Farida Alladin, Hyd, Hyderabad V. ACIT, Circle-6(1), Hyderabad, Hyderabad

ITA 224/HYD/2016

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3414 (ITAT-HYDERABAD)
• Duration Of Justice: 3 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 25-11-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 29-02-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NILANJAN DEY
• Assessee Lawyers: V SIVA KUMAR A RS; SS H C S SUBRAHMANYAM
• Keywords: Condonation of delay; Set aside; Capital Gains
• Section: 133A; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH : HYDERABAD BEFORE SHRI D.KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI V.DURGA RAO, JUDICIAL MEMBER ITA NO. 224 /HYD./2016 ASSESSMENT YEAR: 20 08 - 09 SMT. FARIDA ALLADIN VS. ACIT, CIRCLE 6(1) C/O M/S BHASKARA RAO & CO. CAS HYDERABAD 5 D, 5 TH FLOOR, KAUTILYA 6 - 3 - 652 SOMAJIGUDA HYDERABAD 500 082 PAN: AGCPA3314K (APPELLANT) (RESPONDENT) ASSESSEE BY : S/S H. C.S.SUBRAHMANYAM & V. SIVA KUMAR, A.R S . DEPARTMENT BY: SH. NILANJAN DEY, D.R. DATE OF HEARING : 25/11/19 DATE OF PRONOUNCEMENT : 25 /11/19 O R D E R PER V.DURGA RAO, J.M. TH IS IS ASSESSES APPEAL D IRECTED AGAINST THE ORDER PASSED BY LD.CIT(A) - IV , HYDERABAD DATED 25 .10.20 12 FOR A.Y. 20 08 - 09 . THERE IS A DELAY OF 1150 DAYS IN FILING THE APPEAL. THE ASSESSEE FILED AN AFFIDAVIT WHEREIN SHE HAS SUBMITTED AS UNDER: PETITION SEEKING CONDONATION OF DELAY IN FILING APPEAL. 1. I, FARIDA ALLADIN, HEREBY PRAY THE FOLLOWING FOR KIND CONSIDERATION OF THE HON'BLE INCOME TAX APPELLATE TRIBUNAL. ITA 224/HYD/2016 AY: 2008 - 09 SMT. FARIDA ALLADIN VS. ACIT, CIR.6(1) 2 2. AGGRIEVED BY THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)IV, HYDERABAD [C.I.T (APPEALS}] IN MY CASE FOR THE ASST.YEAR 2008 - 09, I HAVE FILED APPEAL BEFORE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL. 3. THE ORDER OF THE C.I.T(APPEALS) WAS RECEIVED ON 06 - 11 - 2012. DUE DATE FOR FILING APPEAL BEFORE THE HON'BLE INCOME TAX APPELLATE TRIBU NAL WAS 05 - 01 - 2013 AND SINCE IT WAS SATURDAY ON THAT DATE, THE APPEAL WAS TO BE FILED BY 07 - 01 - 2013. HOWEVER, APPEAL WAS FILED ON 29 - 02 - 2016, THE APPEAL WAS THUS FILED AFTER DELAY OF 1150 DAYS AS WORKED OUT HEREUNDER: DELAY FROM 07 - 01 - 2013 TO 31 - 12 - 2013 - 360 DAYS DELAY FROM 01 - 01 - 2014 TO 31 - 12 - 2015 - 730 DAYS DELAY FROM 01 - 01 - 2016 TO 29 - 02 - 2016 - 60 DAYS TOTAL NUMBER OF DAYS DELAY 1150 DAYS 3 . REPRESENTATION IN MY