Gokul Prasad Patel , Hyderabad V. Income Tax Officer, Ward-13(3), Hyderabad

ITA 2230/Hyd/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5278 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 20-09-2021
• Assessment Year: 2004-2005
• Appeal Filed On: 29-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROHIT MUJUMDAR SRIKANTH
• Keywords: Gift; Capital Gains
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD (THROUGH VIDEO CONFERENCING) BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ITA NO.2230/HYD/2018 ASSESSMENT YEAR: 2004-05 GOKUL PRASAD PATEL, H.NO.5-8-569, STREET NO.9, MUBARAK BAZAR LANE, ABID ROAD, HYDERABAD 500001. PAN : ABKPP2201R. VS. THE INCOME TAX OFFICER, WARD 13(3), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: NONE. REVENUE BY : SHRI ROHIT MUJUMDAR FOR SRIKANTH DR. DATE OF HEARING: 20/09/2021 DATE OF PRONOUNCEMENT: 24/09/2021 O R D E R PER BENCH : THIS ASSESSEES APPEAL FOR AY.2004-05 ARISES FROM T HE CIT(A)-1, HYDERABADS ORDER DATED 27.08.2018 PASSED IN CASE NO.0083/CIT(A)-1,HYD/2017-18/2018-19 INVOLVING PROC EEDINGS U/S. 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 [IN SHORT, THE ACT]. CASE CALLED TWICE. NONE APPEARS AT ASSESSEES BEHE ST. IT IS ACCORDINGLY PROCEEDED EX-PARTE. 2. THE ASSESSEE RAISES THE FOLLOWING SUBSTANTIVE GR OUNDS IN THE INSTANT APPEAL. ITA NO.2230/HYD/2018 2 1. THE ORDER OF THE LEARNED CIT(APPEALS)-1, HYDERAB AD IS AGAINST LAW, WEIGHT OF EVIDENCE AND PROBABILITIES OF THE CA SE. 2. THE LEARNED CIT(A) GROSSLY ERRED IN UPHOLDING T HE IMPUGNED REASSESSMENT ORDER AND CONFIRMING THE CHARGING OF C APITAL GAINS TO TAX IN A.Y.2004-05 DESPITE THE FACT THAT THE ALL EGED TRANSFER OF PROPERTY DATED 31.10.2003 WAS HELD TO BE NULL AND V OID IN O.S.NO.28 OF 2004. CONSEQUENTLY, THE LEARNED CIT(A) COMMITTED A GROSS ERROR IN DISMISSING THE APPEAL ON THIS GROUND . 3. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE ALLEGED GIFT DEED WAS GOT CANCELLED BY A REGISTERED CANCELLATION DEED DATED 26.03.2002 AND CONSEQUENTLY THE ALLEGED TRANSFER CL AIMED TO GIVE RISE TO CHARGEABLE CAPITAL GAINS WAS NON EST IN THE EYES OF LAW. 4. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE APPELLANT HAD IN FACT PAID FULL CAPITAL GAINS TAX IN THE ASSESSMENT YEAR 2012-13 BECAUSE THE PROPERTY WAS ULTIMATELY TRANSFERRED FOR A COMPENSATION OF RS.40 LAKH BY VIRTUE OF A COMPROMIS E DECREE DATED 24.08.2011 IN O.S.NO.28/2004 IN THE COURT OF ADDL CHIEF JUDGE, CCC, SECUNDERABAD. CONSEQUENTLY, SHE ERRED I N CONFIRMING THE IMPUGNED REASSESSMENT. 5. THE APPELLANT PRAYS THAT THE IMPUGNED REASSESSME NT BE CANCELLED IN VIEW OF THE VOLUNTARY PAYMENT OF CAPIT AL GAINS TAX BY FILING THE RETURN BY THE APPELLANT FOR A.Y.2012-13 WHEN THE ACTUAL TRANSFER OF PROPERTY TOOK PLACE BY VIRTUE OF THE CO MPROMISE DECREE. 6. FOR THE ABOVE GROUNDS AND SUCH OTHER GROUNDS THA T MAY BE URGED AT THE TIME OF HEARING, THE APPELLANT PRAYS T HAT THE APPEAL BE ALLOWED. 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO REVENUES ARGUMENTS IN SUPPORT OF THE IMPUGNED LONG TERM CAPITAL GAINS ADDITION AND PERUSED THE CASE RECORDS . SUFFICE TO SAY, THE ASSESSEES AVERMENTS IN HIS ABOVE EXTRACTE D GROUNDS RAISES THE CLINCHING QUESTION THAT THE ALLEGED TRAN SFER OF PROPERTY HEREIN DT.31.10.2003 HAD NOT ONLY BE DECLARED NULL AND VOID IN LEARNED CIVIL COURT BUT ALSO THE VERY CAPITAL GAINS STOOD ASSESSED IN A.Y. 2012-13. THE SAME; IN OUR CONSIDERED OPINION R EQUIRES AFRESH FACTUAL VERIFICATION THEREFORE IN CONSEQUENTIAL PRO CEEDINGS. WE ITA NO.2230/HYD/2018 3 ORDERED ACCORDINGLY. IT IS MADE CLEAR THAT THE ASS ESSING OFFICER SHALL AFFORD THREE EFFECTIVE OPPORTUNITIES OF HEARI NG TO THE ASSESSEE REGARDING THE INSTANT FACTUAL VERIFICATION WHEREIN HE SHALL BE AT LIBERTY TO RAISE ALL FACTUAL AS WELL AS LEGAL OBJE CTIONS IN THE SECOND ROUND. ORDERED ACCORDINGLY. 4. THIS ASSESSEES APPEAL IS ALLOWED FOR STATISTICA L PURPOSES IN THE ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH SEPTEMBER,2021. SD/- SDSD SD/- SD/- (INTURI RAMA RAO) ACCOUNTANT MEMBER (S.S. GODARA) JUDICIAL MEMBER HYDERABAD, DATED 24 TH SEPTEMBER, 2021. TYNM / SPS COPY TO: S. NO ADDRESS ES 1 M GOKUL PRASAD PATEL, H.NO.5-8-569, STREET NO.9, MUB ARAK BAZAR LANE, ABID ROAD, HYDERABAD 500001. 2 T HE IN COME TAX OFFICER, WARD 13( 3), HYDERABAD. 3 THE CIT(A)-1, HYDERABAD. 4 THE PR.CIT(1), HYDERABAD. 5 DR, IT AT HYD ERABAD BEN CHES 6 GUARD FILE . BY ORDER