Pathuri Srinivas, Hyderabad V. DCIT, Circle-1(1), Hyderabad, Hyderabad

ITA 257/HYD/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6009 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 28-06-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 13-03-2015
• Court: TRIBUNAL
• Department Lawyers: K J RAO
• Assessee Lawyers: S RAMA RAO
• Keywords: Capital asset; Salary income; Cost of acquisition; Revised return
• Section: 234B; 147; 148; 54

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B (SMC), HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NO. 257/HYD/2015 ASSESSMENT YEAR: 2008-09 SHRI PATHURI SRINIVAS, HYDERABAD. PAN AEYPP4532J VS. THE DY COMMISSIONER OF INCOME TAX, CIRCLE 1(1) HYDERABAD (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S. RAMA RAO REVENUE BY : SHRI K.J RAO DATE OF HEARING : 22-03-2017 DATE OF PRONOUNCEMENT : 31-03-2017 ORDER THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE ORD ER OF CIT(A)-1, HYDERABAD DATED 02-12-2014. ASSESSEE HAS RAISED THE FOLLOWING GROUNDS. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN I NITIATING THE PROCEEDINGS U/S 147 OF THE I.T ACT. 3. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN H OLDING THAT THE TRANSFER OF THE PROPERTY SITUATED AT 2-17/ AO/2, IN SURVEY NOS.1 TO 4, 9(P), 15 AND 16, LZZATH NAGAR VILLAGE, SERELI NGAMPALLY MANDAL WAS ON 2.4.2007. 4. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) OUGHT TO HAVE SEEN THAT THE PROVISIONS OF SEC.53A OF THE TRA NSFER OF PROPERTY ACT HAVE NO APPLICATION TO THE FACTS OF TH E CASE AND THAT IT CANNOT BE SAID THAT THERE WAS A TRANSFER OF PROPERTY AS ON 2.4.2007 AND THAT THE CAPITAL GAIN IS ASSESSABLE FOR THE ASSESSMENT YEAR 2008-09. 5. THE LEARNED CIT (APPEALS) ERRED IN CONFIRMING TH E DETERMINATION OF THE CAPITAL GAIN BY THE ASSESSING OFFICER AT RS.17,99,020/-. 2 ITA NO. 257/HYD/2015 SHRI PATHURI SRINIVAS, HYDERABAD. 6. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) OUGHT TO HAVE HELD THAT THE CAPITAL GAIN DID NOT ARISE ON 2. 4.2007 AND THE GAIN IS ASSESSABLE UNDER THE HEAD 'LTCG'. 7. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) OUGHT TO HAVE HELD THAT THE CAPITAL GAIN ARISING ON THE TRAN SFER OF THE PROPERTY IS LTCG AND THE DEDUCTIONS ALLOWABLE IN RE SPECT OF THE LTCG ARE ALLOWABLE TO THE APPELLANT. 