Fatima Khatoon, Hyderabad V. Income Tax Officer,Ward -9(1), Hyderabad

ITA 158/Hyd/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 9291 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Assessment Year: 2011-2012
• Appeal Filed On: 21-03-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital Gains
• Section: 147; 50C; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD ‘A’ BENCH, HYDERABAD. BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND SHRI L. P. SAHU, ACCOUNTANT MEMBER (Through Virtual Hearing) ITA Nos.158, 159 & 160/Hyd/2021 (Assessment Year : 2011-12) 1. Smt. Fatima Khatoon, Hyderabad. PAN AJAPK 7121R 2. Shri Mohd. Mukhtar Ali Khan, Hyderabad. PAN AHAPK 6743P 3. Shri Murtuza Ali Khan Mohammed, Hyderabad. PAN AFIPM2636M .....Appellants. Vs. Income Tax Officer, Ward 9(1), Hyderabad. .....Respondent. Appellants By : None. Respondent By : Shri Paruchuri Dinesh. (D.R.) Date of Hearing : 18.10.2021. Date of Pronouncement : 28.10.2021. O R D E R Per Shri S.S. Godara, J.M. : These three assessees’ as many appeals for Assessment Year 2011-12 arise against the CIT(A)-7, 2 ITA Nos.158, 159 & 160/Hyd/2021 Hyderabad’s separate order dt.21.08.2019 passed in case No.0169/CIT(A)-7/2018-19 and CIT(A)-10, Hyderabad’s separate orders both dt.21.12.2018; in case Nos. ITBA/APL/S/ 250 / 2019-20 / 102687038 and ITBA/APL/S/ 250 / 2019-20/102686978 respectively; involving proceedings u/s.144 r.w.s. 147 of the Income Tax Act, 1961 ('the Act'). Cases called twice. None appears at the assessees’ behest. We accordingly proceed exparte against them. 2. We notice at the outset that these assessees’ appeals suffer from 519 days delay in first and foremost and 304 days each in later twin instances; respectively. Learned department representatives fails to dispute that the impugned delay mainly pertains to the years 2020 and 2021 hit by pandemic Covid 19 only. Hon’ble apex court’s recent decision dt.23.09.2021 in Miscellaneous Application No.665/221 in SMW(C) No.3/2020 in IN RECOGNIZANCE FOR EXTENSION OF LIMITATION has already excluded time period between 15 th March, 2020 till 2 nd October, 2021 for the purpose of computing all limitations. We thus hold 3 ITA Nos.158, 159 & 160/Hyd/2021 that all these three delays are neither intentional nor deliberate on account of 2019 pandemic only. The same stands condoned therefore. 4. Coming to the lead appeal ITA 158/Hyd/2021, the assessee Smt. Fatima’s sole substantive grievance is that the CIT(A) has erred in law and on facts in directing the Assessing Officer to adopt SRO’s price “assessable” on the date of agreement for the purpose of computing the 50C long term capital gains (LTCG) addition of Rs.4,89,08,085 made in the assessment order dt.21.12.2018 as under : “ 4.2 I have considered the submissions of the appellant and findings of the Assessing Officer in the assessment order carefully. The Assessing Officer made an addition of Rs.4,89,08,085 being 1/3 rd share of Capital Gains arrived by Assessing Officer u/s. 50C of the IT Act. The main contention made by the appellant was that Assessing Officer did not --- Space left intentionally --- 4 ITA Nos.158, 159 & 160/Hyd/2021 5 ITA Nos.158, 159 & 160/Hyd/2021 6 ITA Nos.158, 159 & 160/Hyd/2021 5. The Revenue has vehemently contended that the CIT(A) has rightly issued the impugned directions to the Assessing Officer to go by the SRO price “assessable” as on the date of agreement herein dt.11.5.2005 for the purpose of computing the impugned capital gains in light of tribunal’s decision (supra). We find no merit in the Revenue’s instant vehement argument since the date of agreement admittedly before us is 11.05.2005 only whereas the corresponding clinching statutory expression “or assessable” in section 50C(1) came to be inserted in the Finance Act, 2009 w.e.f. 1.10.2009 than having any retrospective operation. Hon’ble Madras High Court decision CIT Vs. R.Sugantha Ravindran (2013) 352 ITR 488 (Mad) holds that foregoing amendment carries prospective effect only. We thus adopt strict interpretation as per hon’ble apex court recent and constitutional effect decision in Commissioner of Customs Vs. Dilip Kumar & Co. (2018) 9 SCC 1 (SC) and hold that 7 ITA Nos.158, 159 & 160/Hyd/2021 the legislative expression “or assessable” used in 1st proviso has to be read in conjunction with the corresponding employed in section 50C(1) of the Act rather than having any independent exigibility. We accordingly reverse the learned CIT(A)’s directions in issue and accept the assessee's instant sole substantive ground in the lead appeal ITA 158/Hyd/2021. This first and foremost ground and main appeal succeeds therefore. 6. Same order to follow in the remaining twin appeals ITA Nos.159 & 160/Hyd/2021 as well involving the very date of agreement i.e. 11.5.2005. 7. These three plural assessees’ appeals are allowed in above terms. A copy of this common order be placed in respective case files. Order pronounced in the open court on Oct., 2021. (L.P. SAHU) (S.S. GODARA) Accountant Member Judicial Member Hyderabad, Dt. .10.2021. * Reddy gp 8 ITA Nos.158, 159 & 160/Hyd/2021 Copy to : 1. i) Smt. Fathima Khatoon, 16-4-777, Sardar Bagh, Malakpet, Hyderabad-500 028. ii) Shri Mohd. Mukhtar Ali Khan, 16-4-278, Chanchalguda, Hyderabad-500 034 iii) Shri Murtuza Ali Khan Mohammed, 16-4-278, Chanchalguda, Hyderabad-500 034 2. ITO, Ward 9(1), Hyderabad. 3. Pr. C I T-7, Hyderabad. 4. CIT(Appeals)-7, Hyderabad / CIT(A)-10, Hyderabad./CIT (IT & TP), Hyderabad / CCIT (IT) (SZ), Bengaluru. 5. DR, ITAT, Hyderabad. 6. Guard File. By Order Sr. Pvt. Secretary, ITAT, Hyderabad.