Harish Kumar Gaddipathi , Hyderabad V. Income Tax Officer, Ward-14(2), Hyderabad

ITA 1584/Hyd/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8950 (ITAT-HYDERABAD)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 26-06-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 23-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M NARMADA
• Assessee Lawyers: P MURALI MOHAN RAO
• Keywords: Application of stay; Additional evidence
• Section: 142(1); 143(1); 148

Judgement Text

ITA NO 1584 AND SA NO 237 OF 2018 HARISH KUMAR GADD IPATHI HYDERABAD. PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NO.1584 AND S.A. NO.237/HYD/2018 (ASSESSMENT YEAR: 2010-11) SHRI HARISH KUMAR GADDIPATHI HYDERABAD PAN:AFTPG0891B VS INCOME TAX OFFICER WARD 14 (2) HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI P. MURALI MOHAN RAO FOR REVENUE : SMT. M. NARMADA, DR O R D E R PER SMT. P. MADHAVI DEVI, J.M. THIS IS ASSESSEES APPEAL FOR THE A.Y 2010-11 AGAIN ST THE ORDER OF THE CIT (A)-6, HYDERABAD, DATED 16.05. 2018. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, A N INDIVIDUAL, FILED HIS RETURN OF INCOME FOR THE A.Y 2010-11 ON 21.1.2011 DECLARING AN INCOME OF RS.2,96,400/- AND THE SAME WAS PROCESSED U/S 143(1) OF THE ACT. SUBSEQUENTLY, THE AO CAME TO KNOW THAT THE ASSESSEE ALONG WITH OTHERS HAS SOL D IMMOVABLE PROPERTY DURING THE ASSESSMENT YEAR UNDER CONSIDERA TION, BUT DATE OF HEARING : 26.06.2019 DATE OF PRONOUNCEMENT : 10.07.2019 ITA NO 1584 AND SA NO 237 OF 2018 HARISH KUMAR GADD IPATHI HYDERABAD. PAGE 2 OF 6 HAS NOT ADMITTED THE INCOME FROM CAPITAL GAINS IN T HE RETURN OF INCOME FILED FOR THE A.Y 2010-11. THEREFORE, THE AS SESSMENT WAS REOPENED BY ISSUANCE OF A NOTICE U/S 148. IN RESPON SE TO THE SAID NOTICE, THE ASSESSEE FILED A LETTER DATED 3.4.2017 REQUESTING TO TREAT THE RETURN OF INCOME FILED ON 21.01.2011 AS T HE RETURN FILED IN COMPLIANCE OF THE NOTICE U/S 148 OF THE ACT. THE REAFTER, THE NOTICES U/S 143(2) AND 142(1) WERE ISSUED AND SERVE D ON THE ASSESSEE. 3. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE SUBMITTED BEFORE THE AO THAT THE ASSESSEE AND THREE OTHERS WERE THE OWNERS OF THE PROPERTY WHICH WAS SOLD VIDE SALE AGREEMENT CUM GPA BUT THE VENDEE HAD CHEATED THE VENDORS AND HAD NOT COMPLIED WITH THE TERMS OF THE AGREEMENT INCLUDING THE PAYMENT OF CONSIDERATION TO ALL THE VENDORS WHO HAVE EXECUT ED THE SALE AGREEMENT CUM GPA. IT WAS ALSO SUBMITTED THAT THE V ENDEE HAS NOT PAID ANY CONSIDERATION TO THE ASSESSEE AND THE CO-OWNERS TILL THE DATE OF NOTICE AND HENCE SALE AGREEMENT WAS SOU GHT TO BE CANCELLED. THE ASSESSEE ALSO SUBMITTED THAT THE SUB JECT PROPERTY IS UNDER HIS POSSESSION EVEN ON THE DATE OF FILING THE AFFIDAVIT. THE AO, HOWEVER, OBSERVED FROM THE RECITALS IN THE AGPA THAT THE ASSESSEE AND OTHERS HAVE EXECUTED THE SALE AGREEMEN T CUM GPA ITA NO 1584 AND SA NO 237 OF 2018 HARISH KUMAR GADD IPATHI HYDERABAD. PAGE 3 OF 6 AND AS PER THE AGREEMENT, IT IS SEEN THAT THEY HAVE GIVEN VACANT AND PEACEFUL POSSESSION OF THE PROPERTY TO THE VEND EES BY DULY RECEIVING THE SALE CONSIDERATION. IT WAS ALSO OBSER VED THAT SINCE THE ASSESSEE HAS RECEIVED THE CONSIDERATION AND HAS PARTED WITH THE POSSESSION OF THE PROPERTY, PROVISIONS OF SECTI ON 53A OF THE TRANSFER OF PROPERTY ACT WOULD APPLY AND THE PROVIS IONS OF SECTION 2(47)(V) OF THE ACT ALSO WOULD APPLY. HE FURTHER OB SERVED THAT THE VENDEE HAD PLEDGED THE PROPERTY WITH FINANCIAL INST ITUTIONS AND HAD OBTAINED THE LOAN OF RS.32.00 CRORES IN THE NAM E OF THE COMPANY IN WHICH HE IS A DIRECTOR. HE THEREFORE, HE LD THAT THE ASSESSEE AS WELL AS THE OTHER OWNERS HAVE PHYSICALL Y HANDED OVER THE PROPERTY TO THE VENDEE AND HENCE THE CAPITAL GA INS IS CHARGEABLE TO TAX IN THE HANDS OF THE ASSESSEE FOR THE RELEVANT A.Y. 4. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFO RE THE CIT (A) WHO DISMISSED THE SAME FOR WANT OF APPEARAN CE BY THE ASSESSEE. THE CIT (A) HAS RECORDED THAT ON A NUMBER OF OCCASIONS, THE APPEAL WAS POSTED FOR HEARING AND THE ASSESSEE HAS BEEN SEEKING ADJOURNMENTS EXCEPT FOR THE LAST DATE OF HE ARING I.E. 26.04.2018. AGAINST THIS ORDER OF THE CIT (A), THE ASSESSEE IS IN APPEAL BEFORE US. IN ADDITION TO THE GROUNDS OF APP EAL FILED ALONG ITA NO 1584 AND SA NO 237 OF 2018 HARISH KUMAR GADD IPATHI HYDERABAD. PAGE 4 OF 6 WITH FORM 36, THE ASSESSEE HAS ALSO RAISED CERTAIN OTHER ADDITIONAL GROUNDS OF APPEAL. HE SOUGHT ADMISSION O F THE SAME AND ADJUDICATION OF THE ADDITIONAL GROUNDS AS WELL. THE ASSESSEE ALSO FILED ADDITIONAL EVIDENCE BEING THE COPY OF TH E CANCELLATION OF SALE AGREEMENT CUM GPA ALONG WITH THE PUBLIC NOTICE ALSO AND COPY OF THE PETITION FILED BEFORE THE HON'BLE A.P. HIGH COURT AGAINST THE VENDEE AND ALSO DISTRICT REGISTRAR FOR CANCELLATION OF THE EARLIER AGREEMENT OF SALE CUM GPA. HE SUBMITTED THAT THESE DOCUMENTS GOES TO THE ROOT OF THE MATTER AND TO SUB STANTIATE THE ASSESSEES CLAIM THAT THE ASSESSEE HAS NOT RECEIVED THE SALE CONSIDERATION AND THE POSSESSION OF THE PROPERTY AL SO WAS NOT HANDED OVER TO THE VENDEE. HE THEREFORE, PRAYED THA T THE ADDITIONAL GROUNDS AND ALSO THE ADDITIONAL EVIDENCE BE ADMITTED AND REMANDED TO THE FILE OF THE AO FOR DENOVO CONSI DERATION. 5. THE LEARNED DR, HOWEVER, SUPPORTED THE ORDERS OF THE AO AND SUBMITTED THAT THE ASSESSEE FAILED TO COOPER ATE WITH THE CIT (A) DUE TO WHICH THE CIT (A) DISMISSED THE APPE AL. THE LEARNED DR SUBMITTED THAT THE MATTER MAY BE REMANDED TO THE FILE OF THE CIT (A), IF NECESSARY, FOR ADJUDICATION ON MERITS. ITA NO 1584 AND SA NO 237 OF 2018 HARISH KUMAR GADD IPATHI HYDERABAD. PAGE 5 OF 6 6. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE M ATERIAL ON RECORD, WE FIND THAT THE ASSESSEES STAND HAS BE EN THAT HE HAS NOT RECEIVED THE SALE CONSIDERATION AND ALSO THAT H E HAS NOT GIVEN THE POSSESSION OF THE PROPERTY TO THE VENDEE. THE A O HAS GONE BY THE RECITALS IN THE REGISTERED AGREEMENT OF SALE-CU M-GPA THAT THE ASSESSEE HAS RECEIVED THE PAYMENT AND HAS GIVEN THE POSSESSION OF THE PROPERTY. WE ARE OF THE OPINION THAT THE AGR EEMENT OF SALE CUM GPA CANNOT BE HELD TO BE THE COMPLETE LEGAL TRA NSFER OF THE TITLE. FURTHER, THE ASSESSEES CONTENTION THAT HE H AS FILED AN APPLICATION FOR CANCELLATION OF THE REGISTRATION DO CUMENT AND ALSO THAT HIS PETITION FOR SUCH CANCELLATION IS PENDING BEFORE THE HON'BLE A.P. HIGH COURT IS ALSO WORTH CONSIDERATION . IN VIEW OF THE SAME, WE DEEM IT FIT AND PROPER TO ADMIT THE ADDITI ONAL GROUNDS AS WELL AS THE ADDITIONAL EVIDENCE. SINCE THIS EVI DENCE REQUIRES VERIFICATION, WE DEEM IT FIT TO REMAND THE ISSUE TO THE FILE OF THE AO FOR DE NOVO CONSIDERATION IN ACCORDANCE WITH THE LA W. NEEDLESS TO MENTION THAT THE ASSESSEE SHOULD BE GIVEN A FAIR OP PORTUNITY OF HEARING AND THE ASSESSEE ALSO SHALL CO-OPERATE WITH THE AO FOR EARLY COMPLETION OF THE ASSESSMENT. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO 1584 AND SA NO 237 OF 2018 HARISH KUMAR GADD IPATHI HYDERABAD. PAGE 6 OF 6 8. SINCE THE APPEAL ITSELF HAS BEEN DISPOSED OF BY THIS ORDER, THE STAY APPLICATION FILED BY THE ASSESSEE H AS BECOME INFRUCTUOUS AND ACCORDINGLY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH JULY, 2019. SD/- SD/- (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER (P. MADHAVI DEVI) JUDICIAL MEMBER HYDERABAD, DATED 10 TH JULY, 2019. VINODAN/SPS COPY TO: 1 SHRI HARISH KUMAR GADDIPATHI, FLAT NO.304, 4 TH FLOOR, LEGEND APARTMENTS, BANJARA HILLS, HYDERABAD 500034 2 ITO WARD 14(2) ROOM NO.634, 6 TH FLOOR, C BLOCK, IT TOWERS, AC GUARDS, HYDERABAD 3 CIT (A)-6 HYDERABAD 4 PR. CIT 6 HYDERABAD 5 THE DR, ITAT HYDERABAD 6 GUARD FILE BY ORDER