7. THE LD. CIT(A) OUGHT TO HAVE DIRECTED THE A.O TO ALLOW DEDUCTION OF COST OF ACQUISITION AND THE DEDUCTION ALLOWABLE U/S 54 OF THE IT ACT. 8. THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION O F THE A.O IN CHARGING INTEREST U/S 234B & 234C OF THE IT ACT. THE GROUND NOS. 01 & 09 ARE GENERAL IN NATURE AND GROUND NO. 08 IS CONSEQUENTIAL WHICH DOES NOT REQUI RE ANY FRESH ADJUDICATION. 2. BRIEFLY STATED ASSESSEE IS AN INDIVIDUAL, DERIVI NG INCOME FROM SALARY, HOUSE PROPERTY AND INCOME FROM OTHER SOURCES. HE FILED RETURN OF INCOME ORIGINALLY ON 15-02-2010 ADMITTING INCOME OF RS. 29,88,000/-. WHI LE SCRUTINIZING THE RETURN OF M/S AVENIR POWER TECHNOL OGIES PVT. LTD., IT WAS NOTICED BY A.O THAT THE SAID COMP ANY PURCHASED THE HOUSE PROPERTY FROM ASSESSEE, FROM WH ICH THE ASSESSEE HAS NOT ADMITTED THE CAPITAL GAINS ARI SING OUT OF SALE ON HOUSE PROPERTY. ASSESSEE FILED A REVISE D RETURN OF INCOME ON 15-12-2010 ADMITTING TOTAL INCOME OF R S. 33,71,159/- INCLUDING CAPITAL GAINS ON SALE OF PROP ERTY. SINCE THE REVISED RETURN WAS FILED BEYOND THE PERMI TTED TIME, A.O ISSUED A NOTICE U/S 148 OF THE IT ACT ON 02-05-2011. IN RESPONSE TO NOTICE ISSUED U/S 148 O F THE IT ACT, ASSESSEE FILED A LETTER ON 09-06-2011, STATING THAT THE REVISED RETURN FILED ON 15-12-2010 MAY BE TREATED A S 3 ITA NO. 257/HYD/2015 SHRI PATHURI SRINIVAS, HYDERABAD. RETURN FILED IN RESPONSE U/S 148 OF THE IT ACT. IN THE REVISED RETURN ASSESSEE ADMITTED THE CAPITAL GAIN A S UNDER: SALE(IN THE MONTH 2008) 80,00,000 PURCHASE COST 62,00,980 INDEXED COST 70,91,705 INCOME FROM LONG TERM CAPITAL GAIN 09,08,295 3. IN THE COURSE OF SCRUTINY ASSESSMENT, A.O NOTICE D THAT ASSESSEE HAS ENTERED INTO AN AGREEMENT OF SALE WITH THE SAID M/S AVENIR POWER TECHNOLOGIES PVT. LTD., ON 02-04-2007 AND VIDE CLAUSE-12, THE PHYSICAL VACANT POSSESSION OF THE BUILDING WAS HANDED OVER. ACCORDI NGLY A.O WAS OF THE OPINION THAT THE CAPITAL GAIN IS TO BE CONSIDERED AS SHORT TERM CAPITAL GAIN, AS THE PROPE RTY WAS PURCHASED ON 20-01-2005. IN THE ASSESSMENT ORDER H E REWORKED OUT CAPITAL GAIN BY DENYING THE BENEFIT OF INDEXATION COST AND SHORT TERM CAPITAL GAIN HAS BE EN ARRIVED AT RS.17,99,020/-. 4. BEFORE THE LD. CIT(A) ASSESSEE CONTESTED THE DAT E OF SALE STATING THAT MOST OF THE CONSIDERATION WAS REC EIVED AND FINALLY ASSESSEE HANDED OVER THE PROPERTY, IN M ARCH 2008 AND RELIED ON THE CLAUSE 4 & 5 WHICH SPECIFIC ALLY STATES THAT VENDORS SHALL DELIVER VACANT POSSESSIO N AT THE TIME OF REGISTRATION OF SALE DEED. 5. HOWEVER, LD. CIT(A) BY EXTRACTING THE PAYMENT DE TAILS OF CONSIDERATION AND ALSO FACT THAT NO REGISTRATION WAS COMPLETED SO FAR, HAS CONFIRMED THE ACTION OF THE A .O, 4 ITA NO. 