ACIT, Cir-8(1), Hyderabad V. Hamsa Gouni Balraj Goud (IND), R.R.Dist

ITA 439/HYD/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3284 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 17-03-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: VENKAT REDDY
• Assessee Lawyers: S RAMA RAO
• Keywords: Capital asset

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI G.C.GUPTA, VICE PRESIDENT AND SHRI AKBER BASHA, ACCOUNTANT MEMBER ITA NO.439/HYD/11 : AS STT. YEAR 2007-08 ASSTT. COMMISSIONER OF INCOME - TAX , CIRCLE 8(1), HYDERABAD V/S. SHRI HAMSA GOUNI BALRAJ GOUD (IND), BANDLAGUDA, JAGAIR, RAJENDRA NAGAR MANDAL, R.R.DISTRICT. ( PAN - ASZPG 1339 F ) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VENKAT REDDY RESPONDENT BY : SHRI S.RAMA RAO O R D E R PER G.C.GUPTA, VICE PRESIDENT: THIS APPEAL BY THE REVENUE FOR THE ASSESSMENT YEA R 2007- 08 IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONE R OF INCOME- TAX(APPEALS). 2. LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT GROUND OF APPEAL NO.2 COVERS THE ISSUE INVOLVED IN THIS APPEAL. GROUND OF APPEAL NO.2 OF THE REVENUE READS AS UNDER - 2. THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) ERRED IN HOLDING THAT THE LAND OR THE CAPITAL ASSET IN QU ESTION TRANSFERRED BY THE ASSESSEE IS UNDER RAJENDRA NAGAR MUNICIPALITY, WHICH IS NOT NOTIFIED BY THE CENTRAL GOVERNMENT FOR THE PURPOSE OF TREATING THE SAME AS CAPITAL ASSET AS REQUIRED BY U/S. 2(14)(III)(B) OF IT ACT 1961. ITA NO.439/HYD/11 SHRI HAMSA GOUNI BALRAJ GOUD (IND), BANDLAGUDA, JAGAIR, RAJENDRA NAGAR MANDAL, R.R. D ISTRICT. 2 3. LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT AGRICULTURAL LAND SOLD BY THE ASSESSEE FALLS WITHIN THE MEANING OF CAPITAL ASSET AS PER DEFINITION IN S.2(14) OF THE I.T. ACT AND T HEREFORE, HAS TO BE SUBJECTED TO CAPITAL GAINS TAX. HE RELIE D ON THE ORDER OF THE ASSESSING OFFICER. THE LEARNED COUNSEL FOR THE ASS ESSEE SUBMITTED THAT THE ISSUE INVOLVED IN THE GROUNDS OF APPEAL IS COVE RED IN FAVOUR OF THE ASSESSEE WITH THE DECISION OF THE HYDERABAD BENCH O F THE TRIBUNAL IN SHRI SRINIVAS PANDIT (HUF) V/S. ITO (ITA NO.56/HYD/ 2007), WHEREIN IT WAS HELD THAT AGRICULTURAL LAND FALLING WITHIN RAJE NDRANAGAR MUNICIPALITY IS NOT A CAPITAL ASSET AS PER S.2(14) OF THE ACT AND ACCORDINGLY, NOT LIABLE TO CAPITAL GAINS TAX. H E RELIED ON THE ORDER OF THE CIT(A). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSION AND HA VE PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND ALSO THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SHRI SRINIVAS PANDIT (HUF) DATED 23.4.2010 CITED SUPRA. WE FIND THAT THE ASSESSMENT IN THIS CASE WAS FRAMED EX-PARTE UNDER S.144 READ WITH S.147 OF THE ACT, AS THE ASSESSEE DID NOT CO-OPERAT E WITH THE DEPARTMENT AT THE TIME OF ASSESSMENT . IN THESE FAC TS, WE HOLD THAT IT SHALL BE JUSTIFIED TO SET ASIDE THE ISSUE INVOLVED IN THE GROUNDS OF APPEAL TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO FRAME THE ASSESSMENT DE-NOVO IN ACCORDANCE WITH LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND IN THE L IGHT OF THE DECISION OF THE TRIBUNAL IN THE CASE OF SHRI SRINIVAS PANDIT (HUF) CITED SUPRA. WE FURTHER DIRECT THE ASSESSING OFFICER TO RECORD A FINDING AS TO WHETHER THE LAND OF THE ASSESSEE FALLS WITHIN THE R AJENDRANAGAR MUNICIPALITY AND CONSEQUENTLY WHETHER THE DECISION OF THE TRIBUNAL IN THE CASE OF SHRI SRINIVAS PANDIT(HUF) IS APPLICABLE TO THE FACTS OF THE ITA NO.439/HYD/11 SHRI HAMSA GOUNI BALRAJ GOUD (IND), BANDLAGUDA, JAGAIR, RAJENDRA NAGAR MANDAL, R.R. D ISTRICT. 3 CASE OF THE ASSESSEE OR NOT, AND ACCORDINGLY DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTU NITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 3.6.2011 SD/- SD/- (AKBER BASHA) (G.C.GUPTA) ACCOUNTANT MEMBER VICE PRESIDENT DT/- 3RD JUNE, 2011 COPY FORWARDED TO: 1. SHRI HAMSA GOUNI BALRAJ GOUD (IND), 4 - 2 - 73/1, N.F.C. COLONY, BANDLAGUDA, JAGAIR, RAJENDRA NAGAR MANDAL, R.R.DISTRICT. 2. ASST. COMMISSIONER OF INCOME - TAX CIRCLE 8 (1), HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS), VIJAYAWADA . 4. COMMISSIONER OF INCOME-TAX II HYDERABAD 5. DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S.