Syed Rafiuddin, Hyd, Hyderabad V. DCIT, Central Circle-3, Hyderabad, Hyderabad

ITA 1374/HYD/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 6378 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 10-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R B NAIK
• Keywords: Condonation of delay
• Section: 143(3); 263

Judgement Text

ITA NOS 1369 TO 1377 OF 2015 L PREETHA PRIYADARSHIN I SECUNDERABAD AND OTHERS PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER & SHRI PARTHA SARATHI CHAUDHURI, JUDICIAL MEMBER ITA NO. NAME OF APPELLANT RESPONDENT A. Y 1369/HYD/2015 L. PREETA PRIYADARSHINI SECUNDERABAD PAN:ARUPL 9809 Q DCIT, CENTRAL CIRCLE (3) HYDERABAD 2009-10 1370/HYD/2015 SUNITA PRASAD, SECUNDERABAD PAN: BKGPP2507 E - DO - 2009-10 1371/HYD/2015 M. SURENDRANATH SECUNDERABAD PAN:ASFYPM 6952L - DO - 2009-10 1372/HYD/2015 S. SATYANARAYANA, HYDERABAD PAN: AULPS 1897G - DO - 2009-10 1373/HYD/2015 MAHITA PRASAD CADDEL HYDERABAD PAN: AKWPC 6119M - DO - 2009-10 1374/HYD/2015 SYED RAFIUDDIN HYDERABAD PAN: BERPS 6026J - DO - 2009-10 1375/HYD/2015 INDRANI PRASAD, HYDERABAD PAN: AANPI 5216 K - DO - 2009-10 1376/HYD/2015 - DO - - - DO - 2009-10 1377/HYD/2015 LORAINE REENA PETERSON HYDERABAD PAN:APOPP 0610C - DO - 2009-10 FOR ASSESSEE : SHRI . MURALI MOHAN RAO FOR REVENUE : SHRI R.B. NAIK, DR DATE OF HEARING : 2 8 .06.2016 DATE OF PRONOUNCEMENT : 01.07 .2016 O R D E R PER BENCH: THESE BATCH OF APPEALS ARE PREFERRED BY THE ABOVE ASSESSEES AGAINST THE SEPARATE BUT SIMILAR ORDERS OF THE LEAR NED CIT (A)VII HYDERABAD, DATED 13.06.2014 FOR THE RELEVANT A.Y 20 09-10. ITA NOS 1369 TO 1377 OF 2015 L PREETHA PRIYADARSHIN I SECUNDERABAD AND OTHERS PAGE 2 OF 5 2. AT THE OUTSET, WE NOTICE THAT THERE IS A PRAYER FOR CONDONATION OF DELAY IN FILING THESE APPEALS BY 471 DAYS BY THE ASSESSEES. IN THE AFFIDAVIT, IT IS STATED THAT THE DELAY HAS BEEN CAU SED AS THE CIT (A)S ORDER WHICH WAS RECEIVED ON 25.6.2014 GOT MISPLACED AND IT HAS BEEN TRACED OUT ONLY ON 8.12.2015. FURTHER, IT WAS SUBMITTED, THERE ARE MANY APPEALS IN THE GROUP AND THE JURISDICTION WAS TRANSFERRED FROM CIT (A) HYDERABAD TO TIRUPATHI AND BACK AND TH E ASSESSEE DID NOT NOTICE DISPOSAL OF APPEALS BY THE CIT (A). THE LEARNED COUNSEL REFERRED TO THE NOTICES ISSUED BY THE CIT (A) FOR T HE SAME ASSESSMENT IN SUPPORT OF THE CONTENTIONS. THE LEARN ED DR OPPOSED THIS CONDONATION OF DELAY. IN THE INTEREST OF JUSTI CE WE FIND IT DEEM AND PROPER TO CONDONE THIS DELAY OF THE ASSESSEES A ND WE HEREBY ADMIT ALL THE APPEALS AND MORE SO SINCE THE PRAYER FOR CONDONATION HAS BEEN FILED BY THE ASSESSEES THROUGH AFFIDAVIT. 