Sri. Bobba Prasad, Hyderabad V. Asst.CIT, Central Circle 3, Hyderabad

ITA 396/HYD/2014

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3395 (ITAT-HYDERABAD)
• Duration Of Justice: 7 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 20-04-2021
• Assessment Year: 2009-2010
• Appeal Filed On: 10-03-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: LAVANYA
• Keywords: Capital Gains

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER I.T.A. NO. 396/HYD/2014 ASSESSMENT YEAR: 2009-10 SRI BOBBA PRASAD, HYDERABAD VS ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3, HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : MS.LAVANYA FOR SHRI M.MADHUSUDAN, AR FOR REVENUE : SHRI SUNIL KUMAR PANDEY, DR DATE OF HEARING : 20-04-2021 DATE OF PRONOUNCEMENT : 11-06-2021 O R D E R PER S.S.GODARA, J.M. : THIS ASSESSEES APPEAL FOR AY.2009-10 ARISES FROM TH E CIT(A)-VII, HYDERABADS ORDER DATED 30-12-2013 PASSE D IN CASE NO.2715/2011-12/CIT(A)-VII/HYD, INVOLVING PROCEEDIN GS U/S.144 R.W.S.153C OF THE INCOME TAX ACT, 1961 [IN SH ORT, THE ACT]. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEE HAS RAISED THE FOLLOWING SUBSTANTIVE GROUNDS IN THE INSTANT APPEAL: ITA NO. 396/HYD/2014 :- 2 -: 1. THE ORDER OF THE LD.COMMISSIONER OF INCOME TAX (APPEALS)-VII, HYDERABAD IN ITA NO.2715/2011-12/CIT(A)-VII/HYD, DA TED 30-12- 2013 PASSED FOR THE ASSESSMENT YEAR 2009-10 IS ERRO NEOUS BOTH IN LAW AND ALSO ON FACTS OF THE CASE; 2. TAKING NOTE OF THE FACT THAT THE REALTOR, VIZ., THE GPA HOLDER ONLY PAID AN ADVANCE OF RS.50,00,000/- AND FAILED TO PAY THE BALANCE CONSIDERATION OF RS. 5.00 CRORES, THE LD COMMISSIO NER OF INCOME TAX (APPEALS) - VII, HYDERABA OUGHT TO HAVE HELD THAT T HERE WAS A BREACH OF 'CONTRACTUAL OBLIGATION' ON THE PART OF THE REAL TOR, M/S AASHI REALTORS AND MR SUKESH GUPTA AND THEREBY THE AGREEM ENT OF SALE REFERRED TO BY THE LD ASSESSING OFFICER OUGHT TO HA VE BEEN REGARDED AS VOID IN LAW; 3. GOING BY THE FACT THAT THERE WAS NO DELIVERY OF POSSESSION OF THE PROPERTY BY THE APPELLANT TO THE REALTOR, AFORE SAID, BEYOND ANY IOTA OF DISPUTE WHICH IS PENDING ADJUDICATION IN A COURT OF LAW, THE LD COMMISSIONER OF INCOME TAX (APPEALS) - VII, HYDE RABAD OUGHT TO HAVE NOTICED THAT THERE IS NO TRANSFER WITHIN THE M EANING OF SECTION 2(47)(V) OF THE ACT READ WITH SECTION 53A OF THE TR ANSFER OF PROPERTY ACT, 1882 AND THIS TECHNICAL GROUND, HE