Oruganti Sridhar Sravan (Legal Heir of Late O.V.Sridhar), Chittoor V. Income Tax Officer, Ward-1, Chittoor

ITA 2182/Hyd/2018

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 6380 (ITAT-HYDERABAD)
• Duration Of Justice: 3 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Assessment Year: 2014-2015
• Appeal Filed On: 14-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD ‘ A ‘ BENCH, HYDERABAD. BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI S.S. GODARA, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCE) ITA Nos.2182 & 2183/Hyd/2018 (Assessment Year : 2014-15) 1. Shri Oruganti Sridhar Sravan (Legal Heir of Late O.V. Sridhar), Chittoor. PAN AABPO5325P 2. Shri O.V. Ramesh Babu, Chittoor. PAN AABPO5329 Vs. Income Tax Officer, Ward-1, Chittoor. Appellant Respondent Appellants By : Shri Joshitha Jothi (A.R.) Respondent By : Shri Sunil Gowtham (D.R.) Date of Hearing : 08.12.2021. Date of Pronouncement : 15.12.2021. O R D E R Per Shri S.S. Godara, J.M. : These assessee’s appeals for Asst. Year 2014-15 arise from the Commissioner of Income Tax (Appeals), Tirupati’s order both dt.5.9.2018 passed in case Nos.10129/2017-18/CIT(A)/TPT and 2 ITA No.2182 & 2183/Hyd/2018 10128/2017-18/CIT(A)/TPT in proceedings under Section 143(3) r.w.s. 147 of Income Tax Act, 1961 (‘the Act’). Heard both the parties. Case file perused. 2. First we take up ITA No.2182/Hyd/2018 as the “lead” case involving identical grounds of appeal. We advert to former assessee’s first and foremost substantive ground challenge correctness of both the learned lower authorities’ action making Long Term Capital Gains (LTCG) addition of Rs.1,40,84,989 on account of transfer of capital asset as follows : 3 ITA No.2182 & 2183/Hyd/2018 4 ITA No.2182 & 2183/Hyd/2018 5 ITA No.2182 & 2183/Hyd/2018 3. Both the learned representatives reiterated their respective stands against and in support of CIT(A)’s foregoing detailed discussion treating the assessee's capital asset to have transferred u/s.2(47) of the Act. Learned department representative has also quoted a catena of case laws (supra). His case is that the CIT(A) has rightly held the assessee to have transferred the capital asset by way of a Joint Development Agreement (JDA). 4. We find no merit in the Revenue’s stand per se. This is for the reason that the assessee's JDA (registered document) itself made it clear that the possession in issue was not in the nature of part performance u/s.53A of the Transfer of Properties Act or u/s.2(47) (iv) of the Act. Coupled with this, learned lower authorities have nowhere made out a case as to which limb of section 2(47) (i) – (iv) defining “transfer” comes into operation in the given facts before us. We wish to observe here that in such an instance when both the vendor and vendee parties are resorting to a written agreement thereby incorporating all the corresponding clauses therein, there is no scope left for any kind of inference to be drawn therefore. Coming to the Revenue’s reliance placed on hon’ble jurisdictional high court decision in Kotla Nageswara Rao (supra), we note that 6 ITA No.2182 & 2183/Hyd/2018 their lordships have found the assessee to have completed “part performance” u/s. 53A of Transfer of Property Act as against the facts involved go not contrary to the same. We, therefore, conclude that both the learned lower authorities have erred in treating the assessee’s JDA as transfer despite the clear cut stipulation to the contrary therein in above terms. The impugned addition of long term capital gain addition of Rs.1,40,85,989 stands deleted. This former assessee's “lead” appeal ITA No.2182/Hyd/2018 succeeds. 5. Same order to follow in the latter assessee's appeal ITA 2183/Hyd/2018 since involving identical question on law and facts. 4. These two assessees’ appeals are allowed in above terms. A copy of this common order be placed in the respective case files. Order pronounced in the open court on 15th Dec., 2021. Sd/- Sd/- (A.MOHAN ALANKAMONY) (S.S. GODARA) Accountant Member Judicial Member Hyderabad, Dt.15.12.2021. * Reddy gp 7 ITA No.2182 & 2183/Hyd/2018 Copy to : 1. 1. Shri O.V. Sridhar Sravan (Legal Heir of O.V. Sridhar), D.No.12-137, Bazaar Street, Chittoor-517 001 2. Shri O.V. Ramesh Babu, D.No.12-137, Bazaar Street, Chuittoor-517 001 2. ITO, Ward-1, Chittoor. 3. Pr. C I T, Tirupati. 4. CIT(Appeals), Tirupati. 5. DR, ITAT, Hyderabad. 6. Guard File. By Order Sr. Pvt. Secretary, ITAT, Hyderabad.