P.Sobha, L/r. of late P. Sudarshan Reddy, Hyd, Hyderabad V. ITO, Ward-11(3), Hyderabad, Hyderabad

ITA 16/HYD/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6203 (ITAT-HYDERABAD)
• Duration Of Justice: 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 06-09-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 07-01-2016
• Court: TRIBUNAL
• Department Lawyers: U MINICHANDRAN
• Assessee Lawyers: V SIVA KUMAR
• Keywords: Additional evidence
• Section: 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B (SMC), HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 16/HYD/2016 ASSESSMENT YEAR: 2011-12 SMT. P. SOBHA, L/R OF LATE P. SUDARSHAN REDDY, HYDERABAD [PAN: BPNPP3869M] VS INCOME TAX OFFICER, WARD-11(3), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI V. SIVA KUMAR, AR FOR REVENUE : SMT U. MINICHANDRAN, DR DATE OF HEARING : 07-09-2016 DATE OF PRONOUNCEMENT : 14-09-2016 O R D E R THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS)-5, HYDERABAD D ATED 30-10-2015 ON THE ISSUE OF CLAIM U/S. 10(37) AS WEL L AS U/S 54F OF THE INCOME TAX ACT [ACT] WHICH WAS NOT CONSIDERED. 2. THE FACTS LEADING TO THE PRESENT APPEAL ARE THAT, SHR I SUDARSHAN REDDY PANNALA WAS HAVING SOME LAND WHICH WAS ACQUIRED BY THE CENTRAL GOVERNMENT FOR THE PURPOSE OF DEFENCE RESEARCH AND DEVELOPMENT LABORATORY [DRDL] THROUGH GOV T. OF AP. HE HAS RECEIVED A COMPENSATION AMOUNT OF RS. 51,67,41 0/-. SHRI SUDARSHAN REDDY EXPIRED ON 31-12-2012 AND HIS WIFE SMT. SHOBA FILED RETURN OF INCOME IN THE CAPACITY OF LEGAL REPRE SENTATIVE ON 28-03-2013 DISCLOSING THE COMPENSATION AMOUNT RECEIV ED. I.T.A. NO. 16/HYD/2016 :- 2 -: ASSESSEE CLAIMED EXEMPTION U/S. 54F IN CONSTRUCTION O F A NEW HOUSE AT POOL BAGH COLONY, FEROZGUDA, KUKATPALLY. AS SESSING OFFICER (AO) IN THE SCRUTINY ASSESSMENT HOWEVER, DID N OT TAKE ON RECORD SMT. SHOBA AS LEGAL REPRESENTATIVE, BUT ASSESSME NT WAS COMPLETED IN THE NAME OF SHRI SUDARSHAN REDDY, EVEN THOUGH HE EXPIRED EVEN BEFORE THE RETURN OF INCOME WAS FILED. BE THAT AS IT MAY, ASSESSEES CLAIM U/S. 54F WAS DENIED ON THE REA SON THAT ASSESSEE DID NOT FURNISH ANY EVIDENCE OF HAVING INVE STED THE MONEY IN CONSTRUCTING THE HOUSE. HE ALSO NOTED THAT THE LAND ON WHICH THE BUILDING WAS SUPPOSED TO BE CONSTRUCTED WAS PURCHAS ED PRIOR TO 2001 AND MUNICIPAL PERMISSION WAS ALSO OF EARLIER DATE, NOT RELEVANT FOR CLAIM U/S. 54F DURING THE YEAR. HE DET ERMINED THE LONG TERM CAPITAL GAINS AT RS. 36,31,769/- AND LEVIED TAXES ACCORDINGLY. 3. BEFORE THE LD. CIT(A), ASSESSEES LEGAL REPRESENTA TIVE MADE CLAIM U/S. 10(37) INDICATING THAT LAND ACQUIRED BY THE GOVERNMENT WAS AGRICULTURAL LAND AND AGRICULTURAL OPERATIONS WE RE BEING CARRIED OUT HENCE, EXEMPT U/S. 10(37) OF THE ACT. HOW EVER, SINCE ASSESSEE COULD NOT FURNISH ANY EVIDENCE, BY EXTRACTING A PART OF APPROPRIATE AUTHORITYS ORDER, LD. CIT(A) GAVE A FIND ING THAT THE AREA IS COMING UNDER GRATER HYDERABAD MUNICIPAL COR PORATION LIMITS AND IT CANNOT BE TREATED AS AGRICULTURAL LAND. 4. LD. COUNSEL REFERRING TO THE ORDER OF ACQUISITIO N BY THE LAND ACQUISITION AUTHORITY SUBMITTED THAT LD. CIT(A) HAS ONL Y EXTRACTED PART OF ORDER, BUT THERE IS RECORD THAT THERE WAS AN AGR ICULTURAL WELL, PUMP HOUSE, CATTLE SHED, TAMARIND TREE AND MANGO TREE AND NO BUILDING. IN ADDITION TO THAT, LD. COUNSEL ALSO P LACED ADDITIONAL I.T.A. NO. 16/HYD/2016 :- 3 -: EVIDENCE WHICH COULD NOT BE FURNISHED