3. ON THE FACTS OF THIS CASE, WE FIND THAT THERE IS AN ASSESSMENT ORDER U/S 143(3) OF THE ACT, AGAINST WHICH THE APPE ALS HAS BEEN PREFERRED BEFORE THE LEARNED CIT (A) AND WE FIND FR OM THE ORDER OF THE LEARNED CIT (A) DATED 13.06.2014 THAT HE HAS NO T ADJUDICATED ON ANY OF THE FACTS/GROUNDS PUT FORTH BEFORE HIM IN THAT APPELLATE ORDER. THIS IS SO BECAUSE WHILE THE APPELLATE PROCE EDINGS WERE ON, THE CIT HAD PASSED AN ORDER U/S 263 OF THE ACT VIDE ORDER DATED 27.03.2014 IN WHICH HE HAD SET ASIDE THE ASSESSMENT MADE THE OPERATIVE PART OF THE ORDER U/S 263 IN PARA 5 WHICH READ AS UNDER: 5. UNDER THE CIRCUMSTANCES STATED ABOVE, I HEREBY SET ASIDE THE ASSESSMENT ORDER PASSED BY THE AO U/S 143(3) R.W.S. 153C FOR THE YEAR 2009-10 DATED 26.12.2011 WITH A DIRECTION TO EXAMINE THE ENTIRE I SSUE OF CAPITAL GAINS ON THE SALE OF LAND BY THE ASSESSE E AND COMPUTATION OF CAPITAL GAIN SHOULD BE MADE AFTER ITA NOS 1369 TO 1377 OF 2015 L PREETHA PRIYADARSHIN I SECUNDERABAD AND OTHERS PAGE 3 OF 5 MAKING NECESSARY VERIFICATION OF THE ABOVE ISSUES. AO WHILE REDOING THE ASSESSMENT MAY CONSIDER THE EXPLANATION OF THE ASSESSEE FILED DURING THE REVISI ON PROCEEDINGS ON MERIT. NEEDLESS TO SAY, AN OPPORTUNI TY SHOULD BE GIVEN TO THE ASSESSEE BEFORE RE-DOING THE ASSESSMENTS AS PER DIRECTIONS ABOVE. 4. THE LEARNED CIT (A) WAS OF THE OPINION THAT SECT ION 263 AND PARTICULARLY THE WORDING OF EXPLANATION (C) TO SECT ION 263(1) IS VERY CLEAR WHEREIN IT IS STATED THAT THE JURISDICTION OF THE CIT IS EXTENDED TO SUCH MATTERS AS HAD NOT BEEN CONSIDERED AND DECI DED IN SUCH APPEAL. THUS, AS LONG AS THE APPEAL IS NOT DECIDED BY THE CIT (A), THE ADMINISTRATIVE CIT HAS POWERS TO CONSIDER ALL T HE ISSUES ARISING IN SUCH ASSESSMENT ORDER. IN THE INSTANT CASE WHEN THE MATTER WAS TAKEN UP U/S 263, NO APPELLATE ORDER WAS PASSED AND THEREFORE, THE ENTIRE ASSESSMENT WAS BEFORE HIM FOR REVIEW. THAT O AN ORDER U/S 263 WAS PASSED AND THE WORDS USED WERE I HEREBY SET ASIDE THE ASSESSMENT ORDER PASSED WITH A DIRECTION TO EXAMIN E THE ENTIRE ISSUE OF CAPITAL GAINS AND COMPUTATION OF CAPITAL G AINS SHOULD BE MADE AFTER MAKING NECESSARY VERIFICATION . THE LEARNED CIT (A) WAS OF THE OPINION THAT THERE IS NO ASSESSMENT REMA INING TO BE ADJUDICATED IN APPEAL PROCEEDINGS. HENCE THE LEARN ED CIT (A) DISMISSED THE APPEALS FILED BY THE ASSESSEES. 5. DURING THE HEARING BEFORE US, THE LEARNED AR BRO UGHT TO OUR NOTICE THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE ORDER DATED 20.01.2016 WHEREIN IT IS NOTICED THAT T HE TRIBUNAL IN ASSESSEES OWN CASE HAS MEANWHILE HELD THAT THE 263 PROCEEDINGS INITIATED BY THE CIT IS NOT SUSTAINABLE. THE OBSERV ATIONS OF THE ITAT IN THE ASSESSEES OWN CASE WHILE DELETING THE PROCEE DINGS U/S 263 VIDE PARA 8 READ AS UNDER: ITA NOS 1369 TO 1377 OF 2015 L PREETHA PRIYADARSHIN I SECUNDERABAD AND OTHERS PAGE 4 OF 5 8. IN THE CASE BEFORE US ALSO, SIMILAR CIRCUMSTANCE S EXISTS AND FOR READY REFERENCE PARA 4 OF THE ASSESSMENT ORDER UNDER SECT ION 143(3) READ WITH SECTION 263 OF THE I.T. ACT IN THE CASE OF SMT. IN DRANI PRASAD PLACED AT PAGE 80 OF THE PAPER BOOK IS REPRODUCED HEREUNDER W HEREIN SIMILAR OBSERVATIONS HAVE BEEN MADE BY THE RESPECTIVE ASSES SING OFFICERS IN THE CASE OF OTHER ASSESSEES ALSO. 04. FURTHER, IT IS NOTICED THAT THE CAPITAL GAINS A RISING