S.Q.Nasreen Quadri, Secunderabad V. Income Tax Officer, Ward-13(3), Hyderabad

ITA 129/Hyd/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 3831 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-08-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 13-08-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 12-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MOHAN REDDY
• Assessee Lawyers: S RAMA RAO
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES SMC, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER I.T.A. NO. 129/HYD/2018 ASSESSMENT YEAR: 2008-09 S.Q.NASREEN QUADRI, SECUNDERABAD [PAN: AAAPQ8302K] VS INCOME TAX OFFICER, WARD-13(3), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI S. RAMA RAO, AR FOR REVENUE : SHRI MOHAN REDDY, DR DATE OF HEARING : 13-08-2019 DATE OF PRONOUNCEMENT : 16-08-2019 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINS T THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)4, HYDERABAD, DATED 28-11-2017 FOR THE AY.2008-09. 2. BRIEF FACTS OF THE CASE ARE THAT, ASSESSEE, AN INDI VIDUAL, ALONG WITH 25 OTHERS, SOLD LANDED PROPERTY IN SURVEY NOS.102 TO 109, 120 TO 123, 126 TO 142, 144 TO 154 AND 161 VID E DOCUMENT NO.9843/07, DT.10-09-2007 CONSISTING OF ACRES 74.20 EQUIVALENT TO 2968 GUNTAS SITUATED AT THIMMAPUR VILLAGE, HANAMKONDA REVENUE MANDAL AND SURVEY NOS.2 81 AND 282 OF URSU VILLAGE OF WARANGAL (RM) FOR A CONS IDERATION OF RS.1,11,30,000/-, WHEREAS THE PROPERTY WAS VALUED BY THE SUB-REGISTRAR AT RS.1,25,88,825/- ON WHICH STAMP DUTY AND REGISTRATION CHARGES WERE PAID. THE ASSESSING OFFICER (AO) ITA NO. 129/HYD/2018 :- 2 -: THEREFORE ISSUED A NOTICE U/S.148 OF THE INCOME TAX A CT [ACT] TO THE ASSESSEE ON 16-03-2015 TO BRING THE CAPITAL GAIN S TO TAX. HE ADOPTED THE VALUE U/S.50C OF THE ACT AND OBSERVED TH AT ASSESSEE IS ELIGIBLE FOR 1/26 TH SHARE OF THE SALE CONSIDERATION. ASSESSEE CLAIMED THAT AS PER THE ISLAMIC SHARIA (MUSLI M PERSONAL LAW), HER SHARE OF ELIGIBILITY IS @ 0.7378 %, WHICH WORKS OUT TO RS.46,291/- AND FILED THE COPY OF THE CERTI FICATE ISSUED BY GOVERNMENT QAZI OF WARANGAL DISTRICT IN SUPP ORT OF HER CONTENTION. AO, HOWEVER, DID NOT ACCEPT THE ASSESSEE S CONTENTION AND TREATED THE 1/26 TH OF THE CONSIDERATION AS ASSESSEES SHARE, I.E., RS.3,14,360/-. THEREAFTER, HE PROCEEDED TO CONSIDER ASSESSEES CLAIM OF EXEMPTION U/S.54F OF THE ACT. ASSESSEE HAD CLAIMED THAT THE SAID AMOUNT WAS USED FOR CONSTRUCTION OF RESIDENTIAL HOUSE DURING THE PERIOD I.E ., FINANCIAL YEARS 2008-09 TO 2010-11. THE AO, HOWEVER , OBSERVED THAT THE ASSESSEE HAS NOT FURNISHED ANY PROOF THAT THE CONSIDERATION/CAPITAL GAINS HAS BEEN DEPOSITED IN A NY BANK/INSTITUTION. HE THEREFORE DISALLOWED THE CLAIM OF EXEMPTION U/S.54F OF THE ACT. 2.1. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEF ORE THE CIT(A), WO CONFIRMED THE ASSESSEES SHARE TO BE 1/26 TH OF THE TOTAL CONSIDERATION RECEIVED. HOWEVER, SHE DIRECTED THE AO TO VERIFY THE ASSESSEES CLAIM OF EXEMPTION U/S.54F OF T HE ACT. THUS, THE APPEAL WAS PARTLY ALLOWED. AGAINST THE SAID ORDER OF CIT(A), THE ASSESSEE IS IN SECOND APPEAL BEFORE THE I TAT, RAISING THE FOLLOWING GROUNDS: ITA NO. 129/HYD/2018 :- 3 -: 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME -TAX (APPEALS) IS ERRONEOUS TO THE EXTENT IT IS PREJUDICIAL TO THE AP PELLANT. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICE IN HO LDING THAT THE SHARE OF THE APPELLANT IN THE ANCESTRAL PROPERTY INHERITE D BY HER IS 1/26 TH OF 1,25,88,825 AND THE AMOUNT OF CAPITAL GAIN WORKED O UT BY THE ASSESSING OFFICER IS IN ORDER. 3. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN A PPLYING THE PROVISIONS OF SEC.50C OF THE I.T.ACT. 4. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) OUGHT TO HAVE OBSERVED THAT THE APPELLANT IS GOVERNED BY MUSLIM P ERSONAL LAW AND SHE IS ENTITLED FOR 0.7378% SHARE IN THE PROPERTY. 5. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME O F HEARING. 3. AT THE OUTSET, THE LD.COUNSEL FOR THE ASSESSEE HAS DR AWN MY ATTENTION TO THE FAMILY TREE AT PGS.3 TO 6 OF THE PAPE R BOOK, FILED BY THE ASSESSEE, ACCORDING TO WHICH, THE A SSESSEE IS THE GRAND-DAUGHTER OF THE ORIGINAL OWNER I.E., SHRI S YED MOHIUDDIN PASHA QUADRI, WHOSE LAND WAS SOLD. HE THER EFORE SUBMITTED THAT AS PER THE MUSLIM PERSONAL LAW, LADIES GE T ONLY HALF OF THE SHARE WHICH A MALE SHAREHOLDER WOULD GET AND THEREFORE, THE ASSESSEES SHARE HAS TO BE CALCULATED AS PER THE MUSLIM PERSONAL LAW AND SUBMITTED THAT BOTH THE AO AS W ELL AS THE CIT(A) HAVE FAILED TO CONSIDER THIS FACT. 4. LD.DR, HOWEVER, SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 5. HAVING REGARD TO THE RIVAL CONTENTIONS AND MATERIAL ON RECORD, I AGREE WITH THE CONTENTION OF LD.COUNSEL FOR TH E ITA NO. 129/HYD/2018 :- 4 -: ASSESSEE THAT AS FAR AS THE ASSESSEES SHARE IN THE PR OPERTY IS CONCERNED, IT IS TO BE ARRIVED AT AS PER THE MUSLIM PER SONAL LAW. ASSESSEE IS THE GRAND-DAUGHTER OF THE ORIGINAL O WNER OF THE LAND AND THEREFORE, HER SHARE AS PER THE MUSLIM P ERSONAL LAW ALONE HAS TO BE TAKEN INTO CONSIDERATION. ASSESSEE HAS FILED THE CERTIFICATE ISSUED BY GOVERNMENT QAZI OF WARA NGAL DISTRICT AND THE SAME SHOULD BE CONSIDERED FOR COMPUTATI ON OF SHARE OF THE ASSESSEE. I DIRECT THE AO ACCORDINGLY. L D.COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSEE DOES NOT HAVE A NY OBJECTION TO APPLICATION OF PROVISIONS OF SECTION 50C O F THE ACT IS CONSIDERED. THEREFORE, THE GROUND ON THIS ISSUE I.E., GROUND NO.3, IS REJECTED, AS NOT PRESSED. ACCORDINGLY, THE APPEAL OF ASSESSEE IS TREATED AS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH AUGUST, 2019 SD/- (P. MADHAVI DEVI) JUDICIAL MEMBER HYDERABAD, DATED 16 TH AUGUST, 2019 TNMM ITA NO. 129/HYD/2018 :- 5 -: COPY TO : 1. S.Q.NASREEN QUADRI, PLOT NO.39, MANOVIKAS NAGAR, OPP: NIHM, BOWENPALLY, SECUNDERABAD. 2. INCOME TAX OFFICER, WARD-13(3), HYDERABAD. 3. CIT(APPEALS)-4, HYDERABAD. 4. PR.CIT-4, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.