257/HYD/2015 SHRI PATHURI SRINIVAS, HYDERABAD. RELYING ON THE DECISION OF JURISDICTIONAL ANDHRA PR ADESH HIGH COURT IN THE CASE OF POTLA NAGESWAR RAO IN ITT A NO.24 OF 2014 DATED 09.04.2014. THE OBSERVATIONS OF THE CIT(A) FROM PARA ONWARDS IN HIS ORDER, ARE AS UNDER: '1. IN PURSUANCE OF THE SAID SALE CONSIDERATION OF RS. 80,00,000/ ' (RUPES EIGHTY LAKHS ONLY) AND THE VEND EE HAS PAID AN AMOUNT OF RS. 40,000/- (RUPEES FORTY THOUSA ND ONLY) BY WAY OF CASH TO THE VENDOR, AND THE VENDOR DO HERE BY ADMITS AND ACKNOWLEDGES THE RECEIPT OF THE SAID SUM. 4. THE VENDOR SHALL DELIVER THE VACANT POSSESSION O F THE SAID PROPERTY TO THE VENDEE OR HIS NOMINEE (S) AT T HE TIME OF REGISTRATION OF SALE DEED. 6. THE VENDOR SHALL REGISTER A SALE DEED IN FAVOUR OF THE VENDEE OR HIS NOMINEE OR NOMINEES ONLY AFTER RECEIV ING THE BALANCE SALE CONSIDERATION IN FULL WITHOUT ANY BALA NCE OF THE SALE CONSIDERATION PENDING BY WAY OF CHEQUE PAY MENT ONLY FROM THE VENDEE AND REGISTRATION CHARGES WILL BE BORNE BY THE VENDEE AT THAT POINT OF TIME AS PER THE GOVE RNING LAW OF THE LAND. 12. THAT THE VENDOR HAS HANDED OVER THE PHYSICAL VA CANT POSSESSION OF BUILDING WHICH IS NOT ON PART OF ASSI GNED LAND ATTRACTING THE PROVISION OF PROHIBITION ON ASS IGNED LANDS ACT NO.9 OF 1977.' 4.1 (G). AN AMOUNT OF RS.80,00,000/- WAS PAID BY M/S AVENIR POWER TECHNOLOGIES PVT. LTD. DIRECTLY TO GIC HOUSIN G FINANCE LTD.ICICI/HSBC BANKS ON BEHALF OF THE APPELLANT AS UNDER: 5 ITA NO. 257/HYD/2015 SHRI PATHURI SRINIVAS, HYDERABAD. SL.NO DESCRIPTION DATE AMOUNT 1 DD IN FAVOUR OF GIC HOUSING FINANCE LTD. ON BEHALF OF APPELLANT FOR PART CLOSURE OF LOAN A/C 28.08.2007 RS.6,11,556.00 2 DD IN FAVOUR OF GIC HOUSING FINANCE LTD. ON BEHALF OF APPELLANT FOR CLOSING OF LOAN A/C 28.08.2007 RS. 44,49,402.00 3 PENDING LAON REPAYMENT TO ICICI AND HSBS 28.08.2007 RS. 27,02,787.00 4 BALANCE TO BE RECEIVED FROM COMPANY AS ON 31.03.2008 RS. 3,36,255.00 TOTAL RS. 80,00,000.00 (H). IT IS TO BE EMPHASIZED THAT THE PROPERTY IS N OT REGISTERED IN FAVOUR OF M/S. AVENIR POWER TECHNOLOGIES PVT. LT D. EVEN AS ON DATE. HOWEVER, VIDE LEAVE AND LICENCE AGREEMENT DATED 17.01.2011 M/S. AVENIR POWER TECHNOLOGIES PVT. LTD. HAD GIVEN THE PREMISES ON RENT TO M/ S. HARSCO INDIA PVT, LTD . FOR MONTHLY LICENCE FEE OF RS.2.00.000/-. IN THIS LEAVE AND LICENCE AGREEMENT M/S AVENIR POWER TECHNOLOGIES PVT. LTD. W AS SHOWN AS LAWFUL OWNER HAVING CLEAR, ABSOLUTE UNRESTRICTED TITLE AND OWNERSHIP RIGHTS TO THE PROPERTY. (I) ACCORDING TO THE ASSESSING