OUGHT TO HA VE HELD THAT THE ADDITION MADE BY THE LD ASSESSING OFFICER UNDER THE HEAD 'CAPITAL GAINS' FOR THE ASSESSMENT YEAR UNDER REVIEW, VIZ., AY 2009-10 IS DEVOID OF ANY MERIT AND VOID AB-INITIO; 4. HAVING HELD EMPHATICALLY AT PARA 12.0 OF HIS ORD ER UNDER DISPUTE THAT THE WHOLE MATTER OF SALE IS SUBJUDICE IN A COU RT OF LAW, THE LD COMMISSIONER OF INCOME TAX (APPEALS) - VII, HYDERAB AD OUGHT NOT HAVE CONFIRMED THE ADDITION MADE BY THE LD ASSESSIN G OFFICER UNDER THE HEAD 'CAPITAL GAIN~ FOR THE ASSESSMENT YEAR 200 9-10; 5. HAVING NOTICED FROM THE COPIES OF THE PLAINT IN O.S.NO. 1879/2012, LA.NOS 400/2012, 401/2012, FILED WITH THE HON'BLE A DDITIONAL CHIEF JUDGE, HYDERABAD AND CMA NO.239 OF 2013 FILED WITH THE HON'BLE HIGH COURT OF JUDICATURE AT HYDERABAD, THAT THERE W AS A CLAIM MADE BY THE APPELLANT THAT THE 'IMPUGNED SALE' WAS DONE BEHIND THE BACK OF THE APPELLANT AND HE WAS 'CHEATED' BY THE GPA HO LDER [VIDE PARA 11.0 OF THE IMPUGNED ORDER OF THE LD COMMISSIO NER OF INCOME TAX (APPEALS) - VII, HYDERABAD], THE LD CIT(A) OUGH T TO HAVE CALLED FOR A 'REMAND REPORT' FROM THE ASSESSING OFFICER AFTER CAUSING FULL- FLEDGED VERIFICATION OF THE SUIT PROCEEDINGS AS PRO VIDED BY RULE 46A OF THE INCOME TAX RULES, 1962 BEFORE CONFIRMING THE IM PUGNED ADDITION UNDER THE HEAD 'CAPITAL GAINS'. 6. THAT IN FACTS AND CIRCUMSTANCES OF THE CASE AND LEGAL BACKGROUND PUTFORTH BY THE APPELLANT BEFORE THE LD CIT(A), HE OUGHT TO HAVE ORDERED DELETION OF THE IMPUGNED ADDITION TOWARDS T HE CAPITAL GAINS OF RS 5,84,34,495/ - HOLDING THAT SUCH ADDITION IS UNFAIR, ARBITRARY ITA NO. 396/HYD/2014 :- 3 -: AND AGAINST ALL CANNONS OF EQUITY, JUSTICE AND AGAI NST THE PROVISIONS OF LAW. 7. FOR THESE GROUNDS AND OTHER GROUNDS WHICH MAY BE ADVANCED DURING THE COURSE OF HEARING OF THE APPEAL, IT IS P RAYED THAT THE IMPUGNED ADDITION REFERRED TO ABOVE MAY KINDLY BE O RDERED TO BE DELETED IN THE INTERESTS OF EQUITY AND JUSTICE AND ALSO TO BE IN CONFORMITY WITH THE PROVISIONS OF LAW. 3. BOTH THE LEARNED REPRESENTATIVES TOOK US TO THE CIT(A) S DETAILED DISCUSSION ON THE FOREGOING ROLE OF ASSESSME NT OF CAPITAL GAINS ISSUE READING AS UNDER: 9.0 THE ARGUMENTS AND THE WRITTEN SUBMISSIONS FILE D ARE CONSIDERED. THE ORDER OF THE HON'BLE ADDNL. CHIEF JUDGE, CITY C IVIL COURT, HYDERABAD WAS PURSUED. THE FINDINGS IN THIS COURT O RDER (ORDER DT 12/10/2012 IN I.A NO 400 OF 2012 AND LA NO 