Koppula Pratap Reddy, Hyd, Hyderabad V. DCIT, Cir -4(1), Hyderabad

ITA 1313/HYD/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53761 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 12-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PHANI RAJU
• Assessee Lawyers: S RAMA RAO
• Keywords: Opportunity of being heard
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI CHANDRA POOJARI, A.M AND SMT. ASHA VIJAYARAGHAVAN,J.M ITA NO.1313/HYD/2011 ASSESSMENT YEAR 2007-08 KOPPULA PRATHAP REDDY, HYDERABAD. ( PAN ADOPK 7092D) VS DY. CIT, CIR - 4(1), HYDERABAD. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.RAMA RAO RESPONDENT BY : SHRI PHANI RAJU DATE OF HEARING: 3-11-2011. DATE OF PRONOUNCEMENT: 3-11-2011. O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF THE CIT (A)-V, HYDERABAD DATED 29-4-2011 AND IT PERTAINS TO THE ASSESSMENT YEAR 2007-08. 2. THE ASSESSEE RAISED THE FOLLOWING GROUNDS BEFOR E US:- I. THE ORDER OF THE LEARNED CIT (A) IS ERRONEOUS I N OBSERVING THAT NO FURTHER ARGUMENTS WERE PLACED BEFORE HIM. THE CIT (A) OUGHT TO HAVE SEEN THAT THE APPELLANT FILED WRI TTEN ITA NO.1313/HYD/2011- KOPPULA PRATAP REDDY, HYD. L.L ========================== 2 SUBMISSIONS AND THE APPELLANT WAS INFORMED THAT THE SAID WRITTEN SUBMISSIONS WERE FORWARDED TO THE ASSESSING OFFICER FOR A REMAND REPORT. THE CIT (A), OUGHT TO HAVE CO NSIDERED THE FACT THAT THE WORKING MADE BY THE APPELLANT IN THE WRITTEN SUBMISSIONS IS ACCEPTED BY THE ASSESSING OF FICER FOR THE ASSESSMENT YEAR 2006-07 AND THE ASSESSING OFFIC ER PASSED AN ORDER UNDER SEC. 143(3). II. THE LD. CIT (A) ERRED IN CONFIRMING THE COMPUTA TION OF CAPITAL GAIN MADE BY THE ASSESSING OFFICER, WITHOUT CONSIDERING THE SUBMISSIONS MADE BY THE APPELLANT H EREIN, IN SPITE OF THE FACT THAT THE SAID COMPUTATION WAS ACCEPTED BY THE ASSESSING OFFICER FOR THE ASSESSMENT YEAR 20 06-07, WHILE PASSING AN ORDER UNDER SEC. 147 ON 31-10-2010 . III. THE LD. CIT (A) OUGHT TO HAVE CONSIDERED THE FACT THAT THE APPEAL RELATES TO CAPITAL ARISES IN TWO STAGES; (II ) THE FIRST STAGE OF CAPITAL GAIN ARISES ON THE DATE OF ENTERIN G INTO DEVELOPMENT AGREEMENT OR THE DATE ON WHICH THE FLAT S WERE HANDED OVER TO THE APPELLANT; (III) THE SECOND STAG E OF CAPITAL GAIN ARISES ON SALE OF THE ALLOTTED FLATS. THE CIT (A() OUGHT TO HAVE CONSIDERED ALL THE ISSUES RAISED IN T HE WRITTEN SUBMISSIONS BEFORE DISPOSING OF THE APPEAL. IV. THE LD. CIT (A) OUGHT TO HAVE CONSIDERED THE FA CT THAT NO CAPITAL GAIN ARISES ON ENTERING INTO DEVELOPMENT AG REEMENT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION AND THA T THE ONLY CAPITAL GAIN ARISES IS LONG TERM CAPITAL GAIN AND SHORT TERM CAPITAL ON SALE OF CONSTRUCTED AREA ALONG WITH THE LAND APPURTENANT THERETO. ITA NO.1313/HYD/2011- KOPPULA PRATAP REDDY, HYD. L.L ========================== 3 V. THE LD. CIT (A) ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER IN DETERMINING THE CAPITAL GAIN A T RS.88,36,705 AS AGAINST THE LONG TERM APITAL GAIN O F RS.43,21,500/- AND SHORT TERM CAPITAL GAIN OF RS.1, 73,723. V1. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF HEARING. HOWEVER, AT THE TIME OF HEARING OF THIS APPEAL, IT IS SUBMITTED THAT THE CIT (A) PASSED EX PARTE ORDER WITHOUT CONSIDERING T HE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE AS THE CIT (A) DI D NOT RECEIVE THE REMAND REPORT FROM THE ASSESSING OFFICER. THERE IS NO FAULT ON THE PART OF THE ASSESSEE IF THE ASSESSING OFFICER HAS NOT SUBMI TTED A REMAND REPORT BEFORE THE CIT (A) ON THE BASIS OF WRITTEN SUBMISSI ONS MADE BY THE ASSESSEE. 3. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPR ESENTATIVE RELIED ON THE ORDERS OF THE AUTHORITIES. 4. WE HAVE HEARD THE SUBMISSIONS OF THE RIVAL PARTI ES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE CIT (A) VIDE HIS ORDER DATED 5-1-2011 CALLED FOR THE COMMENTS OF THE ASSES SING OFFICER AGAINST THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE. HO WEVER, THE ASSESSING OFFICER HAS NOT SUBMITTED HIS COMMENTS/ REMAND REPO RT BEFORE THE CIT (A) BEFORE PASSING THE IMPUGNED ORDER. HOWEVER, TH E CIT (A) NOT CONSIDERED THE WRITTEN SUBMISSIONS AND HE DEALT WIT H THE ISSUES ON THE BASIS OF MATERIAL ON RECORD WITHOUT CONSIDERING THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE. IN OUR CONSIDERED OPINION, T HE ACTION OF THE CIT (A) IS NOT JUSTIFIED. AFTER CONSIDERING THE TOTALI TY OF FACTS OF THE CASE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ENTIRE MA TTER TO THE FILE OF THE CIT (A) FOR FRESH CONSIDERATION IN ACCORDANCE WITH LAW AND DIRECT HIM TO ITA NO.1313/HYD/2011- KOPPULA PRATAP REDDY, HYD. L.L ========================== 4 AFFORD AN OPPORTUNITY OF BEING HEARD TO THE ASSESSE E AND PASS AN APPROPRIATE ORDER AFTER DULY CALLING UPON THE REMAN D REPORT FROM THE ASSESSING OFFICER AGAINST THE WRITTEN SUBMISSIONS F ILED BY THE ASSESSEE. SINCE WE ARE REMITTING THE MATTER BACK TO THE FILE OF THE CIT (A) FOR FRESH CONSIDERATION, WE REFRAIN TO DEAL WITH THE ME RITS OF THE CASE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 3-11-2011 SD/- SD/- (SMT. ASHA VIJAYARAGHAVAN) (CHANDRA POOJARI) JUDICIAL MEMBER. ACCOUNTANT MEMBER. DT/- 3-11-2011. COPY FORWARDED TO: 1. SHRI S. RAMA RAO, ADVOCATE, FLAT NO.102, DOOR NO.3 - 6 - 643, SHRIYAS ELEGANCE STREET NO.9, HIMAYATNAGAR, HYDERA BAD. 2. DY. CIT, CIR - 4(1), HYDERABAD. 3. CIT(A) - V, HYDERABAD. 4. CIT, AP, HYDERABAD. 5. THE D.R., ITAT, HYDERABAD. JMR*