OFFICER, THE DATE OF PURCHASE IS 20.01.2005 AND DATE OF SALE IS 02.04.2007. AS THE P ERIOD IS LESS THAN 36 MONTHS THE GAIN WAS TAXED AS SHORT TER M CAPITAL GAINS. HOWEVER, THE ASSESSEE TREATED THE GAIN AS LO NG TERM CAPITAL GAIN FOR THE REASONS; (I) THAT AS ON 02.04.2007, THE APPELLANT DID NOT OFFER THE POSSESSION OF THE PROPERTY NOR THE CONSID ERATION WAS RECEIVED FULLY. (II) THAT THERE WAS NO TRANSFER OF PROPERTY DURING THE PREVIOUS YEAR, THEREFORE, NO CAPITAL GAIN AROSE DURING THE YEAR. ALTERNATIVELY, SINCE THE ENTIRE CONSIDERA TION WAS RECEIVED BY MARCH, 2008 THE CAPITAL GAIN HAS TO BE ASSESSED AS LONG TERM CAPITAL GAIN. (J) HOWEVER, AS PER THE AGREEMENT OF SALE DATED 02.04.2007,THE PLOT OF LAND OF 496 SQUARE YARDS ALO NG WITH CONSTRUCTED AREA OF 3000 SQUARE FEET WAS SOLD FOR A CONSIDERATION OF RS.80,00,00/-. AN AMOUNT OF RS.4O,000/-WAS PAID BY THE PURCHASER. THE SELLER AD MITS AND ACKNOWLEDGES THE RECEIPT OF THE SAID SUM. THE C LAUSE 12 OF THE AGREEMENT OF SALE CLEARLY READS THAT THE POSSESSION OF THE BUILDING WAS HANDED OVER BY THE APPELLANT TO THE COMPANY. 6 ITA NO. 257/HYD/2015 SHRI PATHURI SRINIVAS, HYDERABAD. THEREFORE, THERE IS NO MERIT IN THE CONTENTION OF T HE APPELLANT STATING THAT POSSESSION OF THE PROPERTY W AS NOT HANDED OVER BY 02.04.2007. IN AMPLE NUMBER OF CASES THE HON'BLE COURTS HAVE HELD THAT THE DATE OF PAYMENT O F CONSIDERATION IS NOT MATERIALLY IMPORTANT. ON THE O THER HAND, IT WAS HELD THAT THE CAPITAL GAIN IS CHARGEABLE IN THE YEAR OF AGREEMENT AS THE RIGHT TO RECEIVE THE CONSIDERATION ARISES OUT OF SUCH AGREEMENT EVEN THOUGH THE ACTUAL CONSIDERAT ION IS RECEIVED AT A LATER DATE, THE HON'BLE ANDHRA PRADES H HIGH - OUR: IN THE CASE OF POTLA NAGESWARA RAO, ITTA NO.24 OF 2014 DATED 09.04.2014 HELD THAT CAPITAL GAIN IS TAXABLE IN THE YEAR OF AGREEMENT AS UNDER: IN THE INSTANT CASE, ON 07.03.2003 AN AGREEMENT W AS ENTERED INTO BY THE ASSESSEE WITH M/S. BHAVYA CONST RUCTIONS PVT. LTD. AND THE PLAN OF THE BUILDING WAS APPROVED ON 31.03.2003. THESE DATES FALL IN THE PREVIOUS YEAR 2002-03, RELEVANT TO ASSESSMENT YEAR 2003-04. THUS IN THIS CASE, THE LAND BEING CAPITAL ASSET WAS TRANSFERRED BY THE ASS ESSEE TO THE DEVELOPER DURING THE ASSESSMENT YEAR UNDER CONSIDER ATION, VIZ., 2003-04 FOR CONSTRUCTION AND IT IS ENOUGH IF THE ASSESSEE HAS RECEIVED THE RIGHT TO RECEIVE CONSIDERATION ON LATER DATE, SO AS TO ATTRACT ELIGIBLE TO TAX ON CAPITAL GAINS DURI NG THE YEAR UNDER APPEAL. THEREFORE, THESE GROUNDS OF APPEAL ARE DISMISSED. 