401 OF 2 012 IN O.S NO 96 OF 2012) ARE SIGNIFICANT AND HAVE A BEARING ON T HE APPEAL FILED. THE FINDINGS IN THE COURT ORDER ARE:- (A) I.A 400 WAS FILED FOR GRANTING INJUNCTION RESTRAINI NG THE RESPONDENTS (RESPONDENT BEING (1) M/S AASHI REALTOR S REPRESENTED BY SRI SUKESH GUPTA, MANAGING PARTNER, (2) SRI SUKESH GUPTA, (3) AND (4) THE BUYERS OF LAND - SRI U.PRADEEP KUMAR, U RAVI KUMAR) FROM ALIENATING THE SUIT SCHEDULED PROPERTY. (B) THE I.A 401 WAS WAS FILED FOR RESTRAINING THE RESPO NDENTS (ABOVE NAMED PERSONS) FROM INTERFERING WITH THE PEA CEFUL POSSESSION AND ENJOYMENT OF THE PETITIONER IN RESPE CT OF THE SUIT SCHEDULE PROPERTY. (C) THE POINTS OF DETERMINATION SET OUT BY THE COURT IN PARA 6 ON 6 OF THE ORDER WERE:- '(1) WHETHER THE PETITIONER/PLAINTIFF IS ENTITLED F OR TEMPORARY INJUNCTION RESTRAINING THE RESPONDENTS FROM ALIENAT ING THE PETITION/SUIT SCHEDULE PREMISES TO ANY THIRD PARTIE S? (2) WHETHER THE PETITIONER/PLAINTIFF IS ENTITLED FO R TEMPORARY INJUNCTION RESTRAINING THE INTERFERENCE OF RESPONDE NTS / DEFENDANTS IN RESPECT OF THE PETITION/SUIT SCHEDULE PROPERTY? (3) WHAT IS THE RESULT OF BOTH PETITIONS?' (D) THE INCONSISTENCIES, THE PRIMA FACIE EVIDENCES, THE TRIABLE ISSUES AND THE NET RESULT OF/OUTCOME OF THE I.A PET ITION IS GIVEN ITA NO. 396/HYD/2014 :- 4 -: IN THE COURT ORDER FROM PARA LION PAGE 9 TO PARA 17 ON PAGE 14 IS REPRODUCED BELOW FOR BETTER APPRECIATION. '11) FOR DECIDING INTERLOCUTORY APPLICATION, PRIME FACIE CASE ALONE NEEDS EXAMINATION. CLAUSE II (2) (1) OF AGREE MENT OF SALE- CUM-IRREVOCABLE POWER OF ATTORNEY DOCUMENT DATED 21 .03.2009, IS CLEARLY INDICATING THAT PHYSICAL POSSESSION OF T HE PROPERTY WAS DELIVERED WITH METS AND BOUNDS. WHEREAS IN THE HEADING OF THE DOCUMENT, THERE IS ADDITION OF WORDS '(WITHO UT POSSESSION)'. LEARNED COUNSEL FOR RESPONDENTS SERIO USLY DISPUTED THESE WORDS. WHAT IS THE EFFECT OF THIS AD DITION CAN BE ADJUDGED ONLY AFTER COLLECTING NECESSARY ORAL OR DO CUMENTARY EVIDENCE DURING TRIAL THE WORDS 'WITHOUT POSSESSION ' ARE IN HAND WRITING WHEREAS THE OTHER WORDS WITH THE HEADI NG I.E. 