT TOWERS, AC GUARDS, HYDERABAD 6 CIT(A) - 6, HYDERABAD 7 PR. CIT - 6, HYDERABAD 8 THE DR, ITAT, HYDERABAD 9 GUARD FILE