OUT OF TRANSFER OF 10.08 ACRES (WHICH WAS ERRONEOUSLY MENT IONED AS 10.8 ACRES IN THE CORRESPONDENCE HELD WITH THE ASSESSEE INCLUDING THE ORDER U/S 263) + 3 ACRES OF LAND AT SURVEY NO. 172, HYDER NAGAR OF WHICH THE ASSESSEE IS THE ACTUAL LEGAL OWNER. ALSO BY VIRTUE OF THE AGREEMENT OF SALE CUM GPA ENTERED INTO BY THE ASSES SEE WITH EIGHT ASSIGNEES WHO WERE CO-OWNERS OF THE LAND AT S URVEY NO. 78, HAFEEZPET, ASSESSEE IS THE OWNER OF THIS LAND TOO; SINCE NO CAPITAL GAINS WERE DISCLOSED BY THE ASSESSEE IN THESE TWO S EPARATE LAND TRANSACTIONS WHICH TOOK PLACE THE ORDER PASSED EARL IER U/S 143(3) R.W.S, 153C BECAME ERRONEOUS IN SO FAR AS IT WAS PR EJUDICIAL TO THE INTEREST OF REVENUE. THEREFORE, A PROPOSAL FOR REVI SION U/S 263 OF THE ORDER PASSED EARLIER U/S 143(3) R.W.S. 153C WAS SUBMITTED TO THE CIT(C), HYDERABAD ON 26/07/2013. ORDER U/S 263 WAS PASSED BY THE CIT(C), HYDERABAD SETTING ASIDE THE ASSESSME NT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 1 53C DATED 30- 12-2011 WITH A DIRECTION TO QUANTIFY THE ACTUAL CAP ITAL GAINS ARISING IN THE HANDS OF THE ASSESSEE IN RESPECT OF THE LAND TRANSACTIONS NOTED ABOVE AFTER MAKING NECESSARY VER IFICATION OF THE ABOVE ISSUES. IT WAS FURTHER DIRECTED TO LOOK I NTO THE ASPECT OF PRICING OF THE LAND WHILE COMPUTING THE CAPITAL GAI NS. 8.1. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THIS TRIBUNAL IN SIMILAR CIRCUMSTANCES, WE HOLD THAT THE REVISION PR OCEEDINGS UNDER SECTION 263 OF THE I.T. ACT ARE NOT SUSTAINABLE. IN VIEW OF ALLOWING OF THE ADDITIONAL GROUNDS OF APPEAL NO. 21 AND 22 AND HOLD ING THAT THE ORDERS UNDER SECTION 263 ARE NOT SUSTAINABLE, THE OTHER GR OUNDS OF APPEAL NEED NO ADJUDICATION AS SUCH ADJUDICATION WOULD RESULT I N AN ACADEMIC EXERCISE. 6. THEREFORE, ONCE IN THE ASSESSEES OWN CASE THE I TAT HAS HELD THAT 263 PROCEEDINGS ARE NOT SUSTAINABLE, THE ORIGI NAL ASSESSMENT U/S 143(3) IS AUTOMATICALLY REVIVED. IN THE CIRCUMS TANCES, THE APPEAL AGAINST THAT 143(3) ORDER BEFORE THE CIT (A) GETS REVIVED. THEREFORE, WE SET ASIDE THE ORDERS OF THE LEARNED C IT (A) IN ALL THE CASES AND RESTORE APPEALS TO THE FILE OF THE LEARNE D CIT (A) TO ITA NOS 1369 TO 1377 OF 2015 L PREETHA PRIYADARSHIN I SECUNDERABAD AND OTHERS PAGE 5 OF 5 ADJUDICATE ON THE GROUNDS AND PASS NECESSARY ORDERS . THIS ORDER SHALL APPLY FOR ALL THE APPEALS PREFERRED BEFORE US HEREIN. THEREFORE, IN EFFECT, ALL THESE APPEALS ARE SET ASIDE TO THE F ILE OF THE CIT (A) FOR FURTHER ADJUDICATION. 7. IN THE RESULT, APPEALS ARE ALLOWED FOR STATISTIC AL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST JULY, 2016. S D/ - S D/ - (B. RAMAKOTAIAH) (PARTHA SARATHI CHAUDHURI) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED 1 ST JULY, 2016. VNODAN/SPS COPY TO: 1. P.MURALI & CO. CAS, 6-3-655/2/3 1 ST FLOOR, SOMAJIGUDA, HYDERABAD 500082 2. DCIT CENTRAL CIRCLE 3 HYDERABAD 3. CIT-VII HYDERABAD 4. CIT-(CENTRAL) HYDERABAD 5. THE DR, ITAT, HYDERABAD 6. GUARD FILE BY ORDER