Income Tax Officer, Ward-11(1), Hyderabad V. Rajendra Prasad Gadda Babu, Hyderabad

ITA 2253/Hyd/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1692 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2021
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 16-03-2021
• Assessment Year: 2007-2008
• Appeal Filed On: 05-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 143(3); 2(14); 153C; 147

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD (THROUGH VIRTUAL HEARING) BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NO. 2253/HYD/2018 A.Y. 2007 - 08 INCOME TAX OFFICER, WARD - 11(1), HYDERABAD. VS. SRI RAJENDRA PRASAD GADDE BABU, HYDERABAD. PAN: AAEPR 7281 C (APPELLANT) (RESPONDENT) ASSESSEE BY SRI K.C. DEVDAS REVENUE BY SHRI SUNIL KUMAR PANDEY, DR DATE OF HEARING: 16/3/2021 DATE OF PRONOUNCEMENT: 30 /6/2021 ORDER PER A. MOHAN ALANKAMONY , A.M: THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) - 5, HYDERABAD IN APPEAL NO. 0011/2017 - 18/CIT(A) - 5, DATED 28/09/2018 PASSED U/S. 143(3) R.W.S 254 AND U/S. 250(6) OF THE ACT FOR THE A.Y. 2007 - 08. 2. THE REVENUE HAS RAISED SIX GROUNDS IN HIS APPEAL HOWEVER THE CRUX OF THE ISSUE IS THAT : 2 T HE LD. CIT (A) HAS DELETED THE ADDITION MADE BY THE LD. AO BY STATING THAT THE LAND SOLD BY THE ASSESSEE IS AGRICULTURAL LAND AS DEFINED IN SECTION 2(14) OF THE ACT AND THEREFORE, ANY GAINS ARISING OUT OF THE SALE OF THE AGRICULTURAL LAND IS EXEMPT FROM THE TAX. 3. FURTHER, THE ASSESSEE HAS RAISED THREE ADDITIONAL GROUNDS IN HIS APPEAL FOR THE FIRST TIME HOWEVER, THE ONLY GROUND EMANATING FROM THE SAME IS THAT : T HE LD. AO HAS ERRED IN REOPENING THE ASSESSMENT U/S. 147 OF THE ACT AS THE PROCEEDINGS OUGHT TO HAVE BEEN INITIATED U/S. 153C OF THE ACT. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE PROFESSION AS CINE ARTIST. THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE AY 2007 - 08 ON 31/10/2007 ADMITTING TOTAL INCOME OF RS. 9,10,570/ - . THEREAFTER, THE CASE WAS SELEC TED FOR SCRUTINY AND THE ASSESSMENT WAS COMPLETED U/S. 143(3) R.W.S 147 OF THE ACT ON 21/3/2014 DETERMINING THE TOTAL INCOME AT RS. 3,04,21,818/ - . ON APPEAL, THE LD. CIT (A) - IV, CHENNAI VIDE HIS ORDER DATED 29/4/2019 IN ITA NO. 1129/13 - 14 DELETED THE ADDIT ION MADE BY THE LD. AO OF RS. 2,95,11,245/ - . FURTHER, ON APPEAL BY THE REVENUE, THE CHENNAI BENCH OF THE TRIBUNAL IN ITA NO. 2354/MDS/2014 REMITTED BACK THE MATTER TO 3 THE FILE OF THE LD. AO FOR DE - NOVO CONSIDERATION. WHEN THE MATTER CAME UP BEFORE THE LD. AO ONCE AGAIN THE ASSESSEE FAILED TO APPEAR BEFORE THE LD. AO AND THEREFORE, THE LD. AO ONCE AGAIN ASSESSED THE INCOME OF THE ASSESSEE BY MAKING ADDITION OF RS. 2,91,11,245/ - VIDE HIS ORDER DATED 28/12/2016. 