'AGREEMENT OF SALE-CUM-IRREVOCABLE POWER OF ATTORNE Y' ARE COMPUTER TYPED. CLAUSE XIV(L) SHOWS THAT BALANCE SA LE CONSIDERATION OF RS.50 LAKHS WILL BE PAID AT THE OF EXECUTION OF SALE DEED AND THE LINK DOCUMENTS ALONG WITH POSSESS ION WILL BE HANDED OVER TO THE VENDEE AT THE TIME OF EXECUTI ON OF SALE DEED. IN PARA 11 OF THE COUNTER AFFIDAVIT FILED ON BEHALF OF RESPONDENTS 3 AND 4 SIGNED BY ONE P PRATAP IT IS ME NTIONED THAT PETITIONER/PLAINTIFF WAS SUPPOSED TO HAND OVER LINK DOCUMENTS WHICH WERE SHOWN AT THE TIME OF NEGOTIATI ON. BUT AT THE TIME OF PREPARATION OF DOCUMENT, THE PETITIONER /PLAINTIFF EXPRESSED THAT SAID DOCUMENT WAS MISPLACED. HENCE, CLAUSE XIV(L) WAS ADDED. CLAUSE XIV(L) IS DEALING WITH DEL IVERY OF POSSESSION. LEARNED COUNSEL FOR PETITIONER ARGUED T HAT POSSESSION OF PROPERTY IS NOT DELIVERED. BUT LEARNE D COUNSEL FOR RESPONDENTS ARGUED THAT CLAUSE XIV(L) IS RELATING T O DELIVERY OF DOCUMENT BUT NOT POSSESSION OF PROPERTY. WHEN TOTAL DOCUMENT IS READ, PARTICULARLY, IN THE LIGHT OF CLAUSE II (2 ) (1) DELIVERY OF POSSESSION OF PROPERTY CAN BE PRIMAFACIE BELIEVED. LEARNED COUNSEL FOR THE PETITIONER/PLAINTIFF ARGUED THAT FO R THE FIGURE OF RS.5,00,000/- (FIVE ERORES) FIGURE RS.50,00,000!- ( FIFTY LAKHS) IS MENTIONED AND TO PROVE PAYMENT OF AMOUNT, BURDEN LI ES ON THE RESPONDENT/DEFENDANTS, THEREFORE, AT THIS PRIMA FAC IE STAGE, IT CAN BE SAFELY TAKEN TOTAL SALE CONSIDERATION IS NOT PAID AND RESPONDENTS/DEFENDANTS ARE NOT ENTITLED TO SELL THE PROPERTY OR INTERFERE WITH THE POSSESSION OF THE PETITIONER/PLA INTIFF. 12) AGREEMENT OF SALE-CUM-IRREVOCABLE POWER OF ATTO RNEY DOCUMENT EXECUTED BY PETITIONER IN FAVOUR OF FIRST RESPONDENT IS DATED 21.03.2009. FIRST RESPONDENT IS CONSTITUTED A S IRREVOCABLE POWER OF ATTORNEY AGENT BY VIRTUE OF TH E SAID DOCUMENT. UNDER SALE DEED DATED 3-4-2009, PROPERTY WAS SOLD BY FIRST RESPONDENT TO RESPONDENTS 3 AND 4. FIRST R ESPONDENT EXECUTED DOCUMENT IN FAVOUR OF RESPONDENTS 3 AND 4 REPRESENTING THE PETITIONER. IT IS NOT THE CASE OF THE ITA NO. 396/HYD/2014 :- 5 -: PETITIONER/PLAINTIFF THAT POWER OF ATTORNEY WAS CAN CELLED BEFORE EXECUTION OF THE SALE DEED BY THE FIRST RESPONDENT IN FAVOUR OF RESPONDENTS 3 AND 4. LEGAL NOTICE WAS GOT ISSUED BY THE PETITIONER ON 14.01.2012. AS PER THE RECITALS IN TH E TEOE! NOTICE, TRANSACTION BETWEEN THE PETITIONER AND RESPONDENTS OUGHT TO HAVE BEEN COMPLETED WITHIN 30 DAYS. FURTHER, A CLOS E READING OF LEGAL NOTICE DATED 14-01-2012 TESTIFIES THAT PETITIONER/PLAINTIFF WOKE UP ON RECEIPT OF NOTICE F ROM INCOME TAX DEPARTMENT. PETITIONER/PLAINTIFF REMAINED SILEN T TILL JANUARY, 2012. WHEN AGREEMENT OF SALE CUM IRREVOCAB LE GENERAL POWER OF ATTORNEY DOCUMENT WAS NOT ACTED UP ON BY RESPONDENT NO.1 AS PER SCHEDULE WHY THERE WAS NO AC TION BY PLAINTIFF IS A MILLION DOLLAR WORTH QUESTION LEFT U NANSWERED. SALE DEED EXECUTED BY FIRST RESPONDENT IN FAVOUR OF RESP ONDENTS 3 AND 4 IS A REGISTERED DOCUMENT. CONSTRUCTIVE NOTICE U/S 3 OF TRANSFER OF PROPERTY ACT CAN BE IMPUTED TO THE PETI TIONER. 