Madabhushi Divakar Babu, Hyd, Hyderabad V. ACIT, Circle-13(1), Hyderabad, Hyderabad

ITA 1426/HYD/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6023 (ITAT-HYDERABAD)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 25-10-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 23-12-2015
• Court: TRIBUNAL
• Department Lawyers: A SITARAMA RAO
• Assessee Lawyers: A V RAGHURAM
• Keywords: Sale consideration of property below Jantri Value
• Section: 143(3); 50C; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A, HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 1426/HYD/2015 ASSESSMENT YEAR: 2008-09 MADABUSHI DIVAKAR BABU, HYDERABAD [PAN: AFNPM7915E] VS THE A.C.I.T., CIRCLE-13(1), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI A.V. RAGHU RAM, AR FOR REVENUE : SHRI A. SITARAMA RAO, DR DATE OF HEARING : 25-10-2016 DATE OF PRONOUNCEMENT : 16-11-2016 O R D E R PER B. RAMAKOTAIAH, A.M. : THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS)-4, HYDERABAD, DATED 26-11-2015. ASSESSEE HAS RAISED THE FOLLOWING MATER IAL GROUND: THE LEARNED CIT(A) ERRED IN DISMISSING THE APPEAL H OLDING THAT THE ASSESSMENT ORDER IS PASSED TO GIVE EFFECT TO TH E ORDER OF THE CIT, PASSED U/S. 263 WITHOUT APPRECIATING THAT THE ORDER U/S. 263 CONTAINED DIRECTIONS ONLY TO DO THE ASSESSMENT BY INVOKING THE PROVISIONS OF SEC. 50C OF THE ACT AND TO EXAMIN E THE CORRECTNESS OF COST OF IMPROVEMENT AND NOT A SPECIF IC DIRECTION TO MAKE ANY ADDITION. I.T.A. NO. 1426/HYD/2015 MADABUSHI DIVAKAR BABU :- 2 -: 2. BRIEFLY STATED, ASSESSEE FILED HIS RETURN OF INCOM E ADMITTING TOTAL INCOME OF RS. 1,92,206/- AND SCRUTINY ASSESSMEN T U/S. 143(3) OF THE INCOME TAX ACT [ACT] WAS COMPLETED ON 26 -11-2010 ON A TOTAL INCOME OF RS. 3,54,460/-. LD.CIT NOTICED THAT ASSESSING OFFICER (AO) HAS NOT MADE ANY ENQUIRIES AND FAILED TO EXAMINE VARIOUS ISSUES AND INITIATED PROCEEDINGS U/S. 263 OF THE ACT. IN THE ORDER DT. 18-02-2013, LD.CIT SET ASIDE THE ASSESSME NT WITH A DIRECTION TO RE-DO THE SAME BY INVOKING THE PROVISIONS OF SECTION 50C OF THE ACT. HE IS ALSO DIRECTED THAT THE CORRECTNESS OF THE CLAIM OF COST OF IMPROVEMENT HAS TO BE EXAMINED. LD.CIT ALS O DIRECTED THAT ASSESSEE IS TO BE GIVEN DUE OPPORTUNITY OF BEING H EARD BEFORE FINALISING THE RE-ASSESSMENT PROCEEDINGS. CONSEQU ENT TO THE ABOVE ORDER OF LD.CIT, THE ACIT, CIRLCE-13(1) HAS CO MPLETED THE RE- ASSESSMENT, DETERMINING TOTAL INCOME AT RS. 74,03,860/- . ASSESSEE HAS PREFERRED AN APPEAL BEFORE THE CIT(A) B UT LD.CIT(A) DISMISSED THE APPEAL STATING AS UNDER: 2. ON VERIFICATION OF THE ASSESSMENT ORDER, IT WAS FOUND THAT THE ASSESSING OFFICER HAS MADE ADDITIONS BASED ON T HE DIRECTIONS OF THE COMMISSIONER OF INCOME TAX AND NO OTHER ADDITIO NS WERE MADE AND THEREFORE, NO APPLICATION OF MIND OF A.O. 3. AS THE COMMISSIONER OF INCOME TAX AND THE COMMIS SIONER OF INCOME TAX (APPEALS) ARE THE EQUAL AUTHORITIES, AN APPEAL AGAINST THE ASSESSMENT COMPLETED AS PER THE DIRECTIONS OF T HE COMMISSIONER OF INCOME TAX U/S. 263 OF THE ACT COULD NOT BE DECI DED BY THE COMMISSIONER OF INCOME TAX (APPEALS). ACCORDINGLY, THE APPEAL IS TREATED AS DISMISSED FOR STATISTICAL PURPOSES. 3. AFTER CONSIDERING THE RIVAL CONTENTIONS, WE ARE OF TH E OPINION THAT LD.CIT HAS NOT GIVEN ANY DIRECTION TO MAKE AN ASSE SSMENT IN A PARTICULAR WAY. HE ONLY DIRECTED TO INVOKE THE PROV ISIONS OF SECTION 50C. TO THAT EXTENT, ASSESSEE HAS ACCEPTED THE ORDER BUT I.T.A. NO. 1426/HYD/2015 MADABUSHI DIVAKAR BABU :- 3 -: AO HAS EXAMINED THE ISSUE AFRESH UNDER THE PROVISIONS OF SECTION 50C. CONSEQUENTLY, WE ARE OF THE OPINION THAT CIT(A) C AN EXAMINE THE CONTENTION OF ASSESSEE WITH REFERENCE TO THE WORKING UNDER SEC. 50C AND COMPUTATION OF CAPITAL GAINS, AS THOSE ARE NO T COVERED BY THE ORDER OF CIT U/S. 263. WE ARE OF THE OPINION THAT LD.CIT(A) IS NOT CORRECT IN DISMISSING THE APPEAL. ACCORDINGLY, WE SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE APPEAL TO THE FIL E OF CIT(A) TO EXAMINE THE CONTENTIONS RAISED BY ASSESSEE ON MERITS, E XCEPT THE ISSUE OF INVOKING PROVISIONS OF SEC 50C ON WHICH AS SESSEE HAS NOT PREFERRED ANY APPEAL ON THE ORDER U/S 263. THE GROU ND OF ASSESSEE IS ACCORDINGLY CONSIDERED ALLOWED FOR STATISTICAL PUR POSES. 4. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH NOVEMBER, 2016 SD/- SD/- (D. MANMOHAN) (B. RAMAKOTAIAH) VICE PRESIDENT ACCOUNTANT MEMB ER HYDERABAD, DATED 16 TH NOVEMBER, 2016 TNMM I.T.A. NO. 1426/HYD/2015 MADABUSHI DIVAKAR BABU :- 4 -: COPY TO : 1. MADABUSHI DIVAKAR BABU, HYDERABAD. C/O. K. VASANT KUMAR, A.V. RAGHU RAM, P. VINOD, ADVOCATE S, 610, BABUKHAN ESTATE, BASHEER BAGH, HYDERABAD. 2. THE ACIT, CIRCLE-13(1), HYDERABAD. 3. CIT (APPEALS)-4, HYDERABAD. 4. CIT-4, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.