Moiz Ahmed Mohammed, Hyderabad V. Income Tax Officer, Ward-5(3), Hyderabad

ITA 1341/Hyd/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 8771 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 27-08-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital Gains
• Section: 143(3); 50C; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B - SMC, HYDERABAD (THROUGH VIRTUAL HEARING) BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NO.1341/HYD/2019 ASSESSMENT YEAR: 2011 - 12 MOIZ AHMED MOHAMMED, HYDERABAD. PAN: ACIPM 0942 K VS. INCOME TAX OFFICER, WARD - 5(3), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI MOHD. AFZAL REVENUE BY: SHRI ROHIT MUJUMDAR, DR DATE OF HEARING: 15/12/2020 DATE OF PRONOUNCEMENT: 04 /01/2021 ORDER PER A. MOHAN ALANKAMONY, AM.: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT (A) - 4, HYDERABAD IN APPEAL NO. 10320/18 - 19/ITO,W - 5(3)/CIT(A) - 4/HYD/19 - 20, DATED 27/06/2019 PASSED U/S. 143(3) R.W.S 147 AND U/S. 250(6) OF THE ACT FOR THE AY: 2011 - 12. 2. THE ASSESSEE HAS RAISED SEVEN GROUNDS IN HIS APPEAL AND THEY ARE EXTRACTED HEREIN BELOW FOR REFERENCE: - 1. THE ORDER OF THE LD. CIT (A) IS AGAINST THE LAW, WEIGHT OF EVIDENCE AND PROBABILITIES OF CASE. 2. THE LD. COMMISSIONER ERRED IN CONFIRMING AN ADDITION OF RS. 1,14,737/ - . 2 3. THE LD. COMMISSIONER ERRED IN CONFIRMING THE ORDER OF THE AO WHEREIN THE PROPERTY SOLD ADMEASURING 133 SQ YDS FOR RS. 4,00,000/ - WAS TAKEN AT RS. 20,32,500/ - BY APPLYING THE PROVISIONS OF SECTION 50C OF THE IT A CT AND FURTHER ERRED IN CONFIRMING THE BUSINESS TRANSACTION AS CAPITAL GAINS. 4. WITHOUT PREJUDICE TO THE GROUND NO.3 THE LD. COMMISSIONER ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER WHEREIN, BUSINESS TRANSACTION WAS CONSIDERED AS CAPITAL GAINS AND FURTHER ERRED IN NOT DIRECTING THE ASSESSING OFFICER TO REFER THE SAME FOR VALUATION AS THE SUBJECT PROPERTY IS EMBEDDED WITH LITIGATIONS. 5. THE LD. COMMISSIONER ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER WHEREIN, TURNOVER FROM BUSINESS IS TAKEN AT RS. 67,10,000/ - AS AGAINST THE TURNOVER OF RS. 52,75,786/ - ADMITTED BY THE ASSESSEE ON RECEIPT BASIS AND FURTHER ERRED IN CONFIRMING AN ADDITION OF RS. 1,14,737/. 6. THE LD. COMMISSIONER ERRED IN CONFIRMING AN ADDITION OF RS. 18,41,517/ - UNDER TH E PROVISIONS OF SECTION 50C, WHEREAS, THE SUBJECT SALE WAS IN THE NATURE OF BUSINESS TRANSACTION FOR WHICH THE PROVISIONS OF SECTION 50C ARE NOT APPLICABLE. 7. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR MODIFY THE ABOVE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPEAL, IF IT IS CONSIDERED NECESSARY. 3. AT THE OUTSET, THE LD. AR SUBMITTED BEFORE ME THAT THE LD. CIT (A) HAS PASSED EX - PARTE ORDER WITHOUT PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. IT WAS THEREFORE PLEADED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE LD . CIT (A) IN ORDER TO PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD . LD. DR, ON THE OTHER HAND, VEHEMENTLY OPPOSED TO THE SUBMISSIONS OF THE LD. AR AND ARGUED THAT PROPER OPPOR TUNITIES HAD BEEN PROVIDED TO THE ASSESSEE HOWEVER, ON THE GIVEN DATES OF HEARING, NEITHER THE ASSESSEE NOR HI S REPRESENTATIVE APPEARED BEFORE THE LD. CIT (A). IT WAS FURTHER SUBMITTED THAT THE LD. CIT (A) HAD NO OTHER OPTION BUT TO PASS EX - PARTE ORDER BA SED ON THE MATERIALS AVAILABLE ON RECORD. HENCE, IT WAS PLEADED THAT THE ORDER PASSED BY THE LD. CIT(A) DOES NOT CALL FOR ANY INTERFERENCE. 3 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. ON EXAMINING THE FACTS OF THE CASE, I FIND MERIT IN THE SUBMISSIONS OF THE LD. DR. THE LD. CIT (A) HAD POSTED THE CASE ON SEVERAL OCCASIONS. HOWEVER, IT APPEARS THAT NEITHE R THE ASSESSEE NOR HIS COUNSEL PROPERLY CO - OPERATED BEFORE THE CIT(A) AT THE TIME OF HEARING. THEREFORE, THE LD. CIT (A) WAS LEFT WITH NO OTHER OPTION EXCEPT TO ADJUDICATE THE APPEAL EX - PARTE BASED ON THE MATERIAL AVAILABLE ON RECORD. HOWEVER, CONSIDERING THE PRAYER OF THE LD. AR, AND IN THE INTEREST OF JUSTICE, I HEREBY REMIT THE MATTER BACK TO THE FILE OF LD. CIT (A) IN ORDER TO CONSIDER THE APPEAL AFRESH ON MERITS BY PROVIDING ONE MORE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. AT THE SAME BREATH, I AL SO HEREBY CAUTION THE ASSESSEE TO PROMPTLY CO - OPERATE BEFORE THE LD. CIT (A) IN THE PROCEEDINGS FAILING WHICH THE LD. CIT (A) SHALL BE AT LIBERTY TO PASS APPROPRIATE ORDER IN ACCORDANCE WITH LAW AND MERITS BASED ON THE MATERIALS ON THE RECORD. IT IS ORDER ED ACCORDINGLY. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED HEREINABOVE. PRONOUNCED IN THE OPEN COURT ON 04 TH JANUARY, 2021. SD/ - ( A. MOHAN ALANKAMONY ) ACCOUNTANT MEMBER HYDERABAD, DATED: 04 TH JANUARY, 2021. 4 OKK COPY TO: - 1) MOIZ AHMED MOHAMMED C/O. MOHD AFZAL, ADVOCATE 402, SHERSONS RESIDENCY, 11 - 5 - 465, CRIMINAL COURT ROAD, RED HILLS, HYDERABAD 500 004. 2) INCOME TAX OFFICER, WARD - 5(3), IT TOWERS, HYDERABAD. 3) THE CIT (A) - 4, HYDERABAD. 4) THE PRINCIPAL COMMISSIONER OF INCOME TAX - 4, HYDERABAD. 5) THE DR, ITAT, HYDERABAD 6) GUARD FILE