5.1. IT WAS THE CONTENTION OF THE LD. COUNSEL THAT ASSESSEE HAS NOT HANDED OVER THE POSSESSION DURING THE YEAR AND VIDE CLAUSE 4 & 6 IT WAS SPECIFICALLY STATED THAT T HE POSSESSION WILL BE HANDED OVER ONLY ON RECEIPT OF T HE CONSIDERATION AND AT THE TIME OF THE REGISTRATION O F SALE DEED. IT WAS FURTHER SUBMITTED THAT ASSESSEE HAS H ANDED OVER THE POSSESSION OF PROPERTY VIDE LETTER DATED 2 6-03- 2008. IT WAS THE SUBMISSION THAT THE POSSESSION WA S HANDED OVER ONLY IN MARCH 2008. SINCE, THERE IS CO NDITION THAT SALE WILL BE COMPLETED ONLY AT THE END OF RECE IPT OF CONSIDERATION, THE DATE OF AGREEMENT SHOULD NOT BE CONSIDERED AS DATE OF SALE AND ACCORDINGLY ASSESSEE RIGHTLY CONSIDERED THE CAPITAL GAIN AS LONG TERM CAPITAL GA IN. 7 ITA NO. 257/HYD/2015 SHRI PATHURI SRINIVAS, HYDERABAD. 6. LD. DR HOWEVER RELIED ON THE ORDERS OF THE AUTHO RITIES AND PARTICULARLY REFERRED TO THE FACT THAT THE MANA GING DIRECTOR OF THE COMPANY AND ASSESSEE ARE ONE AND SA ME, THEREFORE THE LETTER DATED 26-03-2008 SHOULD NOT BE CONSIDERED AS GENUINE ONE. IT WAS FURTHER SUBMITTED THAT MOST OF THE CONSIDERATIONS WAS RECEIVED BY AUGUST 2 007, AS STATED IN THE ORDER OF THE CIT(A). 7. IN REPLY LD. COUNSEL HOWEVER SUBMITTED THAT ASSE SSEE HAS NOT RECEIVED BALANCE CONSIDERATION FROM THE COM PANY AND THE TRANSACTION WAS NOT COMPLETED, THEREFORE TH E SALE IS TO BE CONSIDERED AS COMPLETE ONLY AT THE END OF THE YEAR AND THE POSSESSION WAS HANDED OVER SPECIFICALLY. 8. I HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERU SED THE DOCUMENTS PLACED ON RECORD IN THE FORM OF PAPER BOOK. THE ONLY DISPUTE IN THIS CASE IS DATE OF SALE, AS T HAT DETERMINES THE NATURE OF CAPITAL GAIN AND CONSEQUEN T INTEREST LEVY. ADMITTEDLY ASSESSEE HAS ENTERED INT O AN AGREEMENT ON 02-04-2007, WHICH IS NOT A REGISTERED DEED. THAT DEED INDICATES THAT ASSESSEE HAS RECEIVED ONLY A CONSIDERATION RS. 40,000/-, AS AGAINST TOTAL CONSID ERATION OF RS. 80,00,000/-, THAT TOO BY WAY OF CASH. EVEN THOUGH CLAUSE 4 STATES THAT THE VENDOR SHALL DELIVER THE VACANT POSSESSION OF SAID PROPERTY TO THE VENDEE OR IS NOM INEE AT THE TIME OF REGISTRATION OF SALE DEED, THE FACT IS THAT ASSESSEE HAS NOT REGISTERED THE PROPERTY IN THE NAM E OF THE COMPANY EVEN AS OF NOW, BUT THE POSSESSION HAS ADMI TTEDLY HANDED OVER ON 26-03-2008 AS PER ASSESSEE. IT IS T O BE NOTED THAT ASSESSEE BEING MANAGING DIRECTOR OF THE COMPANY, THE LETTER PLACED ON RECORD IS ADMITTEDLY 8 ITA NO. 257/HYD/2015 SHRI PATHURI SRINIVAS, HYDERABAD. ADDRESSED