13) WHAT IS THE EFFECT OF RECITAL A TO DELIVERY OF POSSESSION AND AS TO BALANCE SALE CONSIDERATION AT RS.50,00,000/- ARE TRIABLE ISSUES BUT THEY ARE PRIMA FACIE RUNNING AGAINST THE PETITIONER. LIKEWISE, WHY LINK DOCUMENTS ARE NOT COLLECTED? WHY ORIGINAL AGREEMENT OF SALE CUM GENERAL POWER OF ATTORNEY DOC UMENT NOT FILED INTO COURT BY RESPONDENTS? WHY THE RESPONDENT S ALLOWED ADDING OF WORDS '(WITHOUT POSSESSION)''? AND WHY TH ERE 'ERE NO LEGAL STEPS FOR PAYMENT OF BALANCE OF RS.50,00,00/- AND FOR RECOVERY OF LINK DOCUMENTS ARE THE IMPORTANT QUESTI ONS NEED ANSWER FROM THE RESPONDENTS. 14) AT THE BEST, PETITIONER/PLAINTIFF CAN BE CONSID ERED AS AN UNPAID VENDOR FOR THE PRESENT. RIGHT OF AN UNPAID V ENDOR IS TO CLAIM PAYMENT OF UNPAID PART OF CONSIDERATION. NOW PETITIONER IS SEEKING CANCELLATION OF DOCUMENT ON THE GROUNDS OF BREACH OF CONTRACT AND NON-PAYMENT OF ENTIRE AGREED SALE CONS IDERATION. THIS IS A MATTER TO BE DECIDED AFTER FULL TRIAL. TO THE EXTENT OF PRESERVATION OF STATUS QUO IN RESPECT OF ALIENATION THE PRIME FACIE CASE, BALANCE OF CONVENIENCE AND IRREPARABLE LOSS ARE FOUND FAVOURING PETITIONER. BUT WITH REGARD TO POSS ESSION THERE ARE CONTRADICTORY RECITALS 'IN THE DOCUMENT RELIED ON BY THE PETITIONER AND THERE IS NO CLARIFY WITH REGARD TO T HE STANDS OF BOTH SIDES BURDEN CANNOT BE THROWN COMPLETELY ON RESPONDENTS/DEFENDANTS AND PETITIONER/PLAINTIFF SHA LL SUCCEED OR FAIL ON THE STRENGTH OF MERITS IN HIS OWN CASE. THERE IS LONG SILENCE ON THE PART OF THE PETITIONER/PLAINTIFF. TH ERE IS NO MATERIAL SHOWING THAT PETITIONER/PLAINTIFF IS STILL IN POSSESSION OF THE PROPERTY. ON THE CONTRARY, REGISTERED DOCUME NT EXECUTED BY FIRST RESPONDENT IN FAVOUR OF RESPONDENTS 3 AND 4 ON BEHALF OF PETITIONER AND IN THE CAPACITY OF GENERAL POWER OF ATTORNEY IS SHOWING DELIVERY OF POSSESSION. WHEN ALL THE FACTS AND ITA NO. 396/HYD/2014 :- 6 -: CIRCUMSTANCES ARE CONSIDERED, PRIME FACIE CASE FOR GRANTING INJUNCTION RESTRAINING INTERFERENCE IN RESPONSE OF THE PETITIONER'S POSSESSION IS NOT FOUND AT PETITIONER FAILED TO PRO VE HIS EXCLUSION POSSESSION OVER THE PROPERTY. 