Madhusudhan Reddy L/R of Late V. Ramachandra Reddy, Hyderabad V. ITO., Ward-1, Medak Dist

ITA 1490/HYD/2014

• Counselvise Citation: 149022514 RSA 2014
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 22-01-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 18-09-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO.1490/HYD/2014 : ASSESSMENT YEAR 2009 - 10 SHRI V.MADHUSUDHAN REDDY, L/R. OF LATE V.RAMACHANDRA REDDY, RAMACHANDRAPURAM, MEDAK DIST. (PAN AFAPV 2450 C) V/S. INCOME TAX OFFICER , WARD - 1 , SANGAREDDY (APPELLANT) (RESPONDENT) APPL IC ANT BY : S HRI MOHD. AFZAL RESPONDENT BY : SMT. SUMAN MALIK DR DATE OF HEARING 22 . 1 .201 5 DATE OF PRONOUNCEMENT 22.1.2015 O R D E R PER P.M.JAGTAP, ACCOUNTANT MEMBER : THIS APPEAL IS PREFERRE D BY ASSESSEE AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME - TAX(APPEALS) - III, HYDERABAD DATED 21.8.2014 ON THE FOLLOWING GROUNDS - 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS AGAINST LAW, AND PROBABILITIES OF CASE. 2. THE LEARNED COMMISSIONER ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER, WHEREIN, MERELY ON ENTERING INTO A DEVELOPMENT AGREEMENT IT WAS ASSUMED THAT THERE IS A TRANSFER OF PROPERTY, WITHOUT APPRECIATING THE MEANING OF THE TRANSFER AS PROVIDED IN SECTION 2(47) R.W. S . 53A OF THE TRANSFER OF PROPERTY ACT. 3. THE LEARNED COMMISS IONER ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER WHEREIN AN ADDITION OF RS . 8,07,OOOI - IS MADE AS UNEXPLAINED CASH DEPOSIT WITHOUT APPRECIATING THE EXPLANATION SUBMITTED DURING THE COURSE OF ASSESSMENT/APPEAL PROCEEDINGS. ITA NO. 1490 /HYD/2014 SHRI V.MADHUSUDHAN REDDY, L/R. OF LATE V.RAMACHANDRA REDDY, RAMACHANDRAPURAM, MEDAK DIST. 2 4. THE LEARNED COMMISSIONER OF INCOME TAX ERRED IN NOT FOLLOWING THE RATIONALE DECIDED BY THE JURISDICTIONAL HON'BLE INCOME TAX APPELLATE TRIBUNAL IN THE CASE OF MISS K.RADHIKA & OTHERS VS DCIT CC - 2, HYDERABAD (ITA NO.208 TO 211/HYD/2011), M/S BINJUSARIA PROPERTIES PVT LTD VS ACIT CC - 4, HYD (ITA NO.157/HYD/2011) AND FIBRAS INFRATECH PVT LTD, HYDERABAD VS ITO WARD - 1(2) , HYDERABAD (ITA NO.477/HYD/2013) . 5. THE LEARNED COMMISSIONER OF INCOME TAX OUGHT TO HAVE APPRECIATED THAT AFTER ENTERING INTO DEVELOPMENT AGREEMENT, THE DEVELOPER DID NOT PERFORM ANY OBLIGATION IN PURSUANCE OF THE DEVELOPMENT AGREEMENT AND THE LAND WAS AS IT IS , AS IN ITS ORIGINAL STATE WHEN THE DEVELOPMENT AGREEMENT ENTERED, THEREFORE, SECTION 2(47) (V) IS NOT AT ALL ATTRACTED. 6. THE LEARNED COMMISSION ER ERRED IN CONFIRMING THE ADDITION OF RS. 10,01,500/ - MADE AS UNEXPLAINED CASH DEPOSIT WITHOUT GIVING ANY REASONS FOR STATING THAT THE EXPLANATION OFFERED IS NOT SATISFACTORY. 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. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND ALSO PERUSED MATERIAL AVAILABLE ON RECORD. 3. AS SUBMITTED BY LEARNED C OUNSEL FOR THE ASSESSEE AT THE OUTSE T, ASSESSEE HAS ALREADY EXPIRED WAY BACK ON 1.8.2013 I.E., WELL BEFORE THE IMPUGNED ORDER CAME TO BE PASSED BY LEARNED CIT(A) ON 2 1 . 8 .201 4 . HE HAS ALSO FILED A COPY OF DEATH CERTIFICATE ISSUED BY GREATER HYDERABAD MUNICIPAL CORPORATION SHOWING THE DATE OF DEATH OF THE ASSESSEE AS 1 ST AUGUST , 2013. THE IMPUGNED ORDER PASSED BY LEARNED CIT(A) THUS IS IN THE NAME OF A DEAD PERSON AND THE SAME HAS BEEN SO PASSED BECAUSE THE INTIMATION OF DEATH OF ASSESSEE WAS NOT GIVEN TO LEARNED CIT(A) AS AGREED EVEN ITA NO. 1490 /HYD/2014 SHRI V.MADHUSUDHAN REDDY, L/R. OF LATE V.RAMACHANDRA REDDY, RAMACHANDRAPURAM, MEDAK DIST. 3 BY LEARN ED COUNSEL FOR THE ASSESSEE. IN THE CASE OF CIT V/ S. D ALUMAL SHYAMUMAL (2005)276 ITR 62 , THE DECISION OF THE TRIBUNAL HOLDING THE ASSESSMENT ORDER PASSED BY ASSESSING OFFICER AGAINST A DEA D PERSON TO BE A NULLITY WAS UPHELD BY HONBLE MADHYA PRADESH HIGH COURT. IT WAS FURTHER HELD BY HONBLE MADHYA PRADESH HIGH COURT THAT THE TRIBUNAL SHOULD HAVE REMANDED THE CASE TO THE A.O. TO ENSURE COMPLIANCE OF S. 159 OF THE ACT AND FOR PASSING APPROPRI ATE ORDER OF ASSESSMENT, AFTER DUE NOTICE TO THE LEGAL REPRESENTATIVE OF THE DECEASED ASSESSEE. KEEPING IN VIEW THE DECISION OF HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT V/ S. DALUMAL SHYAMUMAL ( S UPRA), AND HAVING REGARD TO THE FACTS OF THE CASE, WE SET ASIDE THE IMPUGNED ORDER PASSED BY LEARNED CIT(A) IN THE NAME OF DECEASED - ASSESSEE HOLDING THE SAME AS NULLITY AND REMIT THE MATTER BACK TO HIM WITH A DIRECTION TO PASS A FRESH ORDER DISPOSING OF THE APPEAL OF THE ASSESSEE AFTER COMPLYING WITH THE REQUIREMENTS OF S. 159(2). THE LEGAL REPRESENTATIVE OF THE ASSESSEE IS ALSO DIRECTED TO EXTEND ALL THE POSSIBLE COOPERATION TO THE LEARNED CIT(A) BY FURNISHING ALL THE RELEVANT PARTICULARS AND DETAILS REQUIRED BY HIM FOR THE PURPOSE OF DISPOSAL OF THE APPE AL. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT AT THE CONCLUSION OF HEARING ON 22 ND JANUARY, 201 5 SD/ - SD/ - ( SAKTIJIT DEY ) ( P.M.JAGTAP ) JUDICIAL MEMBER ACCOUNTANT MEMBER DT/ - 22 ND JANUARY, 2015 ITA NO. 1490 /HYD/2014 SHRI V.MADHUSUDHAN REDDY, L/R. OF LATE V.RAMACHANDRA REDDY, RAMACHANDRAPURAM, MEDAK DIST. 4 COPY FORWARDED TO: 1. SHRI V.MADHUSUDHAN REDDY, L/R. OF LATE V.RAMACHANDRA REDDY, (RAMACHANDRAPURAM, MEDAK DIST.) 2 . INCOME TAX OFFICER WARD 1, SANGAREDDY 3. 4. COMMISSIONER OF INCOME - TAX(APPEALS) III , MUMBAI COMMISSIONER OF INCOME - TAX II , HYDERABAD 5. DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S