Kamlesh Konodia , Hyderabad V. Income Tax Officer, Ward-11(2), Hyderabad

ITA 2112/Hyd/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4811 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 07-04-2021
• Assessment Year: 2010-2011
• Appeal Filed On: 02-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital Gains
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER I.T.A. NO. 2112/HYD/2018 ASSESSMENT YEAR: 2010-11 KAMLESH KANODIA, HYDERABAD [PAN: AHSPK2820K] VS INCOME TAX OFFICER, WARD-11(2), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : NONE FOR REVENUE : SHRI ROHIT MUJUMDAR, DR DATE OF HEARING : 07-04-2021 DATE OF PRONOUNCEMENT : 11-05-2021 O R D E R PER S.S.GODARA, J.M. : THIS ASSESSEES APPEAL FOR AY.2010-11 ARISES FROM TH E CIT(A)-5, HYDERABADS ORDER DATED 24-07-2018 PASSED IN APPEAL NO.0371/2017-18/CIT(A)-5, INVOLVING PROCEEDI NGS U/S.144 R.W.S.147 OF THE INCOME TAX ACT, 1961 [IN SHO RT, THE ACT]. CASE CALLED TWICE. NONE APPEARED AT ASSESSEES BEHE ST. HE IS ACCORDINGLY PROCEEDED EX-PARTE. 2. IT TRANSPIRES AT THE OUTSET THAT THIS ASSESSEES INSTANT APPEAL SUFFERS FROM 27 DAYS DELAY STATED TO BE ATTRIBUTAB LE TO THE REASON(S) BEYOND HIS CONTROL AS PER CONDONATION ITA NO. 2112/HYD/2018 :- 2 -: PETITION/AFFIDAVIT DT.20-02-2019. NO REBUTTAL HAS COME F ROM THE DEPARTMENTAL SIDE. THE IMPUGNED DELAY IS CONDONED THEREFORE. 3. THE ASSESSEE HAS RAISED THE FOLLOWING SUBSTANTIVE GROUNDS IN THE INSTANT APPEAL: 1. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN PASSING EX-PARTE ORDER DISM ISSING THE APPEAL WITHOUT GIVING ANY FURTHER OPPORTUNITY OF BEING HEA RD AFTER THE SPECIFIED DATE. 2. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN RELYING UPON THE A.OS ORDE R CONFIRMING THE ADDITION OF RS.15,61,609/- BEING THE CAPITAL GAIN A RRIVED BY CONSIDERING THE MARKET VALUE OF THE PROPERTY OF RS. 30,56,000/- (ASSESSEES SHARE BEING 50%), WHEREAS THE PROPERTY WAS SOLD VIDE DOCUMENT NO 286/2010 REGISTERED WITH SRO, KUKATPALL Y FOR AN AMOUNT OF RS.17,12,000/- (ASSESSEES SHARE BEING 50 % I.E., 8,56,000/-). THE LEARNED COMMISSIONER OF INCOME TA X (APPEALS) ERRED IN CONFIRMING THE TOTAL ADDITION OF CAPITAL G AIN WITHOUT VERIFYING THE DETAILS. 3. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED BY RELYING UPON THE A.OS ORDE R FOR NOT CONSIDERING THE INVESTMENT MADE IN RESIDENTIAL PROP ERTY, DURING THE SAID YEAR, FOR CLAIMING THE EXEMPTION U/S.54, FROM CAPITAL GAINS. 4. WE NOTICE AT THE OUTSET WITH THE ABLE ASSISTANCE FROM TH E REVENUES SIDE THAT BOTH THE LEARNED AUTHORITIES HAVE PROCEEDED TO INVOKE SECTION 50C FOR MAKING LONG TERM C APITAL GAIN ADDITION OF RS.25,20,247/- INVOLVING THE ASSESS EES HALF SHARE COMING TO RS.12,60,124/-. THERE IS NO DISPUTE QUA THE BASIC FACT THAT THE ASSESSEE HAD INDEED TRANSFERRED CAP ITAL ASSET I.E., AN AREA MEASURING 400 SQ. YDS., FROM PLO T NO.14 AND 28 SQ. YDS., FROM PLOT NO.15; IN THE RELEVANT PREVIOUS YEAR (SITUATED IN FATHE NAGAR VILLAGE, BALA NAGAR MANDAL, KUKATPALLY, HYDERABAD) VIDE SALE DOCUMENT NO.286/2010 FOR A CONSIDERATION OF RS.17,12,000/- AS AGAINST SRO PRICE OF ITA NO. 2112/HYD/2018 :- 3 -: RS.30,56,000/-. AND ALSO THAT NEITHER OF THE LEARNED LOWER AUTHORITIES MADE SECTION 50C(2) STATUTORY REFERENCE TO THE DVO HELD TO BE MANDATORY AS PER HON'BLE CALCUTTA HIGH COURTS DECISION SUNIL KUMAR AGARWAL VS. CIT (2014) [372 IT R 83] (CAL). 5. LEARNED DEPARTMENTAL REPRESENTATIVES ONLY ARGUMENT IS THAT NO SUCH PLEA HAD BEEN RAISED FROM THE ASSESSEES SIDE BEFORE THE LOWER AUTHORITIES. 6. WE FIND NO MERIT IN THE INSTANT ARGUMENT SINCE THE SAM E ALREADY STAND DECLINED IN THE FOREGOING JUDICIAL PREC EDENT. WE ACCORDINGLY ACCEPT THE ASSESSEES TWIN SUBSTANTIVE GR IEVANCES FOR STATISTICAL PURPOSES AND DIRECT THE ASSESSING OFFICE R TO PROCEED AFRESH AS PER LAW IN ABOVE TERMS. 7. THIS ASSESSEES APPEAL IS TREATED AS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH MAY, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S.S.G ODARA) ACCOUNTANT MEMBER JUDICIAL MEM BER HYDERABAD, DATED: 11-05-2021 TNMM ITA NO. 2112/HYD/2018 :- 4 -: COPY TO : 1.KAMLESH KANODIA, VILLA NO.93, SAPALY MEADOWS, GUNDLAPOCHAMPALLY, MEDCHAL, HYDERABAD. 2.THE INCOME TAX OFFICER, WARD-11(2), HYDERABAD. 3.CIT(APPEALS)-5, HYDERABAD. 4.PR.CIT-5, HYDERABAD. 5.D.R. ITAT, HYDERABAD. 6.GUARD FILE.