15) OBSERVATIONS MADE ABOVE IN RESPECT OF THE POINT S FRAMED ARE LIMITED ONLY TO THE EXTENT OF CONSIDERING THE P RIMAFACIE CASE AND FOR THE DISPOSAL OF THE PRESENT APPLICATIONS AL ONE. SINCE THERE ARE MANY OTHER TRIABLE QUESTIONS AS TO WHAT I S THE TOTAL SALE CONSIDERATION PAID BY FIRST RESPONDENT TO THE PETITIONER? WHETHER THERE IS ANY BREACH OF TRUST? AND HOW THE P ROPERTY WAS ENJOYED BY THE PARTIES AFTER TRANSACTIONS COVER ED BY THE QUESTIONED DOCUMENTS, AT THIS JUNCTURE, THIS COURT FINDS THAT THERE IS NO PRIME FACIE CASE OR BALANCE OF CONVENIE NCE IN FAVOUR OF THE PETITIONER FOR GRANTING INJUNCTION CONCERNIN G POSSESSION OF THE SUIT SCHEDULE PROPERTY, HOWEVER, TO THE EXTENT OF INJUNCTION RESTRAINING ALIENATION, THIS COURT FINDS THAT THE R ESPONDENTS CAN BE RESTRAINED FROM FURTHER ALIENATING THE PROPERTY IN ORDER TO PRESERVE STATUS QUO AND TO AVOID MULTIPLICITY OF LI TIGATION AND ALSO TO PROTECT THE INTEREST OF THIRD PARTY BONAFID E PURCHASERS. 16) IN VIEW OF THE DISCUSSION MADE ABOVE, POINT NO. 1 IS DECIDED IN FAVOUR OF THE PETITIONER/PLAINTIFF CONCLUDING TH AT PETITIONER/PLAINTIFF IS ENTITLED FOR TEMPORARY INJU NCTION RESTRAINING THE RESPONDENTS FROM ALIENATING THE PET ITION/SUIT SCHEDULE PROPERTY TO ANY THIRD PARTIES AND POINT NO .2 IS DECIDED AGAINST THE PETITIONER/PLAINTIFF CONCLUDING THAT PETITIONER/PLAINTIFF FAILED TO MAKE OUT PRIME FACIE CASE, BALANCE OF CONVENIENCE AND IRREPARABLE LOSS IN RESPECT OF I NTERFERENCE OVER THE PETITION/SUIT SCHEDULE PROPERTY. 17) IN THE RESULT, I.A. NO. 00/2012 IS ALLOWED. TEM PORARY INJUNCTION IS GRANTED RESTRAINING THE RESPONDENTS F ROM ALIENATING SUIT/PETITION SCHEDULE PROPERTY TILL THE DISPOSAL OF SUIT. (E) THE APPELLANT HAD FILED A FURTHER PETITION SEEK ING STAY OF THE ABOVE ORDER OF THE ADDNL. CHIEF JUDGE OF CITY CIVIL COURT BEFORE THE HON'BLE A.P. HIGH COURT IN C.M.A NO 239 OF 2013 ON 27/02/2013. . 10.0 IT IS CLEAR FROM THE ABOVE THAT THE APPELLANT' S CLAIMS WERE NOT ACCEPTED AND ALLOWING OF THE FIRST I.A WAS ONLY TO AVOID FURTHER ENTANGLEMENT AND LITIGATION WITH AVOIDABLE COMPLICA TIONS TO BONAFIDE THIRD PARTIES (PARA 15 OF THE ORDER). ITA NO. 396/HYD/2014 :- 7 -: IT IS ALSO CLEAR THAT IN THE OPINION OF THE HON'BLE ADDNL. CHIEF JUDGE, THE APPELLANT AT BEST CAN BE CONSIDERED AS A N UNPAID VENDOR AND HIS RIGHT IS TO CLAIM THE UNPAID PORTION OF CON SIDERATION (PARA 14 OF THE ORDER). AS REGARDS THE CLAIM FOR CANCELLATION OF DOCUMENT O N THE GROUNDS OF BREACH OF CONTRACT AND NONPAYMENT, THE JUDGE FELT I T CAN BE ONLY DECIDED AFTER A FULL TRIAL. THE JUDGE HAD ALSO FELT THAT PRIMAFACIE THE APPELLANT FAILED TO PROVE HIS EXCLUSIVE POSSESSION OVER THE PROPERTY (PARA 14 OF THE ORDER). 