INCOME TAX MATTERS WAS BEI NG LOOKED AFTER BY A FIRM OF CHARTERED ACCOUNTANTS TILL EARLIER PART OF THE YEAR 2014. THEREAFTER THE WORK WAS ENTRUSTED TO ANOTHER FIRM OF CHARTERED ACCOUNTANTS. IN THE PROCESS OF HANDING OVER THE RELEVANT RECORDS TO THE NEWLY APPOINTED FIRM OF CHARTERED ACCOUNTANTS, MY INCOME TAX RECORD FOR THE ASST.YEAR 2008 - 09 WAS OMITTED TO BE HANDED OVER. DURING THE COURSE OF REVIEW OF PENDENCY IN THE CASE OF MY NEPHEW, IT CAME TO LIGHT THAT APPEAL BEFORE HON'BLE ITAT WAS NOT FILED IN MY CASE FOR ASST.YEAR 2008 - 4. AFTER SEARCH OF RECORDS IT CAME TO LIGHT THAT APPEAL PAPERS WERE PREPARED AND EVEN GOT SIGNED BY ME IN THE MONTH OF DECEMBER, 2012 BUT APPEAL WAS OMITTED TO BE FILED FOR REASONS NOT KNOWN TO ME. 5. THE DELAY IN FILING OF THE APPEAL BEFORE THE HON'BLE ITAT WAS CAUSED DUE TO LACK OF INFORMATION TO ME THAT THE APPEAL WAS NOT FILED EVEN AFTER OBTAINING MY SIGNATURES ON APPEAL FORMS COUPLED WITH THE FACT THAT I DID NOT KEEP TRACK OF THE PROGRESS OF MY INCOME TAX CASES AND ALSO OMITTED TO HAND OVER THE RECORD TO THE AUTHORIZED REPRESENTATIVE. 6. I AM AGED ABOUT 80 YEARS AND HAVE NOT BEEN KEEPING GOOD HEALTH FOR THE PAST SEVERAL YEARS. I AM SUFFERING FROM MULTIPLE SCLEROSIS WHICH HAS MADE ME DEPENDENT ON OTHERS EVEN FOR NORMAL CHORES. MY HEALTH CONDITION, BOTH P HYSICAL AND MENTAL, HAS ADDED TO THE PERPETRATION OF LAPSES WHICH ARE NOT WANTON. IN VIEW OF THE CIRCUMSTANCES NARRATED ABOVE, I PRAY BEFORE THE HONOURABLE INCOME TAX APPELLATE TRIBUNAL TO KINDLY CONDONE THE DELAY IN FILING THE APPEAL AND ADMIT THE APPEAL FOR ADJUDICATION ON MERITS. SD/ - (APPELLANT) ITA 224/HYD/2016 AY: 2008 - 09 SMT. FARIDA ALLADIN VS. ACIT, CIR.6(1) 3 3. WE HAVE GONE THROUGH THE AFFIDAVIT FILED BY ASSESSEE. WE FIND THAT SHE IS AGED ABOUT 8 0 Y EARS AND IS SUFFERING FROM MULTIPLE SCLEROSIS WHICH IS STATED TO BE INCURABLE DISEASE. SHE ALSO FILED A DOC TOR CERTIFICATE. WE HAVE ALSO GONE THROUGH THE ASSESSEES SISTER SMT. MANIZA JUMABHOYS CASE IN ITA 655/HYD/2014 FOR AY 2008 - 09 WHEREIN THE COORDINATE BENCH OF THIS TRIBUNAL HAS REMITTED THE MATTER BACK TO THE FILE OF AO TO EXAMINE WHETHER SMT.MANIZA JUM ABHOY HAS RECEIVED ANY SALE CONSIDERATION AND DIRECTED THE AO TO DECIDE THE ISSUE IN ACCORDANCE WITH LAW. IT WAS ALSO SUBMITTED THAT SINCE ASSESSEES CASE ALSO IS SIMILARLY PLACED, THE DELAY MAY KINDLY BE CONDONED. AFTER GOING THROUGH THE MATERIAL PLACE D ON RECORD, WE ARE OF THE OPINION THAT THERE IS SUFFICIENT CAUSE TO CONDONE THE DELAY IN FILING THE APPEAL, THEREFORE, WE CONDONE THE DELAY. 