Smt. Syed Pasha Begum, Hyderabad V. The DCIT, Circle - 6, Hyderabad

ITA 1587/HYD/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59178 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 25-05-2011
• Assessment Year: 2008-2009
• Appeal Filed On: 13-12-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUDHAKAR RAO
• Assessee Lawyers: K A SAI PRASAD
• Keywords: Capital asset; Additional evidence
• Section: 54F; 2(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NO. ASST . YEAR APPELLANT RESPONDENT 1584/HYD/2010 2008-09 SMT. KAUSER BEGUM, HYDERABAD (PAN AZCPK 5514 E) DY. COMMISSION- ER OF INCOME-TAX CENTRAL CIRCLE 6, HYDERABAD 1585/HYD/2010 2008-09 SMT. ZUBIDA BEGUM, HYDERABAD (PAN AOBPB 3275 M ) DY. COMMISSION- ER OF INCOME-TAX CENTRAL CIRCLE 6, HYDERABAD 1587/HYD/2010 2008-09 SMT. SED PASHA BEGUM, HYDERABAD (PAN AOBPB 3273 P) DY. COMMISSION- ER OF INCOME-TAX CENTRAL CIRCLE 6, HYDERABAD APPELLANTS BY : SHRI K.A.SAI PRASAD RESPONDENT BY : SHRI SUDHAKAR RAO DATE OF HEARING 23.1.2012 DATE OF PRONOUNCEMENT 31.1.2012 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THESE THREE APPEALS BY THE ASSESSEES ARE DIRECTED AGAINST SIMILAR BUT SEPARATE ORDERS OF THE CIT(A) I, HYDERABAD, DATED 8 .9.2010/27.9.2010 FOR THE ASSESSMENT YEAR 2008-09. SINCE COMMON ISSUES ARE INVOLVED, T HESE APPEALS ARE BEING DISPOSED OF, BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NO.1584, 1585 AND 1587/HYD/10 SMT. KAUSER BETGUM AND 2 OTHERS, HY DERABAD . 2 2. THE FIRST COMMON EFFECTIVE GRIEVANCE OF THE ASS ESSEES IN THESE APPEALS IS WITH REGARD TO REJECTION OF THE ASSESSEE S CLAIM FOR EXEMPTION OF CAPITAL GAINS RECEIVED BY THEM UNDER S.54F OF THE I NCOME-TAX ACT, 1961. 3. AT THE OUTSET, LEARNED COUNSEL FOR THE ASSESSEE S SUBMITTED THAT THIS ISSUE IS COVERED BY THE DECISION OF THE TRIBUNAL DA TED 28 TH FEBRUARY, 2011 IN ITA NO.1576/HYD/2010 AND OTHERS FOR ASSESSMENT YEAR 200 8-09, IN THE CASES OF RELATED ASSESSEES, VIZ. SHRI MOHD. SHUJAUDDIN, NARS INGHI, RR DISTRICT AND THREE OTHERS. A COPY OF THE SAID DECISION OF THE TRIBUNA L IS ALSO FURNISHED BEFORE US. LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND, RELIED ON THE ORDERS OF THE LOWER AUTHORITIES, THOUGH HE COULD NOT CONTROVE RT THE SUBMISSIONS OF THE LEARNED COUNSEL FOR ASSESSEES. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE ORDERS OF THE LOWER AUTHORITIES. WE FIND THAT THE ISSUE REL ATING TO THE CLAIM OF THE ASSESSEES IS COVERED BY THE DECISION OF THE TRIBUNA L DATED 28 TH FEBRUARY, 2011 IN SIMILAR CASES. THEREIN, THE TRIBUNAL HAS SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES ON THIS ASPECT AND RESTORED THE MATTER TO THE FILE OF THE CIT(A), WITH THE FOLLOWING OBSERVATIONS- 5. ..AFTER CONSIDERING THE FACTS AND CIRCUMSTA NCES OF THE