Chadalavada Padmavathi, Hyd, Hyderabad V. DCIT, Circle-11(1), Hyd, Hyderabad

ITA 32/Hyd/2016

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8454 (ITAT-HYDERABAD)
• Duration Of Justice: 5 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 12-07-2021
• Assessment Year: 2008-2009
• Appeal Filed On: 11-01-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital Gains

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER I.T.A. NO. 32/HYD/2016 ASSESSMENT YEAR: 2008-09 SMT.CHADALAVADA PADMAVATHI, HYDERABAD [PAN: ADHPC4121E] VS DY.COMMISSIONER OF INCOME TAX, CIRCLE-11(1), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI PAWAN KUMAR CHAKRAPANI, AR FOR REVENUE : SHRI ROHIT MUJUMDAR, DR DATE OF HEARING : 12-07-2021 DATE OF PRONOUNCEMENT : 18-08-2021 O R D E R PER S.S.GODARA, J.M. : THIS ASSESSEES APPEAL FOR AY.2008-09 ARISES FROM TH E CIT(A)-5, HYDERABADS ORDER DATED 16-09-2015 PASSED IN CASE NO.0148/2014-15/CIT(A)-5, IN PROCEEDINGS U/S.143(3) R.W.S.147 OF THE INCOME TAX ACT, 1961 [IN SHORT, THE A CT]. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. IT TRANSPIRES AT THE OUTSET THAT THE ASSESSEES INSTANT APPEAL SUFFERS FROM 35 DAYS DELAY IN FILING, STATED TO BE ATTRIBUTABLE TO THE REASON(S) BEYOND ITS CONTROL AS PER CONDONATION PETITION/AFFIDAVIT. ITA NO. 32/HYD/2016 :- 2 -: NO REBUTTAL HAS COME FROM THE DEPARTMENTAL SIDE. THE IMPUGNED DELAY IS CONDONED THEREFORE. 3. WE STRAIGHTAWAY COME TO THE FORMER ISSUE OF VALIDITY OF SECTION 148/147 PROCEEDINGS AND NOTE THAT THE ASSESSING OFFICER HAD RECORDED THE FOLLOWING RE-OPENING REASON S: 2. IN THIS REGARD THE REASONS FOR REOPENING THE AS SESSMENT FOR THE AY 2008-09 ARE AS UNDER: (I) THE ASSESSEE HAS RECEIVED AN AMOUNT OF RS.1,20, 80,000/- AS COMPENSATION FROM HUDA ON ACQUISITION OF AGRICULTUR AL LANDS AT KOLLUR VILLAGE OF MEDAK DISTRICT. THE ASSESSEE CLAI MED THAT THE LANDS ARE AGRICULTURAL LANDS AND PURCHASED BY HER IN THE YEAR 2001 AND THE SAME WAS USED BY HER FOR CULTIVATION. THE LANDS ARE SITUATED 20KM AWAY FROM THE LIMITS OF HYDERABAD AND CYBERABAD LIM ITS AND HENCE NO CAPITAL GAINS TAX ARISE ON THESE LANDS. BUT THE ASSESSEE HAS NOT OFFERED ANY AGRICULTURAL INCOME. IF THESE LANDS ARE NOT AGRICULTURAL LANDS THE COMPENSATION WOULD HAVE TO BE TREATED AS SALE PROCEEDS AND SUCH INCOME RECEIVED SHOULD BE BROUGHT TO TAX U NDER THE HEAD INCOME FROM OTHER SOURCES. (II) THE INFORMATION SUBMITTED THAT AS A DISTRIBUT OR OF FILMS UNDER THE BANNER 'M/S. SARI TIRUMALA TIRUPATHI VENKATESWARA F ILMS', THE ASSESSEE HAD SUBMITTED THE INVOICE OF TRADE TRANSAC TIONS WITH M/S. WARNER BROS OF MUMBAI & CHENNAI BRANCH AND THE ASSE SSEE'S SHARE WAS THE ONLY AMOUNT MENTIONED. NO DETAILS AS TO THE SHOW TIMINGS & COLLECTIONS MADE HAVE BEEN DISCLOSED, WHICH NEEDS F URTHER INVESTIGATION. (III) VERIFICATION IS TO BE MADE, WHETHER THESE LAN DS ARE AGRICULTURAL LANDS OR NOT AND ALSO TO ASCERTAIN IF SUPPRESSION O F RECEIPTS WAS RESORTED TO OR NOT. 4. THE REVENUE FAILS TO DISPUTE THAT THE ABOVE EXTRACTED RE- OPENING REASONS NOWHERE INDICATE AS TO WHETHER THE ASS ESSEES TAXABLE INCOME LIABLE TO BE ASSESSED HAD ESCAPED ASSE SSMENT OR NOT. THE ASSESSING OFFICER APPEARS TO HAVE MADE A CLEAR CUT OBSERVATION THAT HE NEEDED TO VERIFY THE FACTS AS TO WHE THER THE ASSESSEES LANDS ARE AGRICULTURAL OR NOT. AND ALSO TO ASCERTAIN IF SHE HAD SUPPRESSED HER RECEIPTS OR NOT (SUPRA). W E THUS ITA NO. 32/HYD/2016 :- 3 -: QUOTE HON'BLE BOMBAY HIGH COURTS LANDMARK DECISION I N HINDUSTAN UNILEVER LTD. VS. RB WADKAR (2004) 268 ITR 332 (BOM) THAT RE-OPENING REASONS HAVE TO BE READ ON STAND ALONE BASIS WITHOUT ANY POSSIBILITY OF ADDITION, DELETION OR SUBSTITUTION THEREIN AT ANY LATTER POINT OF TIME AND QUASH THE IMPUGNED RE-OPENING ITSELF FOR HAVING FAILED TO RECO RD THE APPROPRIATE REASONS PIN POINTING ESCAPEMENT OF ASSESS EES TAXABLE INCOME FROM BEING ASSESSED. HON'BLE APEX COU RTS RECENT LANDMARK JUDGMENT IN COMMISSIONER OF CUSTOMS V S. DILIP KUMAR (2018) 9 SCC 1 (FB)(SC) ALSO HOLDS THAT THE PROVISIONS IN THE ACT HAVE TO BE STRICTLY CONSTRUED ONLY . WE THUS ADOPT THE VERY PRINCIPLE MUTATIS MUTANDIS AND QUASH THE IMPUGNED RE-OPENING/RE-ASSESSMENT IN ABOVE TERMS. AL L OTHER PLEADINGS ON MERITS ARE RENDERED INFRUCTUOUS. 5. THIS ASSESSEES APPEAL IS ALLOWED IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH AUGUST, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S.S.G ODARA) ACCOUNTANT MEMBER JUDICIAL MEM BER HYDERABAD, DATED: 18-08-2021 TNMM ITA NO. 32/HYD/2016 :- 4 -: COPY TO : 1.SMT.CHADALAVADA PADMAVATHI, 6-20, KUKATPALLY X RO AD, KUKATPALLY, HYDERABAD. 2.DY.COMMISSIONER OF INCOME TAX, CIRCLE-11(1), HYDERABAD. 3.CIT(APPEALS)-5, HYDERABAD. 4.PR.CIT-5, HYDERABAD. 5.D.R. ITAT, HYDERABAD. 6.GUARD FILE.