Sucharitha Bagayat , Hyderabad V. Asst. Commissioner of Income Tax, Circle-4(1), Hyderabad

ITA 249/Hyd/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0772 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 09-06-2020
• Assessment Year: 2012-2013
• Appeal Filed On: 25-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: P MURALI MOHAN RAO
• Keywords: Sale consideration of property below Jantri Value; Bonafide belief; Question of law; Competent authority
• Section: 143(3); 50C; 13; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NO.249/H/2019 ASSESSMENT YEAR: 2012 - 13 DR. SUCHARITHA BAGAYAT, HYDERABAD. PAN: ATHPB 0513 F VS. ACIT, CIRCLE - 4(1), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: SRI P. MURALI MOHAN RAO REVENUE BY: SRI RAVI BABU, DR DATE OF HEARING: 09/06/2020 DATE OF PRONOUNCEMENT: 09/06/2020 ORDER PER A. MOHAN ALANKAMONY, AM.: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT (A) - 1, HYDERABAD IN APPEAL NO. 0216/2016 - 17/ACIT, CIRCLE - 4(1)/CIT (A) - 1/HYD/2018 - 19, DATED 25/01/2019 PASSED U/S. 143(3) R.W.S 147 AND U/S. 250(6) OF THE ACT FO R THE AY 2012 - 13. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN HER APPEAL: - (I) THE LD CIT (A) OUGHT TO HAVE APPRECIATED THAT THE AO ERRED IN PASSING AN ORDER U/S. 143(3) R.W.S 147 OF THE ACT DATED 16/12/2016 WHICH IS BAD IN LAW AND ON FACTS. (II) AS PER THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF NATIONAL THERMAL POWER CO. LTD VS. CIT (1998) 229 ITR 383 (SC), THE HONBLE ITAT HAS JURISDICTION TO EXAMINE THE QUESTION OF LAW WHICH HAS BEEN TAKEN BEFORE THE ITAT FOR THE FIRST TIME T HOUGH NOT TAKEN BEFORE THE FIRST APPELLATE AUTHORITY. THE LD. CIT (A) OUGHT TO HAVE APPRECIATED AND HELD THAT THE AO ERRED IN NOT 2 CONSIDERING THE SUBMISSIONS AND EVIDENCES SUBMITTED BY THE ASSESSEE AR DURING THE SCRUTINY PROCEEDINGS. (III) THE CIT (A) OUGHT TO HAVE APPRECIATED THAT THE NOTICE ISSUED U/S. 148 DATED 24/05/2016 HAS NOT BEEN ISSUED WITH THE PRIOR APPROVAL OF THE COMPETENT AUTHORITY AND HENCE THE IMPUGNED REASSESSMENT IS INVALID AB INITIO. (IV) WITHOUT PREJUDICE TO OTHER GROUNDS, THE LD. CIT (A) OUGHT TO HAVE APPRECIATED THAT THE REASONS FOR ISSUE OF NOTICE U/S. 148 OF THE ACT AS COMMUNICATED BY THE AO VIDE HIS LETTER DATED 3 RD NOVEMBER, 2015 ARE NOT COGENT, CONVINCING AND EXISTING. (V) WITHOUT PREJUDICE TO OTHER GROUNDS THE LD. CIT (A) OUGHT TO HAVE APPRECIAT ED FROM THE REASONS FOR ISSUE OF NOTICE U/S. 148 OF THE ACT THAT THERE IS NO BONAFIDE BELIEF ON THE PART OF THE AO ON THE ESCAPEMENT OF ANY INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. (VI) THE LD. CIT (A) OUGHT TO HAVE APPRECIATED THAT THE AO ERRED IN I NVOKING THE PROVISIONS OF SECTION 50C OF THE ACT AND ADOPTING THE MARKET VALUE AS PER SUB - REGISTRAR. (VII) THE LD. CIT (A) OUGHT TO HAVE APPRECIATED THAT THE AO HAS NOT REFERRED THE PROPERTY TO DVO FOR VALUATION AS THE ASSESSEE HAD OBJECTED FOR ADOPTING THE VALU E AS PER THE SRO. (VIII) THE LD. CIT (A) OUGHT TO HAVE APPRECIATED THAT THE AO VIOLATED THE PROVISIONS OF SECTION 50C(2) OF THE ACT IN NOT REFERRING THE CASE TO THE DVO. (IX) WITHOUT PREJUDICE TO OTHER GROUND, THE CIT (A) OUGHT TO HAVE DECIDED THE CASE BASED ON THE MERITS OF THE CASE. (X) THE LD CIT (A) OUGHT TO HAVE APPRECIATED THAT THE ADDITION MADE U/S. 50C OF THE ACT FOR RS. 48,04,804/ - IS NOT WARRANTED. (XI) THE LD. CIT (A) OUGHT TO HAVE APPRECIATED THAT THERE ARE SEVERAL LITIGATIONS ATTACHED TO THE SECUNDERABAD PROPERTY BEARING DOC. NO. 0429 OF 2011, DUE TO WHICH THE REALISABLE VALUE OF THE PROPERTY IS LESS THAN THE VALUE FIXED FOR STAMP DUTY PURPOSE. (XII) THE LD. CIT (A) OUGHT TO HAVE APPRECIATED THAT THE SALE CONSIDERATION IS INFLUENCED BY LITIGATIONS. (XIII) THE LD. CIT (A) OUGHT TO HAVE APPRECIATED THAT THE ASSESSEE HAS RECEIVED ONLY RS. 20,92,500/ - . (XIV) THE LD. CIT (A) OUGHT TO HAVE APPRECIATED THAT THE AO ERRED IN NOT CONSIDERING THE SUBMISSIONS AND EVIDENCE SUBMITTED BY THE ASSESSEE AR DURING THE SCRUTINY PROCEEDINGS. (XV) THE APPELLA NT MAY ADD OR ALTER OR AMEND OR MODIFY OR SUBSTITUTE OR DELETE AND OR RESCIND ALL OR ANY OF THE GROUND OF APPEAL AT ANY TIME BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 3 . THIS APPEAL IS HEARD THROUGH VIDEO CONFERENCING. AT THE OUTSET, THE LD. AR SUBMITTED BEFORE US THAT THE LD. CIT (A) HAS PASSED EX - PRATE ORDER WITHOUT PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. IT WAS THEREFORE PLEADED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE LD CIT (A) IN ORDER TO PROVIDE PROPER OPPORTUNITY TO THE 3 ASSESSEE TO PRESENT THE APPEAL BEFORE THE LD.CIT(A) EFFECTIVELY . LD. DR, ON THE OTHER HAND, VEHEMENTLY OPPOSED TO THE SUBMISSIONS OF THE LD. AR AND PLEADED THAT SUFFICIENT OPPORTUNIT IES HAD BEEN PROVIDED TO THE ASSESSEE HOWEVER, ON THE GIVEN DATE OF HEARING I.E., 25/01/2019 , NEITHER THE ASSESSEE NOR H ER REPRESENTATIVE APPEARED BEFORE THE LD. CIT (A). LD. DR FURTHER SUBMITTED THAT IN SUCH SITUATION, THE LD. CIT (A) HAD NO OTHER OPTION BUT TO PASS EX - PARTE ORDER BASED ON THE MATERIALS AVAILABLE ON RECORD. HENCE, IT WAS PLEADED THAT THE ORDER PASSED BY THE LD. CIT(A) DOES NOT CALL FOR ANY INTERFERENCE AND APPEAL OF THE ASSESSEE MAY BE DISMISSED. 4 . WE HAVE HEA RD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. ON EXAMINING THE FACTS OF THE CASE, WE FIND MERIT IN THE SUBMISSIONS OF THE LD. DR. THE LD. CIT (A) HAD POSTED THE CASE ON FOUR OCCASIONS I.E., 13/06/2017, 20/03/2018, 08/10/2018 AND 28/11/2018 . HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE CIT(A) ON THE ABOVEMENTIONED DATE S OF HEARING. IN THIS SITUATION, WE DO NOT FIND MUCH STRENGTH IN THE ARGUMENTS ADVANCED BY THE LD. AR. HOWEVER, CONSIDERING THE PRAYER OF THE LD. AR, IN THE INTEREST OF JUSTICE, WE HEREBY REMIT THE MATTER BACK TO THE FILE OF LD. CIT (A) TO CONSIDER THE APPEAL AFRESH BY PROVIDING ONE MORE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. AT THE SAME BREATH, WE ALSO HEREBY CAUTION THE ASSESSEE TO PROMPTLY CO - O PERATE BEFORE THE LD. CIT (A) IN THE PROCEEDINGS FAILING WHICH THE LD. CIT (A) SHALL BE AT LIBERTY TO PASS APPROPRIATE ORDER IN 4 ACCORDANCE WITH LAW AND MERITS BASED ON THE MATERIALS ON RECORD. IT IS ORDERED ACCORDINGLY. 5 . IN THE RESULT, APPEAL FILED BY T HE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED HEREINABOVE. PRONOUNCED IN THE OPEN COURT ON 09 TH JUNE, 2020. SD / - SD/ - (P. MADHAVI DEVI) ( A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 09 TH JUNE, 2020. OKK COPY TO: - 1) DR. SUCHARITHA BAGAYAT C/O. P. MURALI & CO., CHARTERED ACCOUNTANTS, 6 - 3 - 655/2/3, SOMAJIGUDA, HYDERABAD 500 082. 2) ACIT, CIRCLE - 4(1), HYDERABAD. 3) THE CIT (A) - 1, HYDERABAD. 4) THE PR. CIT - 1, HYDERABAD. 5) THE DR, ITAT, HYDERABAD 6) GUARD FILE