CASE IN TOTALITY, WE FEEL IT JUST AND PROPER TO RESTORE THE ISSUE TO THE FILE OF THE CIT(A) FOR FRESH CONSIDERATION THE CLAIM OF THE ASSESSEE FOR EXEMPTI ON UNDER SECTION 54F OF THE ACT ON THE BASIS OF THE ADDITIONAL EVIDENCE FILED. THE CIT(A) SHALL AFFORD AN OPPORTUNITY TO THE ASSESSEE AND DECIDE THE ISSUE AF RESH IN THE LIGHT OF THE ADDITIONAL EVIDENCE FILED. THIS GROUND OF THE ASSES SEE IS ALLOWED FOR STATISTICAL PURPOSES. FACTS AND CIRCUMSTANCES IN THE PRESENT CASES BEING SIMILAR TO THOSE CONSIDERED BY THE TRIBUNAL IN THE ABOVE CASES, WE SET ASIDE TH E IMPUGNED ORDERS OF THE CIT(A) IN THESE MATTERS AS WELL, AND RESTORE THESE MATTERS ALSO TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION IN ACCORDANCE WITH LA W, DULY CONSIDERING THE ITA NO.1584, 1585 AND 1587/HYD/10 SMT. KAUSER BETGUM AND 2 OTHERS, HY DERABAD . 3 ADDITIONAL EVIDENCE FILED/THAT MAY BE FILED IN SUPP ORT OF THE CLAIMS OF THE ASSESSEES AND AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. THIS COMMON GROUND IS ALLOWED FOR STATIST ICAL PURPOSES. 5. THE NEXT GRIEVANCE OF THE ASSESSEES COMMON IN A LL THESE APPEALS IS WITH REGARD TO DISALLOWANCE OF ADDITIONAL GROUND RA ISED BY THE ASSESSEES WITH REGARD TO THE SUM OF RS.5 LAKHS RECEIVED AS ADVANCE . GROUNDS OF THE ASSESSEE ON THIS ASPECT READ AS FOLLOWS- 2 (I) THE LEARNED COMMISSIONER OF INCOME-TAX(APPE ALS) IS NOT JUSTIFIED IN DISALLOWING THE FOLLOWING ADDITIONAL G ROUND RAISED BY THE APPELLANT IN REGARD TO THE SUM OF RS. 5 LAKH S RECEIVED AS ADVANCE, ON THE GROUND THAT THE ADDITIONAL GROUN D DOES NOT EMANATE FROM THE ASSESSMENT ORDER. SINCE THE SUM OF RS.5 LAKHS, BEING ADVANCE RECEIVE D FROM SRI V.RAMACHANDER RAO, TO WHOM THE SAME LAND WAS PROPOSED TO BE SOLD EARLIER, WAS WRONGLY ADDED TO THE SALE PROCEEDS IN THE COMPUTATION OF CAPITAL GAI NS, THE LEARNED ASSESSING OFFICER OUGHT TO HAVE DELETED THE SAME FROM THE CONSIDERATION RECEIVED AND DEDUCTED SUCH SUM FROM THE COST OF THE ASSET, AS PROVIDED U/S. 51 (EVEN THOUGH THE APPELLANT HIMSELF ADDED/ADMITTED THIS AMOUNT BY INADVERTENCE/IGNORANCE). II) THE LEARNED COMMISSIONER OF INCOME-TAX(APPEAL S) IS NOT JUSTIFIED , IN THE CIRCUMSTANCES OF THE CASE, IN CO NCLUDING THAT THERE IS NO MERIT IN THE APPELLANTS CLAIM U/S. 51 SINCE THE APPELLANT (I) COULD NOT ESTABLISH THE EXISTENCE OF THE FAILED TRANSACTION (I) DID NOT SHOW THAT THE AMOUNT ALLEG EDLY RECEIVED WAS LYING WITH HIM AS AN ADVANCE AND NO C APITAL ACCOUNT OR BALANCE SHEET WAS PRODUCED IN THIS REGAR D. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE CIT(A) HAS R EJECTED THE ADDITIONAL GROUND RAISED BY THE ASSESSEES BEFORE HIM ON ITS MERITS, A ND AS SUCH IT IS NOT CORRECT FOR THE ASSESSEES TO SAY THAT THE CIT(A) HAS HELD THE S AME AS NOT EMANATING FROM THE ASSESSMENT ORDER. WE FURTHER FIND THAT THE RE ASONS DISCUSSED BY THE CIT(A) ITA NO.1584, 1585 AND 1587/HYD/10 SMT. KAUSER BETGUM AND 2 OTHERS, HY DERABAD . 