BY THE ASSESSEE TO HIMSELF IN ANOTHER CAP ACITY. THERE IS NO OTHER CORROBORATIVE EVIDENCE TO SUPPORT THAT ASSESSEE INDEED HAS HANDED OVER PROPERTY ON THAT DA TE. AS PER THE PAYMENTS OF CONSIDERATION IS CONCERNED, AS PER THE TABLE EXTRACTED BY THE CIT(A) IN PARA G, WHICH IS N OT DISPUTED BY ASSESSEE, THE SAID PAYMENTS WERE MOSTLY PAID BY 28-08-2007, LEAVING THE BALANCE OF 2,36,255/- BY THE END OF THE YEAR. THUS LARGE PART OF THE CONSIDERATI ON WAS RECEIVED BY AUGUST 2007, THEREFORE THE CONDITION IN CLAUSE 6 IS SATISFIED. 9. THE LD. CIT(A) RELIED ON CLAUSE 12 WHICH INDICAT ES THAT THE VENDOR WAS HANDED OVER PHYSICAL VACANT POSSESSION OF THE BUILDING WHICH IS NOT ON PART OF ASSIGNED LAND ATTRACTING THE PROBATION OF ASSIGNED LANDS ON ACT 9/1977. THE PURPORT OF THIS CLAUSE WAS EXPLAINED THAT IT ONLY CLARIFIES THAT THE BUILDING WAS NOT PART OF AN Y ASSIGNED LAND BUT IT DOES NOT MEAN THAT ASSESSEE HAS HANDED OVER PHYSICAL VACANT POSSESSION. THE ENTIRE EVIDENCE PL ACED ON RECORD CANNOT BE FULLY ACCEPTED AS THE PAYMENTS STA TED TO HAVE BEEN MADE BY THE COMPANY ARE PART OF THE RUNNI NG ACCOUNT OF THE ASSESSEE WITH THE COMPANY, BEING MAN AGING DIRECTOR, WHICH REFLECT NOT ONLY PAYMENTS MADE TO G IC TOWARDS LOAN INSTALMENT BUT ALSO THE OTHER PAYMENTS SUCH AS DAY TO DAY EXPENDITURE, OF CREDIT CARD PAYMENTS, INSURANCE PAYMENTS ETC. ASSESSEE IS NOT ABLE TO E XPLAIN WHEN IT WAS SPECIFICALLY ASKED, WHAT WAS THE NEED F OR TRANSFERRING / ENTERING THE AGREEMENT ON 02-04-2007 , THAT TOO BY RECEIVING A CASH ADVANCE OF RS.40,000/-, WHE N ASSESSEE COULD HAVE RECEIVED AMOUNT BY WAY OF CHEQU E AS 9 ITA NO. 257/HYD/2015 SHRI PATHURI SRINIVAS, HYDERABAD. WELL. THIS ARISES A DOUBT WHETHER THE PROPERTY MIG HT HAVE BEEN PLEDGED TO A BANK FOR OBTAINING LOAN OR FOR AN Y OTHER PURPOSE WHICH HAS NOT BEEN PLACED ON RECORD. HOWEV ER, THE LOAN AMOUNT OBTAINED BY ASSESSEE WAS BEING DISCHARGED FROM THE ACCOUNT OF THE COMPANY AND MAJO R PAYMENTS WERE PAID BY WAY OF DDS ON 28-08-2007, TO BOTH GIC HOUSING AS WELL AS ICICI AND HSBC. THIS INDICA TES THAT THE MOST OF THE SALE CONSIDERATION WAS RECEIVE D BY THE ASSESSEE ON 28-08-2007. ASSESSEE ALSO NOT PLACED O N RECORD WHY THE POSSESSION WAS NOT HANDED OVER ON 28 -08- 2007 AND WHY THE SAME WAS STATED TO BE HANDED OVER ON 26-03-2008, WHEN STILL, FULL CONSIDERATION WAS NOT RECEIVED. ASSESSEES CONTENTIONS THAT THE POSSESSION WAS HAND ED OVER ON 26-03-2008 ALSO IS NOT VERIFIABLE OR ACCEPT ABLE IN THE ABSENCE OF ANY OTHER EVIDENCE TO PROVE THE