5. ON APPEAL, THE LD. CIT (A) CALLED FOR A REMAND REPORT FROM THE LD. AO . SINCE IN THE REMAND REPORT THE LD. AO HAD OPINED THAT THE LAND IS SITUATED BEYOND 8 KMS FROM THE MUNICIPALITY LIMITS AND SINCE THE LAND IN THE ADJOINING SURVEY NO. , WAS HELD TO BE AGRICULTURAL LAND BY THE ITAT, HYDERABAD BEN CH OF THE TRIBUNAL THE LD. CIT (A) TREATED THE LAND SOLD BY THE ASSESSEE ALSO TO BE AGRICULTURAL LAND AND DELETED THE ADDITION MADE BY THE LD. AO BASED ON THE PREMISES THAT THE TRANSACTION IS NOT IN THE NATURE OF BUSINESS ACTIVITY. 6. THE LD. DR VEHEMENT LY ARGUED BY STATING THAT THE TRANSACTION MADE BY THE ASSESSEE IS ADVENTURE IN THE NATURE OF TRADE AND ALSO THE LAND SOLD BY THE ASSESSEE IS NOT AGRICULTURAL LAND. IT WAS ALSO SUBMITTED THAT THE LD. AO DID NOT HAVE PROPER OPPORTUNITY TO EXAMINE THE CASE OF THE ASSESSEE BECAUSE THE ASSESSEE FAILED TO APPEAR BEFORE THE LD. AO. 7. ON THE OTHER HAND, THE LD. AR VEHEMENTLY ARGUED IN SUPPORT OF THE ORDER OF THE LD. CIT (A) AND PLEADED FOR CONFIRMING THE SAME. HE 4 FURTHER ARGUED BY STATING THAT THE REOPENING OF THE ASSESSMENT U/S. 147 WAS BAD IN LAW. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. FROM THE FACTS OF THE CASE, IT IS EVIDENT THAT THE ASSESSEE HAD NOT CO - OPERATED BEFORE THE LD. AO IN HIS PROCEEDINGS. FURTHER, EVEN BEFORE THE LD. CIT (A) NO EVIDENCE IS PRODUCED FROM THE REVENUE RECORD TO SUGGEST THAT THE LAND SOLD BY THE ASSESSEE IS AGRICULTURAL LAND. MOREOVER, THE LD. AR HAS RAISED AN ADDITIONAL GROUND ON JURISDICTION FOR THE FIRST TIME A T THIS STAGE WHEN THE MATTER IS ALREADY IN THE SECOND INNINGS. IN THIS SITUATION, WE ARE OF THE CONSIDERED VIEW THAT THE ENTIRE MATTER IS REQUIRED TO BE RE - VISITED BY THE LD. AO AFRESH FOR DE - NOVO CONSIDERATION. THEREFORE, IN THE INTEREST OF JUSTICE, WE HEREBY REMIT THE ENTIRE MATTER BACK TO THE FILE OF THE LD. AO FOR FRESH CONSIDERATION GRANTING LIBERTY TO THE ASSESSEE TO FILE ANY ADDITIONAL EVIDENCE IN ORDER TO SUBSTANTIATE HIS CLAIM. 9. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICA L PURPOSES AS INDICATED HEREIN ABOVE. 10. BEFORE PARTING, IT IS WORTHWHILE TO MENTION THAT THIS ORDER IS PRONOUNCED AFTER 90 DAYS OF HEARING THE APPEAL, WHICH IS THOUGH AGAINST THE USUAL NORMS, WE FIND IT APPROPRIATE, TAKING INTO CONSIDERATION OF THE 5 EXTRA - ORDINARY SITUATION IN THE LIGHT OF THE LOCK - DOWN DUE TO COVID - 19 PANDEMIC. WHILE DOING SO, WE HAVE RELIED IN THE DECISION OF MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. JSW LTD. IN ITA NO.6264/M/2018 AND 6103/M/2018 FOR AY 2013 - 14 ORDER DATE D 14TH MAY 2020. PRONOUNCED IN THE OPEN COURT ON THE 30 TH JUNE, 2021. SD/ - SD/ - (P. MADHAVI DEVI) ( A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 30 TH JUNE , 2021. OKK COPY TO: - 1) SRI RAJENDRA PRASAD GADDE BABU, VILLA NO.226, INDU FORTUNE FIELDS, KPHB PHASE - 13, KUKATPALLY, HYDERABAD. 2) THE INCOME TAX OFFICER, WARD - 11(1), R.NO. 1006, 10 TH FLOOR, SIGNTURE TOWERS, KONDAPUR, HYDERABAD 500 084. 3) THE CIT(A) - 5, HYDERABAD. 4) THE PR. CIT - 5, HYDERABAD. 5) THE DR, ITAT, HYDERABAD 6) GUARD FILE