4. SO FAR AS MERITS OF THE CASE IS CONCERNED, THERE WAS A SURVEY OPERATION U/S 133A OF THE I.T.ACT, 1961 IN THE CASE OF SRI KARIM NAWAZ ALLADIN, NEPHEW OF THE ASSESSEE ON 11.3.2010. IT WAS NOTICED DURING THE SURVEY THAT THE ASSESSEE ALONG WITH SHRI KARIM NAWAZ ALLADIN AND HIS SISTER SMT.MANIZA JUMABHOY HAD SOL D THE FOLLOWING PROPERTIES THROUGH THE REGISTERED AGREEMENTS OF SALE - CUM - IRREVOCABLE GENERAL POWER OF ATTORNEY DT. 27.6.2007. THE DETAILS OF THE PROPERTIES SOLD ARE AS UNDER. SL. NO. DOCUMENT NO. NAME OF PURCHASER DESCRIPTION OF PROPERTY CONSIDERATION AS PER REGISTERED SALE DEED MARKET VALUE OF THE PROPERTY AS PER SRO RS. 01 1814/2007 M/S SUNRISE BUILDERS AND DEVELOPERS 1000 SQ.YARDS OF LAND WITH 120 SFT. BUILT UP AREA LOCATED IN MUNICIPAL NO.7 - 2 - 1739 P ART IN SY.NO.60/5/2, CZECH COLONY, SANATHNAGAR, HYDERABAD 44,18,000 2,00,27,600 02 1815/2007 M/S SUNRISE BUILDERS AND DEVELOPERS - DO - 40,40,000 2,00,28,000 TOTAL: 84,58,000 84,58,000 4,00,55,600 ITA 224/HYD/2016 AY: 2008 - 09 SMT. FARIDA ALLADIN VS. ACIT, CIR.6(1) 4 SINCE THE ASSESSEE HAD NOT DECLAR ED THE CAPITAL GAINS ARISING ON THE ABOVE TRANSACTIONS, THE AO ISSUED NOTICE U/S 148 OF THE I.T.ACT, 1961 ON 28.12.2010. THE ASSESSEE HAD FILED RETURN OF INCOME ON 11.11.2011 ADMITTING TOTAL INCOME OF RS.2,52,250/ - . HOWEVER, CAPITAL GAINS ARISING ON THE ABOVE TRANSACTIONS ARE NOT ADMITTED IN THE RETURN. THE ASSESSEE HAD SUBMITTED BEFORE THE AO THAT THE PROPERTIES IN QUESTION DID NOT BELONG TO HER AND THAT SHE HAD SINGED AS A AGPA MERELY AS A CONSENTING PARTY. THE AO HAS NOT AGREED WITH HER SUBMISSIONS. AO HAS APPLIED THE PROVISIONS OF SEC.50 C OF THE I.T. ACT, 1961 AND ASSESSED THE MARKET VALUE OF THE PROPERTY AT RS.4,00,55,600/ - AS AGAINST THE SALE CONSIDERATION SHOWN AT RS.84,58,000/ - AND ACCORDINGLY ASSESSED THE TOTAL INCOME AT RS.1,34,05,317/ - . ON AP PEAL THE CIT(A) CONFIRMED THE ORDER OF THE AO. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE LD.COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAS NOT RECEIVED ANY SALE CONSIDERATION AND SHE HAS SIGNED MERELY AS A CONSENTING PARTY. HE FURTHER SUBMITTED THAT IN THE CASE OF ASSESSEES SISTER THE COORDINATE BENCH OF ITAT IN ITA 655/2014 FOR AY 2008 - 09 VIDE ORDER DATED 7.11.2017 HAS SET ASIDE THE ORDER PASSED BY THE CIT(A) AND REMITTED BACK THE MATTER TO AO TO EXAMINE WHETHER THE ASSESSEE THEREIN HAS RECEIVED ANY CONSIDERATION AND THEREAFTER TO DECIDE THE ISSUE IN ACCORDANCE WITH LAW. FURTHER, LD.COUNSEL SUBMITTED THAT IN THIS CASE ALSO THE FACTS AND CIRCUMSTANCES BEING THE SAME, THE ISSUE MAY KINDLY BE REMITTED BACK TO THE A.O. 6. ON THE OTHER HAND LD.DR RELIED ON THE ORDERS OF AUTHORITIES BELOW. 