SAME . THE LETTER ISSUED BY THE ASSESSEE TO THE COMPANY, IN WH ICH HE IS A MANAGING DIRECTOR, CANNOT BE ACCEPTED AS SUCH IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE. AS ALREADY DISCUSSED ABOVE, EVEN THOUGH CLAUSE 4 OF THE AGREEM ENT INDICATES THAT POSSESSION WILL BE HANDED OVER AT TH E TIME OF REGISTRATION, THERE IS NO REGISTRATION SO FAR, BUT POSSESSION WAS HANDED OVER ACCORDING TO ASSESSEE. IF CLAUSE 6 IS TO BE CONSIDERED, AS ANOTHER ONE RESTRICTING THE POSSESSI ON, THEN ENTIRE CONSIDERATION, BARRING SMALL AMOUNT, WAS REC EIVED BY AUGUST 2007, WHICH IS WITHIN THE 36 MONTHS PERIO D, TO CONSIDER THE CAPITAL GAIN AS LONG TERM CAPITAL GAIN . THE AGREEMENT ITSELF INDICATES, BY CLAUSE 12, THAT ASSE SSEE HAS HANDED OVER POSITION AS ON 02-04-2007, WHICH WAS RE LIED ON BY THE LD. CIT(A). CONSIDERING THE PRINCIPLES L AID DOWN BY THE HONBLE ANDHRA PRADESH HIGH COURT IN THE CAS E OF 10 ITA NO. 257/HYD/2015 SHRI PATHURI SRINIVAS, HYDERABAD. POTLA NAGESWAR RAO IN ITTA NO.24 OF 2014 DATED 09.04.2014, RELIED ON BY THE CIT(A), I AM OF THE OP INION THAT ASSESSEE DID INDEED HANDED OVER THE POSSESSION AS ON 02-04-2007 OR DEEMED TO HAVE BEEN HANDED OVER ON TH AT DAY. ACCORDINGLY, THE ORDERS OF THE A.O AND CIT(A) TREATING THE CAPITAL GAIN AS SHORT TERM CAPITAL GAIN HAS TO BE ACCEPTED AND THE ORDERS ARE ACCORDINGLY CONFIRMED. 10. ASSESSEE ALSO RAISED A GROUND THAT THE CAPITAL GAIN CANNOT BE TREATED IN THIS YEAR. SINCE, ASSESSEE HI MSELF HAS OFFERED THE CAPITAL GAIN DURING THE YEAR, BY FILING THE REVISED RETURN, WHICH WAS LATER REGULARIZED U/S 148 OF THE IT ACT, I AM OF THE VIEW THAT THERE IS NO MERIT IN ASSESSEES CONTENTION ON THAT ISSUE. SINCE A.O NOTICED THAT A SSESSEE DID SELL PROPERTY, WHICH WAS REFLECTED BY THE COMPA NY IN THEIR BOOKS OF ACCOUNT, THE REVISED RETURN FILED IT SELF IS THE BASIS FOR REOPENING OF THE ASSESSMENT. IN VIEW OF THAT, THE GROUNDS RAISED BY ASSESSEE ON THESE ISSUES ARE ACCO RDINGLY REJECTED. 11. IN THE RESULT, APPEAL OF ASSESSEE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 31 ST MARCH, 2017. SD/- ( B. RAMAKOTAIAH) ACCOU NTANT MEMBER HYDERABAD, DATED: 31 ST MARCH, 2017 KRK 11 ITA NO. 257/HYD/2015 SHRI PATHURI SRINIVAS, HYDERABAD. 1) SHRI PATHURI SRINIVAS C/O SHRI S RAMA RAO, ADVOCAT E FLAT NO. 102, SHRIYAS ELEGANCE, 3-6-643, STREET NO .9 HIMAYAT NAGAR, HYDERABAD 500029. 2) THE DCIT, CIRCLE-1(1), HYDERABAD. 3) CIT(A) -1, HYDERABAD 4) CIT -1, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., H YDERABAD. 6) GUARD FILE