Polu Jitender Reddy , Nalgonda V. Income Tax Officer, Ward-1, Nalgonda

ITA 2002/Hyd/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3250 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 13-11-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 05-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: E A HANGAL
• Assessee Lawyers: JELLA NAGARAJ
• Keywords: Condonation of delay; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES SMC, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER I.T.A. NO. 2002/HYD/2018 ASSESSMENT YEAR: 2009-10 POLU JITENDER REDDY, VELLANKI (V), RAMANNAPET (M) [PAN: AHLPP6612R] VS INCOME TAX OFFICER, WARD-1, SURYAPET (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI JELLA NAGARAJ, AR FOR REVENUE : SMT. E.A. HANGAL, DR DATE OF HEARING : 13-11-2019 DATE OF PRONOUNCEMENT : 15-11-2019 O R D E R THIS APPEAL FILED BY THE ASSESSEE FOR THE AY. 2009-10, IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCO ME TAX (APPEALS)3, HYDERABAD, DATED 10-08-2017. 2. AT THE OUTSET, IT IS SEEN THAT THERE IS A DELAY OF 32 2 (THREE HUNDRED AND TWENTY TWO) DAYS IN FILING OF THE APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY ALONG WITH AN AFFIDAVIT, EXPLAINI NG THE REASONS FOR THE DELAY. IT IS STATED THAT THE ASSESSEE HAS RECEIVED THE ORDER OF CIT(A) ON 18-09-2017 AND THE PE RIOD OF 60 DAYS FOR FILING OF THE APPEAL BEFORE THE TRIBUNAL ENDED ON 19-11-2017. THE ASSESSEE SUBMITTED THAT THE DELAY IS C AUSED FOR THE REASON OF CONTINUOUS ILL-HEALTH OF THE ASSESSE E DUE TO BIKE ACCIDENT, WHICH HAS OCCURRED IN HIS VILLAGE, WH ILE DRIVING TO HIS HOME ON 15-03-2017 AND DIAGNOSED AS INJURY TO ITA NO. 2002/HYD/2018 :- 2 -: RT.BRACHIAL PLEXUS, DUE TO WHICH, THE ASSESSEE WAS CONTINUOUSLY UNDERGOING TREATMENT OF DEGENERATIVE CHANGE S IN THE CERVICAL AND LUMBAR SPINE. HE HAS ALSO ENCLOSED THE NECESSARY MEDICAL CERTIFICATES IN SUPPORT OF THE SAID CONTENTIONS. 3. LD.DR WAS ALSO HEARD, WHO OPPOSED THE CONDONATION OF DELAY. 4. HAVING REGARD TO THE FACT THAT THE ASSESSEE MET WITH A N ACCIDENT AND WAS UNDER A CONTINUOUS TREATMENT, AS IS EVI DENT FROM THE MEDICAL REPORTS FILED BEFORE THE TRIBUNAL, I AM INCLINED TO CONDONE THE DELAY OF 322 (THREE HUNDRED A ND TWENTY TWO) DAYS IN FILING OF THE APPEAL BEFORE THE T RIBUNAL. 4.1. AS REGARDS THE MERITS OF THE ISSUE, THE BRIEF FACTS ARE THAT THE ASSESSEE ALONG WITH 8 (EIGHT) OTHERS HAD ENTERED IN TO AN AGREEMENT OF SALE CUM GPA WITH POSSESSION ON 15-12-2 008 WITH ONE SMT. B.BHAVANI, AND THE TRANSACTION WAS REGI STERED VIDE DOCUMENT NO.2559/2008. THE ASSESSING OFFICER (A O) OBSERVED THAT THE ASSESSEES HAVE PURCHASED TOTAL OF 4800 SQ.FT., PLINTH AREA ALONG WITH UN-DIVIDED EXTENT OF LAND MEASURING 540 SQ.YARDS FOR A CONSIDERATION OF RS.2,20,00,000/- AND THE ASSESSEES SHARE OF THE PROP ERTY IS RS.24,73,188/-, AFTER CONSIDERING THE STAMP DUTY OF RS.2,58,700/- ALSO. 4.2. SINCE THE ASSESSEE HAD FILED HIS RETURN OF INCO ME ON 24-06-2010 ADMITTING NET INCOME OF ONLY RS.32,089/-, THE AO ITA NO. 2002/HYD/2018 :- 3 -: RE-OPENED THE ASSESSMENT BY ISSUANCE OF A NOTICE U/S.1 48 OF THE INCOME