Mohammed Hameedullah Khan , Hyderabad V. Income Tax Officer, Ward-9(2), Hyderabad

ITA 325/Hyd/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6844 (ITAT-HYDERABAD)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 18-12-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 11-03-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUNIL BABU
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition
• Section: 143(3); 50C; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A - SMC , HYDERABAD BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NO. 325 /HYD/20 19 ASSESSMENT YEAR: 20 10 - 11 MOHAMMED HAMEEDULLAH KHAN, HYDERABAD - 004. PAN: AONPK 6534 N VS. INCOME TAX OFFICER, WARD - 9(2), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: SRI MOHD. AFZAL REVENUE BY: SRI SUNIL BABU, DR DATE OF HEARING: 18/12/2019 DATE OF PRONOUNCEMENT: 14 /01/2020 ORDER THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) - 7, HYDERABAD IN APPEAL NO.0294/CIT(A) - 7/2017 - 18, DATED 26/12/2018 PASSED U/S. 143(3) R.W.S 147 AND U/S. 250(6) OF THE ACT FOR THE A.Y. 2010 - 11. 2. THE ASSESSEE HAS RAISED THE FOLLOWIN G GROUNDS IN HIS APPEAL: 1. THE ORDER OF THE LD. CIT(A) IS AGAINST THE LAW, WEIGHT OF EVIDENCE AND PROBABILITIES OF CASE. 2. THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT THE A.O. HAS NOT FOLLOWED THE PROCEDURE FOR SERVICE OF NOTICE, LAID DOWN IN THE MANU AL OF OFFICE PROCEDURE (VOLUME - II TECHNICAL) (FEBRUARY 2003) OF THE DEPARTMENT, THEREFORE, ERRED IN NOT DECLARING THE NOTICE U/S. 148 AS INVALID. 3. THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT THE MATTER IS REFERRED TO THE VALUATION CELL FOR VALUATION, T HEREFORE, ERRED IN ADOPTING THE SALE CONSIDERATION AT RS. 11,25,000/ - INSTEAD OF RS. 9,00,000/ - BY APPLYING THE PROVISIONS OF SECTION 50C OF THE ACT. 2 4. THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT THE ASSESSEE IS HOLDING A HUSK OF TITLE WHEREAS AND ALL T HE BUNCH OF RIGHTS OF OWNERSHIP INCLUDING POSSESSION OF THE PROPERTY AND RIGHT TO RECEIVE THE SALE CONSIDERATION ARE TRANSFERRED TO THE CO - VENDOR, THEREFORE, THE ENTIRE SALE CONSIDERATION WAS RECEIVED BY CO - VENDOR AND THEREFORE, NO AMOUNT IS TAXABLE IN HAN DS OF ASSESSEE. 5. THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT THE SUBJECT PROPERTY IS EMBEDDED WITH LITIGATIONS, THEREFORE, THE ASSESSEE SPENT HUGE AMOUNTS FOR ACQUIRING THE SAME, THEREFORE, COST OF ACQUISITION SHOULD HAVE BEEN DECIDED AS PER THE MARKET VALUE PER SQ YARD AS ON 2001/2004 AS PER THE MARKET VALUE PER SQ YARD OR ACTUAL AMOUNTS SPENT. 6. THE LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER AND FURTHER ERRED IN ENHANCING THE INCOME BY AN AMOUNT OF RS. 2,50,000/ - . 7. THE LD. CI T(A) ERRED IN CONFIRMING THE ORDER OF THE A.O. AS THE DEMAND NOTICE DOES NOT CONTAIN THE PAN NUMBER OF THE ASSESSEE, THEREFORE, OUGHT TO HAVE HELD THAT THE DEMAND IS NOT ENFORCEABLE. 8. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR MODIFY THE ABOVE GROUND S OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF APPEAL, IF IT IS CONSIDERED NECESSARY. 3. AT THE OUTSET, THE LD. AR SUBMITTED BEFORE US THAT THE LD. CIT (A) HAS PASSED EX - PARTE ORDER WITHOUT PROVIDING AN 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 ONE MORE OPPORTUNITY TO THE ASSESSEE TO PURSUE THE APPEAL . LD. DR, ON T HE OTHER HAND, VEHEMENTLY OPPOSED TO THE SUBMISSIONS OF THE LD. AR AND ARGUED THAT SUFFICIENT OPPORTUNITIES HAD BEEN PROVIDED TO THE ASSESSEE HOWEVER, ON THE GIVEN DATES OF HEARING, NEITHER THE ASSESSEE NOR HIS REPRESENTATIVE APPEARED BEFORE THE LD. CIT (A ). IT WAS FURTHER SUBMITTED THAT THE LD. CIT (A) HAD NO OTHER OPTION BUT TO PASS EX - PARTE ORDER ON MERITS 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 APP EAL OF THE ASSESSEE MAY BE DISMISSED. 3 4. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. ON EXAMINING THE FACTS OF THE CASE, I FIND MERIT IN THE SUBMISSIONS OF THE LD. DR. THE LD. CIT (A) HAD POSTED THE CASE ON FOUR OCCA SIONS I.E., 23/8/2018, 11/9/2018, 30/11/2018 AND FINALLY ON 20/12/2018. HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE CIT(A) ON THE ABOVEMENTIONED DATES OF HEARING. THEREFORE, THE LD. CIT (A) WAS LEFT WITH NO OTHER OPTION EXCEPT TO ADJUDICA TE THE APPEAL EX - PARTE. IN THIS SITUATION, I DO NOT FIND MUCH STRENGTH IN THE ARGUMENTS ADVANCED BY THE LD. AR. HOWEVER, CONSIDERING THE PRAYER OF THE LD. AR, AND IN THE INTEREST OF JUSTICE, I HEREBY REMIT THE MATTER BACK TO THE FILE OF LD. CIT (A) IN ORD ER TO CONSIDER THE APPEAL AFRESH BY PROVIDING ONE MORE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. AT THE SAME BREATH, I ALSO HEREBY CAUTION THE ASSESSEE TO PROMPTLY CO - OPERATE BEFORE THE LD. CIT (A) IN THE PROCEEDINGS FAILING WHICH THE LD. CIT (A) SHALL B E AT LIBERTY TO PASS APPROPRIATE ORDER IN ACCORDANCE WITH LAW AND MERITS BASED ON THE MATERIALS ON THE RECORD. IT IS ORDERED ACCORDINGLY. 5. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED HEREINABOVE. PRONOUNCED IN THE OPEN COURT ON 14 TH JANUARY, 2020. SD/ - ( A. MOHAN ALANKAMONY ) ACCOUNTANT MEMBER HYDERABAD, DATED: 14 TH JANUARY, 2020. OKK 4 COPY TO: - 1) MOHAMMED HAMEEDULLAH KHAN C/O. MOHD. AFZAL, ADVOCATE, 402, SHERSONS RESIDENCY, 11 - 5 - 465, CRIMINAL COURT ROAD, RED HILLS, HYDERABAD 04. 2) INCOME TAX OFFICER, WARD - 9(2), IT TOWERS, HYDERABAD. 3) THE CIT(A) - 7, HYDERABAD 4) THE PR. CIT - 7, HYDERABAD 5) THE DR, ITAT, HYDERABAD 6) GUARD FILE