Govind Ramulu , Hyderabad V. Income Tax Officer, Ward-4(3), Hyderabad

ITA 390/Hyd/2019

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 6787 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Assessment Year: 2008-2009
• Appeal Filed On: 24-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Capital Gains

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD ‘B’ BENCH, HYDERABAD. BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND SHRI L. P. SAHU, ACCOUNTANT MEMBER (Through Virtual Hearing) ITA Nos.78, 273 & 390/Hyd/2019 (Assessment Year : 2008-09) i) Shri Murali Govind, 2-2-842, Amberpet, Hyderabad. PAN AGSPM6282E ii) Smt. C. Pushpalatha, Hyderabad. PAN BDEPC8043F iii) Shri Govind Ramulu, Hyderabad. PAN AEEPG6598K .....Appellants. Vs. Income Tax Officer, Ward 4(3), Hyderabad. .....Respondent. Appellants By : Shri K.K. Gupta, C.A. Respondent By : Ms. Matta Padma. (D.R.) Date of Hearing : 07.12.2021. Date of Pronouncement : 08.12.2021. O R D E R Per Shri S.S. Godara, J.M. : 2 ITA Nos.78, 273 & 309/Hyd/2019 These three assessees’ as many appeals; all for Assessment Year 2008-09, arise against the Commissioner of Income Tax (Appeals)-1, Hyderabad’s separate orders dt.17.12.2018, 16.01.2019 and 22.02.2019 passed in case Nos.0066/CIT(A)-1/Hyd/2017-18/23018-19; 10090/18- 19/ITO, Ward 10(1), Hyd/ CIT(A)-1/ Hyd/ 2018-19 and 0068/2017-18/ITO-4(3)/CIT(A)-1/Hyd/2018-19 involving proceedings u/s.143(3) r.w.s. 148 in first two and 144 r.w.s. 148 of the Income Tax Act, 1961 ('the Act') in last instance, respectively. Heard all three assessees’ as well as department. Case files perused. 2. It emerges during the course of hearing that all these three appellants/assessees are legal heirs / representatives of one Shri G. Sattaiah. Both the learned lower appellate authorities have added Long Term Capital Gains (LTCG) of Rs.10,82,522 each after transferring the corresponding asset in issue to the vendees concerned. 3 ITA Nos.78, 273 & 309/Hyd/2019 3. Both the learned representatives reiterated their respective stand against and in support of the correctness of the impugned LTCG addition(s) made in the course of assessment and affirmed in the CIT(A) order. It is noticed in this factual backdrop that this tribunal's co-ordinate bench order in ITA No.184/Hyd/2020 dt.26.07.2021 involving yet another co-shareholder Smt. Rupa Rani Mahankali pertaining to the very capital asset; holds that no transfer had taken place in F.Y. 2007-08 relevant to A.Y. 2008-09 as under : “ 7. Having regard to the rival contentions and the material on record, I find that the undisputed facts are that the assessee's father, late Sri G. Sattaiah during his lifetime had sold certain piece of land to various vendees and some of the vendees have also passed away and at the request of the vendees and the legal heirs of deceased vendees, the LRs of the vendor, late Sri Sattaiah, have executed registered documents in their favour. In the light of such circumstances, the assessee and her brothers have executed the sale deed, in respect of properties, whose possession of the property was already given. In view of provisions of section 53A of the Transfer of Property Act, the properties have already been transferred in favour of the vendees except for the execution of the registered sale deeds. As rightly contended by the learned counsel for the assessee, the transfer has taken place in the earlier assessment years when late Sri G. Sattiah was alive. As regards the finding of the Assessing Officer that LTCG has arisen out of retention of 500 square yards by assessee's brothers, I find that the assessee has stated before the CIT(A) that 500 square yards vested with late Sri G. Sattiah and after his demise, his sons received the property and constructed house thereon and that it was not received by assessee's brothers by virtue of gentleman agreement. The CIT(A) has not verified this fact but has merely gone by the presumption that the assessee had relinquished her right over the 500 sq. yards plot retained by assessee's brothers. Since the land retained by the assessee's brothers cannot be treated as transfer in their favour, there cannot be any relinquishment or right by the assessee in such property. Therefore, there is no incidence of any LTCG in favour of the assessee during the alleged assessment year when the registered sale deed was executed by the legal heirs 4 ITA Nos.78, 273 & 309/Hyd/2019 of late Sri G. Sattiah, with regard to the transaction which had taken place during the earlier assessment year. Thus, the assessee's grounds of appeal are allowed.” 4. Learned department representative is fair enough in not pin-pointing the foregoing clinching development regarding learned co-ordinate bench order having held that no transfer in issue took place. We thus delete the impugned LTCG addition(s) for this precise reason alone. All other pleadings on legality as well as on merit are rendered academic. 5. These three assessee's appeals are allowed in above terms. Order pronounced in the open court on 8th Dec., 2021. Sd/- Sd/- (L.P. SAHU) (S.S. GODARA) Accountant Member Judicial Member Hyderabad, Dt. 08.12.2021. * Reddy gp Copy to : 1. (i) Shri Murali Govind, 2-2-842, Amberpet, Hyderabad. (ii) Smt. C. Pushpalatha, 2-3-64/1/19, Jaiswal Garden, Amberpet, Hyderabad. (iii) Shri Ramulu Govind, H.No.2-2-842, Krumba Basti, Hyderabad. 2. ITO, Ward 4(3), Hyderabad. 3. Pr. C I T-1, Hyderabad. 4. CIT(Appeals)-1, Hyderabad. 5. DR, ITAT, Hyderabad. 6. Guard File.