TAX ACT. IN RESPONSE TO THE SAID NOTICE, THE ASSESSEE APPEARED AND FURNISHED INFORMATION AND STATE D THAT THE AGREEMENT OF SALE WAS SUBSEQUENTLY CANCELLED DUE TO UNAVOIDABLE CIRCUMSTANCES BEFORE PAYMENT OF BALANCE AMOUNT. IT WAS ALSO SUBMITTED THAT THE SOURCES OF THE SA ID PAYMENT WERE HIS PERSONAL SAVINGS, OUT OF INCOME EARN ED BY HIM FROM AGRICULTURAL OPERATIONS AND SALE OF AGRICULT URAL LANDS IN EARLIER YEARS. HE ALSO STATED THAT THE REFUND OF THE SAID AMOUNT ON THE CANCELLATION OF AGREEMENT WAS UTILISED FO R HIS DAUGHTERS MARRIAGE. IN SUPPORT THEREOF, HE ALSO SUBM ITTED THE DETAILS OF THE AGRICULTURAL LANDS HELD BY HIM AND HIS FAMILY MEMBERS SUCH AS PATTADAR PASS BOOKS AND EXTENT OF LAND- HOLDINGS ETC. THE AO, HOWEVER, HELD THAT THE AGREEMENT OF SALE WAS CANCELLED SUBSEQUENTLY, BUT THE ASSESSEE WAS IN POSSESSION OF THE AMOUNT PAID AND THAT AGRICULTURAL LAN D- HOLDINGS DO NOT PROVE THAT THE ASSESSEE HAD SUCH HUGE F UNDS. HE THEREFORE TREATED THE SUM OF RS.24,17,633/- AS UN- EXPLAINED MONEY AND BROUGHT IT TO TAX. AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE C IT(A), WHO DISPOSED-OF BY CONFIRMING THE ASSESSMENT ORDER S INCE THE ASSESSEE DID NOT APPEAR BEFORE THE CIT(A) AND THE ASSE SSEE IS IN SECOND APPEAL BEFORE THE TRIBUNAL. 4.3. LD.COUNSEL FOR THE ASSESSEE REITERATED THE SUBMI SSIONS MADE BEFORE THE AUTHORITIES BELOW AND ALSO SUBMITTED THA T ALL THE RELEVANT DOCUMENTS WERE FILED BEFORE THE AO, WHO HA S NOT CONSIDERED THE SAME AND HAS TREATED THE ENTIRE AMOUNT AS ASSESSEES UN-EXPLAINED MONEY, WITHOUT GIVING ANY WEIGHTAGE ITA NO. 2002/HYD/2018 :- 4 -: FOR THE AGRICULTURAL INCOME, WHICH COULD BE EARNED FR OM SUCH AGRICULTURAL LAND TO THE EXTENT OF RS.45.42 ACRES. 4.4. HAVING REGARD TO THE RIVAL CONTENTIONS AND MATERI AL ON RECORD, I FIND THAT RELEVANT MATERIAL TO PROVE THE AGRICU LTURAL INCOME WAS FILED BEFORE THE AO, BUT THE AO HAS NOT CON SIDERED THE SAME AND THE CIT(A) CONFIRMED THE ORDER BECAUSE TH E ASSESSEE DID NOT APPEAR BEFORE HIM. THUS, THE EVIDEN CE FILED BY THE ASSESSEE HAS NOT BEEN EXPLAINED AT ALL. THEREFO RE, I AM INCLINED TO SET ASIDE THE ISSUE TO THE FILE OF AO FOR TH E LIMITED PURPOSE OF VERIFYING THE EXTENT OF LAND-HOLDINGS OF AS SESSEE AND HIS FAMILY AND IF THE LAND-HOLDING AS CLAIMED BY THE ASSESSEE FOUND TO BE CORRECT, THEN THE NET INCOME THEREF ROM SHALL BE ESTIMATED AT RS.25,000/- PER ACRE, PER ANNUM AND THE SUM OF RS.11,50,000/- CAN BE ACCEPTED AND ALSO A SUM OF RS.4 LAKHS CAN BE CONSIDERED AS REASONABLE INCOME A VAILABLE WITH THE ASSESSEE FROM THE PAST YEARS. ONLY THE BALANCE CAN BE TREATED AS UN-EXPLAINED INVESTMENT. THE AO IS DIRECTE D ACCORDINGLY. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS TREATED AS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH NOVEMBER, 2019 SD/- (P. MADHAVI DEVI) JUDICIAL MEMBER HYDERABAD, DATED: 15-11-2019 TNMM ITA NO. 2002/HYD/2018 :- 5 -: COPY TO : 1. POLU JITENDER REDDY, VELLANKI (V), RAMANNAPET (M ), YADADRI BHONGIR. 2. INCOME TAX OFFICER, WARD-1, SURYAPET. 3. CIT(APPEALS)-3, HYDERABAD. 4. PR.CIT-3, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.