S Harinath Chowdhary , Hyderabad V. Income Tax Officer, Ward-6(2), Hyderabad

ITA 1356/Hyd/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 0146 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Assessment Year: 2006-2007
• Appeal Filed On: 28-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P MURALI MOHANA RAO
• Keywords: Cost of acquisition
• Section: 271(1)(c); 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER I.T.A. NO. 1356/HYD/2018 ASSESSMENT YEAR: 2006-07 S.HARINATH CHOWDHARY, HYDERABAD [PAN: AGQPS1831H] VS INCOME TAX OFFICER, WARD-6(2), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI P.MURALI MOHANA RAO, AR FOR REVENUE : SHRI ROHIT MUJUMDAR, DR DATE OF HEARING : 15-02-2021 DATE OF PRONOUNCEMENT : 15-03-2021 O R D E R PER S.S.GODARA, J.M. : THIS ASSESSEES APPEAL FOR AY.2006-07 ARISES FROM TH E CIT(A)-6, HYDERABADS ORDER DATED 20-02-2018 PASSED IN APPEAL NO.0110/2016-17/A3/CIT(A)-6 IN PROCEEDINGS U /S. 143(3) R.W.S.147 OF THE INCOME TAX ACT, 1961 [IN SHOR T, THE ACT]. HEARD BOTH THE PARTIES AND CASE FILE PERUSED. 2. THE ASSESSEE HAS RAISED THE FOLLOWING SUBSTANTIVE GROUNDS IN THE INSTANT APPEAL: 1.THE LD.CIT (A) IS ERRONEOUS BOTH ON FACTS AND LA W AND IT IS PREJUDICIAL TO THE INTEREST OF THE ASSESSEE. 2.THE LD.CIT (A) ERRED IN DISMISSING THE APPEAL. ITA NO. 1356/HYD/2018 :- 2 -: 3.THE LD.CIT (A) OUGHT TO HAVE APPRECIATED THAT AO ERRED IN RE- OPENING THE CASE U/S 147 WITHOUT MAKING ANY ASSESSM ENT U/S 143 OF THE ACT FOR THE AY 2006-07. 4.THE LD.CIT(A) ERRED IN UPHOLDING THE ADDITION MAD E BY THE AO IN THE ASSESSMENT U/S.143(3) R.W.S 147 DT. 24.12.2010 WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES. 5.THE LD.CIT (A) OUGHT TO HAVE APPRECIATED THE FACT THAT THE ENTIRE WORK OF ROCK BREAKING AND CONSTRUCTION OF RCC COMPO UND. AND RETAINING WALL WAS GIVEN ON CONTRACT BASIS AS THE P ERMISSION FOR BLASTING IS NOT ACCORDED FOR ROCK BREAKING IN THE R ESIDENTIAL AREAS. 6.THE LD.CIT(A) ERRED IN NOT CONSIDERING THE ASSESS EE'S EXPLANATION AS TO THE WORK CARRIED ON MANUALLY OVER THE PERIOD OF 4 MONTHS STARTING FROM APRIL 2003 TO JULY 2003 AND COPIES OF BILLS RAISED CANNOT BE QUESTIONED ABOUT THE FORM OF BILL I.E., C OMPUTER PRINT OR HAND WRITTEN OR TYPED ETC. 7.THE LD.CIT(A) HAS ERRED IN UPHOLDING THE ASSESSME NT ORDER ON THE BASIS OF THIRD PARTY SWORN STATEMENT WHICH WAS WRON GLY RELIED BY AO. 8.THE LD.CIT(A) OUGHT TO HAVE APPRECIATED AO ERRED IN CALCULATING THE COST OF ACQUISITION FOR PURPOSE OF COMPUTING CAPITA L GAIN WITHOUT CONSIDERING THE ADDITIONAL EXPENDITURE INCURRED TOW ARDS ROCK BREAKING INCLUDING LEVELLING AND COMPOUND WALL CONS TRUCTION. 9.THE LD.CIT (A) OUGHT TO HAVE APPRECIATED THAT THE LAND GIVEN TO THE DEVELOPER IS FOR THE DEVELOPMENT ON THE ROCK BREAKI NG EXPENDITURE WHICH ALREADY INCURRED BEFORE TRANSFERRING THE PROP ERTY THROUGH DEVELOPMENT AGREEMENT. 10.THE LD.CIT(A) OUGHT TO HAVE APPRECIATED AO ERRED IN PASSING PENALTY U/S 271(1)(C) OF THE ACT AS THE ASSESSEE HA S NOT CONCEALED ANY INCOME DURING THE FILLING WHICH IS TO BE CONSID ERED. 11.THE APPELLANT MAY ADD OR ALTER OR AMEND. MODIFY OR SUBSTITUTE OR DELETE AND OR RESCIND ALL OR ANY OF THE GROUNDS OF APPEAL AT ANY TIME OF BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 3. IT TRANSPIRES AT THE OUTSET WITH THE ABLE ASSISTANCE O F BOTH THE PARTIES THAT THE ASSESSING OFFICER HAD TAKEN RECO URSE TO SECTION 148/147 MECHANISM WHICH FINALLY CULMINATED IN HIS ASSESSMENT/RE-ASSESSMENT DT.31-03-2014 MAKING PROTECTIVE ADDITION OF RS.35,83,738/-. WE FIND IN THIS CLINCHING FACTUAL ITA NO. 1356/HYD/2018 :- 3 -: BACKDROP THAT THE TRIBUNALS CO-ORDINATE BENCHS ORDER IN ASSESSEES CASE ITSELF FOR AY.2007-08 INVOLVING ITA NO.719/HYD/2019, DECIDED ON 01-05-2020 HOLDS THAT SUC H A RE-OPENING MAKING PROTECTIVE ADDITION IS NOT SUSTAINABLE AS PER CASE LAW DHLF VENTURE CAPITAL FUND VS. ITO (2013) [358 ITR 471] (BOM). WE ADOPT THE VERY REASONING HEREIN MUTATIS MUTANDIS TO QUASH THE IMPUGNED REOPENING. ALL OTHER PLEADINGS ON MERITS ARE RENDERED INFRUCTUOUS. 4. THIS ASSESSEES APPEAL IS ALLOWED IN FOREGOING T ERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH MARCH, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S.S.G ODARA) ACCOUNTANT MEMBER JUDICIAL MEM BER HYDERABAD, DATED: 15-03-2021 TNMM ITA NO. 1356/HYD/2018 :- 4 -: COPY TO : 1.S.HARINATH CHOWDHARY, C/O. P.MURALI & CO., CHARTE RED ACCOUNTANTS, 6-3-655/2/3, 1 ST FLOOR, SOMAJIGUDA, HYDERABAD. 2.THE INCOME TAX OFFICER, WARD-6(2), HYDERABAD. 3.CIT(APPEALS)-6, HYDERABAD. 4.PR.CIT-6, HYDERABAD. 5.D.R. ITAT, HYDERABAD. 6.GUARD FILE.