Shanthi Yalamanchi , Hyderabad V. Income Tax Officer, (International Taxation)-II, Hyderabad

ITA 2277/Hyd/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6455 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 21-11-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 06-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K RAVIKIRAN
• Keywords: Sale consideration of property below Jantri Value; Valuation report
• Section: 142(1); 234B; 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A - SMC, HYDERABAD BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NO.2277/HYD/2018 ASSESSMENT YEAR: 2008 - 09 SMT. SHANTI YALAMANCHI, HYDERABAD. PAN: AAEPY 9106 F VS. INCOME TAX OFFICER, (INTERNATIONAL TAXATION) - II, HYDERABAD. (APPELLANT) (RESPONDENT) ITA NO.2278/HYD/2018 ASSESSMENT YEAR: 2008 - 09 SMT. KRANTHI YALAMANCHI, HYDERABAD. PAN: AAEPY 1645 H VS. INCOME TAX OFFICER, (INTERNATIONAL TAXATION) - II, HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: SMT. S. SANDHYA REVENUE BY: SRI K. RAVI KIRAN, DR DATE OF HEARING: 21/11/2019 DATE OF PRONOUNCEMENT: 05 / 0 2/20 20 ORDER THESE TWO APPEALS ARE FILED BY THE ASSESSEES AGAINST THE ORDERS OF THE LD. CIT(A) - 10, HYDERABAD IN APPEAL NO S: 0174 AND 0176/CIT(A) - 10/2016 - 17 BOTH DATED: 24/09/2018 FOR THE ASSESSMENT YEAR 2008 - 09. SINCE BOTH THE APPEALS ARE BY RELATED PARTIES ON THE IDENTICAL ISSUE, THEY ARE HEARD TO GETHER AND DISPOSED OFF BY THIS COMMON ORDER. 2 2. THE ASSESSEES HAVE RAISED IDENTICAL GROUNDS IN THEIR RESPECTIVE APPEALS AND FOR REFERENCE THEY ARE EXTRACTED HEREIN BELOW: 1. THE ORDER OF THE LD. CIT (A) IS ERRONEOUS BOTH ON FATS AND IN LAW. 2. THE LD CIT (A) OUGHT TO HAVE HELD THAT NEITHER THE NOTICE U/S. 148 NOR THE NOTICE U/S. 142(1) WERE SERVED ON THE APPELLANT AND THAT THEREFORE THE ASSESSMENT IS NOT VALID. 3. THE LD CIT (A) OUGHT TO HAVE CONSIDERED THE FACT THAT AN ASSESSMENT MADE U/S. 144 WITHOUT SE RVING NOTICE U/S. 142(1) IS NOT VALID AND THAT THE ASSESSMENT MADE BY THE AO OUGHT TO HAVE BEEN HELD AS VALID. 4. THE LD. CIT (A) ERRED IN CONFIRMING THE ACTION OF THE AO IN DETERMINING THE SHARE OF CAPITAL GAIN OF THE APPELLANT AT RS. 13,44,436/ - . THE LD CIT (A) OUGHT TO HAVE HELD THAT THE PROVISIONS OF SECTION 50C(1) ARE NOT APPLICABLE TO THE PECULIAR CIRCUMSTANCES OBTAINED IN THE INSTANT CASE. 5. THE LD CIT (A) OUGHT TO HAVE CONSIDERED THE FACT THAT THE PROPERTY WAS APPROPRIATED AGAI NST THE LOAN TAKEN BY HER FATHER OF RS. 3,25,000/ - IN THE YEAR 1993 AND THE APPELLANT DID NOT RECEIVE ANY CONSIDERATION AND THE WHOLE CONSIDERATION IS LIKE APPROPRIATION OF PROPERTY AGAINST MORTGAGE. 6. THE LD. CIT (A) OUGHT TO HAVE CONSIDERED THE FACT THA T THE APPELLANT INHERITED THE PROPERTY ALONG WITH LIABILITY AND THAT THE APPELLANT DID NOT DERIVE AY GAIN IN THE PROCESS AS THE ENTIRE PROPERTY INHERITED WAS APPROPRIATED AGAINST THE LIABILITY TOWARDS LOAN AND THEREFORE THE LD CIT (A) OUGHT TO HAVE HELD TH AT NO CAPITAL GAIN ARISE TO THE APPELLANT. 