11.0 THE APPELLANT'S PLEA THAT THE ASSESSMENT MADE BE ANNULLED IS NOW CONSIDERED. THE ASST. ORDER IS LEGALLY CORRECT AND WAS BASED ON MATERIAL AVAILABLE IN COURSE OF SEARCH. THE RATE DI FFERENCE BETWEEN 5.50 CRORES AND 6 CRORES THAT THE APPELLANT IS MAKI NG MUCH ISSUE OF, IS NOT A FLAW AT ALL. IN FACT, BETWEEN AN AGREEMENT RATE OF 5.50 CRORE AND THE ACTUAL REGD. SALE DEED RATE OF RS 6 CRORES, THE ACTUAL SALE DEED RATE ALWAYS HAS TO BE ACCEPTED AND CONSIDERED. THE VALUE MENTIONED IN THE SALE AGREEMENT CEDED GROUND TO THE ACTUAL RATE MENTIONED IN THE REGD SALE DEED. ANY ASSESSING OFFI CER WOULD EXAMINE FURTHER ONLY WHEN THE ACTUAL-VALUE IN THE R EGISTERED SALE DEED IS LESS THAN THE VALUE IN THE SALE AGREEMENT-N OT OTHERWISE. AS REGARDS THE CLAIM THAT THE SALE WAS DONE BEHIND THE BACK OF THE APPELLANT AND HE WAS 'CHEATED' BY THE GPA HOLDE R, M/S AASHI REALTORS, THE AO WAS NEVER EVEN AWARE OF SUCH CLAIM S SINCE NO ONE REPRESENTED BEFORE HIM EITHER IN PERSON OR EVEN IN WRITTEN SUBMISSIONS. THUS THERE IS NOTHING WRONG IN THE ASS ESSMENT PERSE TO BE ANNULLED AS SUBMITTED. 12.0 THE WHOLE MATTER OF SALE IS SUBJUDICE NOW. HOW EVER, AS THE ADDNL. CHIEF JUDGE REMARKED, THE APPELLANT (PETITIO NER BEFORE THE COURT) IS AT BEST AN UNPAID VENDOR AND CAN MAKE A C LAIM FOR SETTLEMENT OF HIS DUES. 4. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RIVAL CONTENTIONS AGAINST AND IN SUPPORT OF THE CORRECTNESS OF THE IMPUGNED ADDITION. CASE FILE SUFFICIENTLY INDICATES THAT THE REVENUES ENDEAVOUR ALL ALONG HAS BEEN TO TREAT THE ASS ESSEES GENERAL POWER OF ATTORNEY GPA DOCUMENT DT.21-03-2009 AS TRANSFER WITHIN THE MEANING OF SECTION 2(47) OF THE ACT GIVING RISE TO THE CAPITAL GAINS ADDITION OF RS.5,84,34,495/- THE TAXPAYER, ON THE OTHER HAND, HAS BEEN ALL ALONG BEEN CLAIMING ITA NO. 396/HYD/2014 :- 8 -: THAT THE SAID POWER OF ATTORNEY IS AN INSTANCE OF ALLEGED CHEATING THE TRANSFEREE NAMELY M/S.AASHI REALTORS, WHE REIN THE LATTER HAS PAID ONLY RS.50 LAKHS AND THEREFORE, ON THE BALANCE CONSIDERATION ITSELF HAS NOT BEEN RECEIVED TIL L DATE, BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW AND ON FAC TS IN TREATING IT AS A VALID TRANSFER WITHIN THE MEANING OF TH E ACT. LEARNED COUNSEL FURTHER INVITED OUR ATTENTION TO THE PEND ENCY OF CIVIL PROCEEDINGS BETWEEN THE ASSESSEE AND THE VE NDEE (SUPRA). 5. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO FOREGO ING RIVAL PLEADINGS. WE PRIMA FACIE NOTICE THAT THE ASSESSEES VENDEE HEREIN HAS NOT PAID THE FULL AMOUNT OF RS.5.50 CRORES SINCE ONLY AN AMOUNT OF RS.50 LAKHS HAS BEEN RECEIVE D. THERE IS NO MATERIAL TO THE CONTRARY IN THE CASE RECORDS. WE M AKE IT CLEAR THAT THIS IS NOT THE REVENUES CASE THAT THE ASSESSEE HAS IN FACT RECEIVED THE BALANCE SUM POST-FACTO THE CIT(A) S ORDER PASSED WAY BACK ON 30-12-2013 UNDER CHALLENGE AS WE LL. AND THE CLINCHING FACT FURTHER REMAINS THAT ONCE THE ASSESSEE HAS NOT EVEN RECEIVED THE BALANCE CONSIDERATION, THE SAID ENTIRE AMOUNT COULD NOT BE BROUGHT TO TAX IN HIS HANDS. WE THUS CONFIRM LEARNED LOWER AUTHORITIES ACTION TO THE EXTENT O F THE ACTUAL RECEIPT SUM OF RS.50 LAKHS ONLY WHICH DESERVES ASSESSMENT BEING NON-REFUNDABLE IN NATURE. FACED WITH THIS SITUATION, WE DEEM IT APPROPRIATE TO RESTORE THE INSTANT SOLE ISSUE OF LONG TERM CAPITAL GAINS ADDITION TO THE TUNE OF RS.5,34,34,495/-; BACK TO THE CIT (A) FOR HIS AFRESH DETAILED ADJUDICATION KEEPING IN MIND NOT O NLY THE RELEVANT FACTS AND CIRCUMSTANCES OF THE TRANSFEREES ALL EGED FAILURE IN NOT PAYING THE BALANCE CONSIDERATION BUT ALS O THE ITA NO. 396/HYD/2014 :- 9 -: FINAL OUTCOME OF THE CIVIL PROCEEDINGS TO THIS EFFECT AS PER LAW, WITHIN THREE EFFECTIVE OPPORTUNITIES OF HEARING. THE A SSESSEE OR HIS LEARNED AUTHORISED REPRESENTATIVE SHALL APPEAR B EFORE THE CIT(A) ON OR BEFORE 30-09-2021 WITH ALL THE RELEVANT DETAILS TO BE SUBJECTED TO NECESSARY FACTUAL VERIFICATION WITHIN THREE EFFECTIVE OPPORTUNITIES OF HEARING. 6. THIS ASSESSEES APPEAL IS TREATED AS ALLOWED FOR S TATISTICAL PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH JUNE, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S.S.G ODARA) ACCOUNTANT MEMBER JUDICIAL MEM BER HYDERABAD, DATED: 11-06-2021 TNMM ITA NO. 396/HYD/2014 :- 10 -: COPY TO : 1.SRI BOBBA PRASAD, 6-3-354/8/2/B, HINDI NAGAR, PUNJAGUTTA, HYDERABAD. 2.THE ASST.COMMISSIONER OF INCOME TAX, CENTRAL CIRC LE-3, HYDERABAD. 3.CIT(APPEALS)-VII, HYDERABAD. 4.CIT-CENTRAL, HYDERABAD. 5.D.R. ITAT, HYDERABAD. 6.GUARD FILE.