BEFORE THE AO IN THE FORM OF PATTA PASS BOOK OF SHRI P. PENTAIAH, FATHER OF ASSESSEE AND ALSO LETTER FROM DEPUTY COLLECTOR AND TAHSILDAR, SAROOR NA GAR (M), R.R. DISTRICT, CONFIRMING THAT LANDS WERE AGRICULTURAL IN NATURE. THI S LETTER WAS ADDRESSED TO ITO, WARD-9(3), HYDERABAD ON A REFERENCE MADE BY THE AO IN ANOTHER CASE OF SHREE VEERA REDDY A ND YADI REDDY, WHO ARE CO-OWNERS IN THE ENTIRE LAND ACQUIRED BY THE GOVERNMENT FOR DRDL. THIS INFORMATION, SINCE COULD N OT BE FURNISHED BEFORE THE AUTHORITIES, HAS BEEN SUBMITTED WITH A PRAYER FOR ADMISSION OF ADDITIONAL EVIDENCE. IT WAS A SUBMI SSION THAT ASSESSEE ALSO PRAYED FOR MORE TIME FOR FURNISHING TH E EVIDENCE BEFORE THE CIT(A), BUT LD. CIT(A) DECIDED THE ISSUE WI THOUT GIVING ANY FURTHER OPPORTUNITY. IT WAS SUBMITTED THAT ASSESSEE WAS PREVENTED IN SUBMITTING NECESSARY DETAILS AS SHE WAS F ILING THE RETURN IN HER REPRESENTATIVE CAPACITY AND WAS NOT FULL Y CONVERSANT WITH THE MATTERS OF HER HUSBAND. IT WAS REQUESTED THAT IF ANOTHER OPPORTUNITY IS GIVEN BEFORE THE AO, THE CLAIMS CAN BE EXAMINED AFRESH. 5. LD. DR HOWEVER, RELIED ON THE ORDERS OF THE AO AND FAIRLY ADMITTED THAT THE ADDITIONAL EVIDENCE REQUIRED TO BE VERIF IED BY THE AO. 6. AFTER CONSIDERING THE RIVAL CONTENTIONS, I AM OF THE OPINION THAT AO DID NOT GIVE ADEQUATE OPPORTUNITY TO ASSESSEE TO SUBMIT NECESSARY DETAILS. IN FACT, HIS ORDER DO INDICATE THA T HE WAS CONSTRAINED FOR TIME AS HE HAS RECORDED IT WAS INFORMED THAT NO FURTHER OPPORTUNITY WILL BE GIVEN BEING A TIME BARR ING MATTER & ASSESSMENT WILL BE COMPLETED ACCORDINGLY AS PER THE SHOW CAUSE I.T.A. NO. 16/HYD/2016 :- 4 -: NOTICE ISSUED . THIS INDICATES THAT AO WAS CONSTRAINED BY TIME BARRING NATURE OF THE ASSESSMENT AND ASSESSEE ALSO CO NTESTED THE SAME BEFORE THE LD. CIT(A). MOREOVER, AS SEEN FROM THE ORDER, AO DID NOT TAKE THE LEGAL REPRESENTATIVE ON RECORD AND ASSE SSMENT WAS COMPLETED IN THE NAME OF DECEASED SHRI SUDARSHAN RED DY. LD. CIT(A) ALSO HAS DECIDED THE ISSUE WITHOUT EXAMINING TH E CONTENTIONS AND VIDE LETTER DT. 29-10-2015, ASSESSEE PA RTICULARLY ASKED FOR TIME, IN THE REPRESENTATION MADE BEFORE THE CI T(A). SINCE NEW EVIDENCE HAS BEEN FURNISHED BEFORE ME IN THE FOR M OF ADDITIONAL EVIDENCE, IN THE INTEREST OF JUSTICE, I AM OF THE OPINION THAT THE MATTERS REQUIRE RE-EXAMINATION BY THE AO. AO IS DIRECTED TO EXAMINE THE CLAIM U/S. 10(37) AND IF THAT IS NOT ACCE PTABLE, THE CLAIM U/S. 54F IF ALLOWABLE. AO IS ALSO DIRECTED TO KEEP IN MIND THE FINDINGS GIVEN IN OTHER CO-OWNERS CASES IN WHICH IT W AS SUBMITTED THAT EXEMPTION U/S. 10(37) WAS ALLOWED AND NO PROCEEDI NGS WERE INITIATED. WITH THESE DIRECTIONS, THE ISSUES OF CLAIM U/ S. 10(37) AND ALTERNATELY U/S 54F ARE RESTORED TO THE FILE OF AO. ASSESSEE SHOULD BE GIVEN DUE OPPORTUNITY TO FURNISH NECESSARY EVIDENCE IN SUPPORT OF THE CLAIMS. THE GROUNDS ARE ALLOWED FOR STA TISTICAL PURPOSES. 7. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH SEPTEMBER, 2016 SD/- (B. RAMAKOTAIAH) ACCOUNTANT MEMBER HYDERABAD, DATED 14 TH SEPTEMBER, 2016 TNMM I.T.A. NO. 16/HYD/2016 :- 5 -: COPY TO : 1. SMT. P. SOBHA, L/R. OF LATE P. SUDARSHAN REDDY, H.NO. 7-1-21/19/1, PHOOL BAGH COLONY, FEROZGUDA, KUKATPAL LY, HYDERABAD. 2. INCOME TAX OFFICER, WARD-11(3), HYDERABAD. 3. COMMISSIONER OF INCOME TAX(APPEALS)-5, HYDERABAD 4. PR. COMMISSIONER OF INCOME TAX-5, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.