7. THE LD CIT (A) ERRED IN CONFIRMING LEVY OF INTEREST U/S. 234A AND 234B OF THE IT ACT. 3. THE BRIEF FACTS OF THE CASE ARE THAT BOTH THE ASSESSEES FAILED TO FILE THE IR RETURN OF INCOME AND SUBSEQUENTLY INFORMAT ION WAS RECEIVED FROM THE DIRECTOR OF INCOME TAX (I & CI) HYDERABAD THAT BOTH THE SE ASSESSEES HAVE JOINTLY SOLD THEIR RESIDENTIAL PROPERTY ALONG WITH ANOTHER INDIVIDUAL. HENCE THE CASES WERE TAKEN UP FOR SCRUTINY. THEREAFTER, THE ASSESSMENT WAS COMPLETED U/S. 144 R.W.S 147 OF THE ACT ON 30/02/2016 BECAUSE NEITHER THE ASSESSEE S NOR THEIR REPRESENTATIVES 3 APPEARED BEFORE THE LD. AO, WHEREIN THE LD. AO ASSESSED THE LTCG OF RS. 59,77,745 IN THE HANDS OF EACH OF THE ASSESSEES. THEREAFTER, ON APPEAL, THE LD. CIT (A) DISMISSED THE APPEAL S OF THE ASSESSEE S ON MERITS. 4. THE LD. AR VEHEMENTLY ARGUED BEFORE US BY STATING THAT THE REVENUE HAD NOT OBTAINED VALUATION REPORT FROM THE STAMP VALUATION AUTHORITY OF THE ST ATE GOVERNMENT DESPITE OF THE ASSESSES REQUEST BEFORE THE LD. CIT (A). THE LD. AR FURTHER SUBMITTED THAT THE ASSESSEE S COULD NOT EFFECTIVELY PURSUE THE APPEAL BEFORE THE LD. REVENUE AUTHORITIES ON THE EARLIER OCCASION BECAUSE THEY WERE NAIVE AS THEY WERE NEVER ASSESSED TO TAX EARLIER DUE TO MEAGRE INCOME . IT WAS THEREFORE PLEADED THAT ONE MORE OPPORTUNITY MAY BE PROVIDED TO THE ASSESSEE S SO THAT ASSESSMENT CAN BE COMPLETED JUDICIOUSLY BY CONSIDERING THE VALUATION OF THE STAMP VALUATION AUTHORITY OF THE S TATE GOVERNMENT. THE LD. DR OBJECTED TO THE SUBMISSION OF THE LD.AR AND REQUESTED FOR CONFIRMING THE ORDERS OF THE LD. REVENUE AUTHORITIES. 5. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. FROM THE FACTS OF THE CASE IT APPEARS THAT THE ASSESSEES WERE IGNORANT ABOUT THE INCOME TAX PROCEEDINGS AS THEY NEVER HAD AN OPPORTUNITY EARLIER TO ASSESS THEIR INCOME BECAUSE THEIR INCOME WAS BELOW TAXABLE LIMIT. IT IS ALSO APPARENT THAT THE ASSESSEES HAD MISSED THE OPPORTUNITY TO REQUEST THE LD.AO TO CALL FOR VALUATION REPORT FROM THE STAMP VALUATION AUTHORITY OF THE STATE GOVERNMENT BECAUSE THE LD. AO HAD PASSED EX - PARTE ORDER DUE TO NON - APPEARANCE . 4 THEREFORE, CONSIDERING THE FACTS AND C IRCUMSTANCES OF THE CASE AND PLIGHT OF THE ASSESSEES AND THE NATURE OF INCOME ASSED, IN THE INTEREST OF JUSTICE, I HEREBY REMIT THE MATTER BACK TO THE FILE OF THE LD. AO FOR FRESH CONSIDERATION AND TO PASS APPROPRIATE ORDER IN ACCORDANCE WITH LAW AND MERIT AFTER OBTAINING AND CONSIDERING THE VALUATION REPORT OF THE STAMP VALUATION AUTHORITY OF THE STATE GOVERNMENT AND BY PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE S OF BEING HEARD. 6. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEES ARE ALLOWED FOR STATISTI CAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 05 TH FEBRUARY, 2020. SD/ - ( A. MOHAN ALANKAMONY ) ACCOUNTANT MEMBER HYDERABAD, DATED: 05 TH FEBRUARY, 2020 OKK COPY TO: - 1) (I) SMT SHANTI YELAMANCHI (II) SMT. KRANTHI YELAMANCHI, S.V. RAO ASSOCIATES, CHARTERED ACCOUNTANTS, S.V. SQUARE, 1 ST FLOOR, 8 - 2 - 293/82/A/796 - B, ROAD NO.36, JUBILEE HILLS, HYDERABAD. 2) INCOME TAX OFFICER (INTERNATIONAL TAXATION) - II, AAYAKAR BHAVAN, BASHEERBAGH, HYDERABAD. 3) THE CIT(A) - 10 , HYDERABAD 4) THE CIT (IT & TP) HYDERABAD 5) THE CHIEF COMMISSIONER OF INCOME TAX (IT) (SZ), BENGALURU. 6 ) THE DR, ITAT, HYDERABAD 6) GUARD FILE