4 FOR REJECTING THE ADDITIONAL GROUND TAKEN BY THE AS SESSEES IN PARA 05.0 OF HIS ORDER ON PAGES 3 AND 4 THEREOF, WHICH HAVE BEEN SUM MARIZED BY THE ASSESSEES IN THE LATTER PART OF GROUND OF APPEAL ITSELF, EXTR ACTED ABOVE, ARE SOUND AND VALID AND WE ARE IN AGREEMENT WITH THE SAME. WE AC CORDINGLY UPHOLD THE ORDERS OF THE CIT(A) ON THIS ISSUE AND REJECT THE GROUNDS OF THE ASSESSEE IN THIS BEHALF. 7. THE NEXT EFFECTIVE GROUND THE AS SESSEES IN THESE APPEALS READS AS FOLLOWS- .3 WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE APP ELLANT SUBMITS THE FOLLOWING NEW GROUND, FOR THE FIRST TIME BEFORE THE HONBLE INCOM E TAX APPELLATE TRIBUNAL. THE RELEVANT ASSET DOES NOT COME WITHIN THE PURVIE W OF THE CAPITAL ASSET AS DEFINED IN SECTION 2(14) AND, TH EREFORE, GAIN ARISING FROM THE SALE OF THIS ASSET IS NOT TAXABLE. 8. ON CAREFUL CONSIDERATION OF THE RIVAL SUBMISSIO NS WE FIND THAT THOUGH THE ASSESSEE CLAIMS THAT THIS GROUND IS COVERED BY THE DECISION OF THE TRIBUNAL IN THE CASE OF SRINIVAS PANDIT (30 SOT 350), WE FIND N O JUSTIFICATION TO ENTERTAIN THE SAID ADDITIONAL GROUND AT THIS SECOND APPELLATE STA GE, MORE SO, SINCE IT WAS NEVER THE CASE OF THE ASSESSEES THAT PROPERTY SOLD WAS NOT A CAPITAL ASSET WITHIN THE MEANING OF S.2(14) OF THE ACT, AND ON TH E CONTRARY, THE ASSESSEES THEMSELVES, OFFERING CAPITAL GAINS ARISING ON THE T RANSFER OF THE PROPERTY TO TAX, CLAIMING, HOWEVER, EXEMPTION IN RESPECT OF THE SAME UNDER S.54F OF THE ACT. WE ACCORDINGLY DECLINE TO ENTERTAIN THE ADDITIONAL GROUNDS SOUGHT TO BE RAISED BY THE ASSESSEES IN THESE APPEALS. 9. IN THE RESULT, ALL THE THREE APPEALS OF THE ASS ESSEES ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.1584, 1585 AND 1587/HYD/10 SMT. KAUSER BETGUM AND 2 OTHERS, HY DERABAD . 5 ORDER PRONOUNCED IN THE COURT ON 31.1. 2012 SD/- SD/- (ASHA VIJAYARAGHAVAN) (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER DT/- 31 ST JANUARY, 2012 COPY FORWARDED TO: 1. SMT. KAUSER BEGUM, C/O. M/S. CH.PARTHASARATHY & CO., 1 - 1 - 298/2/B/3, 1 ST FLOOR, SOWBHAGYA AVENUE, STREET NO.1, ASHOKNAGAR, HYDERABAD 500 020. 2. 3. SMT. ZUBIDA BEGUM, C/O. M/S. CH.PARTHASARATHY & CO., 1 - 1 - 298/2/B/3, 1 ST FLOOR, SOWBHAGYA AVENUE, STREET NO.1, ASHOKNAGAR, HYDERABAD 500 020. SMT. SED PASHA BEGUM, C/O. M/S. CH.PARTHASARATHY & CO., 1- 1-298/2/B/3, 1 ST FLOOR, SOWBHAGYA AVENUE, STREET NO.1, ASHOKNAGAR, HYDERABAD 500 020. 5. DY. COMMISSIONER OF INCOME - TAX CENTRAL CIRCLE 6, HYDERABAD 6. COMMISSIONER OF INCOME - TAX(APPEALS) I, HYDERABAD 7. COMMISSIONER OF INCOME-TAX(CENTRAL), HYDERABAD 8. DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S