7. WE HAVE HEARD BOTH THE SIDES AND PERUSED MATERIAL PLACED ON RECORD AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE CASE OF THE ASSESSEE IS THAT ASSESSEE HAS NOT RECEIVED ANY SALE CONSIDERATION AND HAD SIMPLY SIGNED AS A CONSENTING PARTY, T HEREFORE, SHE DID NOT DECLARE ANY CAPITAL GAINS IN THE RETURN OF INCOME. HOWEVER, THE AO AS WELL AS THE CIT(A) DID NOT AGREE AND ASSESSED CAPITAL GAINS IN THE HANDS OF THE ASSESSEE. UNDER SIMILAR ITA 224/HYD/2016 AY: 2008 - 09 SMT. FARIDA ALLADIN VS. ACIT, CIR.6(1) 5 CIRCUMSTANCES, ASSESSEES SISTER HAD ALSO SIGNED THE DOCUM ENTS ALONG WITH THE ASSESSEE AND IN HER CASE THE MATTER HAS BEEN REMITTED BACK TO THE FILE OF AO TO CONSIDER WHETHER ASSESSEES SISTER HAD RECEIVED ANY SALE CONSIDERATION AND TO DECIDE THE ISSUE IN ACCORDANCE WITH LAW. WE FIND THAT THE ASSESSEE HEREIN IS ALSO SIMILARLY PLACED, AND THEREFORE, THE ASSESSEES APPEAL ALSO HAS TO BE DECIDED ON THE LINES OF ASSESSEES SISTER. WE THEREFORE SET ASIDE THE ORDER PASSED BY CIT(A) AND REMIT THE ISSUE BACK TO THE AO TO DECIDE THE ISSUE IN THE LINE OF THE DIRECTIONS GI VEN BY THE COORDINATE BENCH OF ITAT IN ITA 655/2014 FOR AY 2008 - 09 DATED 7.11.2017 AND DECIDE IN ACCORDANCE WITH LAW (COPY OF WHICH IS ENCLOSED HEREWITH). 8 . IN THE RESULT, THE APPEAL FILED BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUN CED IN OPEN COURT ON 25 TH NOVEMBER, 2019. SD/ - SD/ - (D. KARUNAKARA RAO) (V DURGA RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 25 TH NOVEMBER, 2019. * GMV CO PY FORWARDED TO: 1. SMT. FARIDA ALLADIN, C/O M/S M.BHASKARA RAO & CO. CAS, 5D, 5 TH FLOOR, KAUTILYA 6 - 3 - 652, SOMAJIGUDA, HYDERABAD 500 082. 2 . ACIT, CIRCLE 6 (1), HYDERABAD. 4. CIT (A) - IV , HYD ERABAD . 5. CIT - III , HYDERABAD 6. D.R. ITAT HYDERABAD 7. GUARD FILE // C O P Y // ITA 224/HYD/2016 AY: 2008 - 09 SMT. FARIDA ALLADIN VS. ACIT, CIR.6(1) 6 1. DRAFT DICTATED ON 25/11/19 2. DRAFT PLACED BEFORE THE AUTHOR 26/11/19 3. DRAFT PLACED BEFORE THE SECOND MEMBER 4. DRAFT APPROVED BY SECOND MEMBER 5. APPROVED DRAFT COMES TO SRPS 6. KEPT FOR PRONOUNCEMENT 7. FILE SENT TO BENCH CLERK