Arji Mutyala Rao, Visakhapatnam V. Income Tax Officer, Ward-2(1), Visakhapatnam

ITA 439/VIZ/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7031 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: misc
• Appeal Filed On: 23-08-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Keywords: Sale consideration of property below Jantri Value; Assessment record
• Section: 143(3); 50C; 54F; 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , ACCOUNTANT MEMBER . / I . T .A.NO. 439 /VIZ/201 8 ( / ASSESSMENT YEAR : 20 11 - 12 ) ARJI MUTYALA RAO D.NO.61 - 8 - 34, RK PURAM MALKAPURAM POST VISAKHAPATNAM [PAN :A TIPA7018B ] VS. INCOME TAX OFFICER WARD - 2(1) VISAKHAPATNAM ( / APPELLANT) ( / RESPONDENT) / APPELLANT BY : S HRI G.V.N.HARI , A R / RESPONDENT BY : S MT. SUMAN MALIK, DR / DATE OF HEARING : 2 6 . 0 6 . 201 9 / DATE OF PRONOUNCEMENT : 31 .0 7 . 201 9 / O R D E R P ER SHRI D.S.SUNDER SINGH, ACCOUNTANT MEMBER : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX [CIT(A)] - 10, HYDERABAD VIDE I . T . A . NO. 0119/CIT(A) - 10/2017 - 18/CIT(A) ( HYD - 10/10191/2017 - 18 ) DATED 21.06.2018 FOR THE ASSESSMENT YEAR (A.Y.)2011 - 12. 2 I.T.A. NO . 439 /VIZ/201 8 . A.Y.20 11 - 12 SHRI MUTYALA RAO ARJI . , VISAKHAPATNAM 2. ALL THE GROUNDS OF APPEAL ARE RELATED TO THE ASSESSMENT O F CAPITAL GAINS AS PER SECTION 50C OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) (AS ESTIMATED BY THE DEPARTMENTAL V ALUATION O FFICER) AND REJECTION OF DEDUCTION CLAIMED U/S 54F OF THE ACT. IN THE APPEAL IN FORM NO.36 ORIGINALLY, THE ASSESSEE RAISED THE FOL LOWING GROUNDS OF APPEAL : 1 . THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 10, HYDERABAD IS CONTRARY TO THE FACTS AND ALSO THE LAW APPLICABLE TO THE FACTS OF THE CASE. 2 . THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 10, HYDERABAD IS NOT JUSTIFIED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN ADOPTING THE SALE CONSIDERATION AT RS.90,16,900/ - AS PER THE VALUE ESTIMATED BY THE VALUATION OFFICER AS AGAINST THE ACTUAL SALE CONSIDERATION OF RS.39,10,000/ - ADMITTED BY THE APPELLANT AND THE REBY SUSTAINING THE ADDITION OF RS.19,60,405/ - TOWARDS 1/4TH SHARE OF THE APPELLANT TOWARDS CAPITAL GAINS. 3 . THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 10, HYDERABAD IS NOT JUSTIFIED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN REJECTING THE EX EMPTION OF RS.9,73,000/ - CLAIMED BY THE APPELLANT U/S 54F OF THE ACT, 1961. 4 . ANY OTHER GROUND THAT MAYBE URGED AT THE TIME OF APPEAL HEARING. 3. DURING THE APPEAL HEARING, THE ASSESSEE RAISED THE ADDITIONAL GROUND STATING THAT THE ORDER PASSED BY THE A O DATED 25.10.2016 WAS BARRED BY LIMITATION AS PER THE TIME LIMIT PRESCRIBED U/S 153(2) OF THE ACT, THUS ARGUED THAT THE ORDER PASSED U/S 143(3) IS INVALID AND HENCE, REQUESTED TO ADMIT THE ADDITIONAL GROUND WHICH IS A LEGAL ISSUE AND ALL THE MATERIAL FACTS RELATED T O THE ADDITIONAL GROUND ARE STATED TO BE AVAILABLE I N RECORD AND NO 3 I.T.A. NO . 439 /VIZ/201 8 . A.Y.20 11 - 12 SHRI MUTYALA RAO ARJI . , VISAKHAPATNAM FURTHER INVESTIGATION IS NECESSARY. THE ADDITIONAL GROUND RAISED BY THE ASSESSEE READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, WHETHER THE ASSESSMENT ORDER DT.25.10 .2016 PASSED BEYOND THE TIME LIMIT PRESCRIBED U/S 153(2) OF THE ACT IS LIABLE TO BE QUASHED AS VOID AB INITIO? THE LD.AR FURTHER SUBMITTED THAT ADMISSION OF ADDITIONAL GROUND WOULD RENDER JUSTICE TO THE ASSESSEE AND THE SAID GROUND COULD NOT BE RAISED BEFORE THE FIRST APPELLATE AUTHORITY DUE TO INADVERTENCE AND IT WAS NEITHER INTENTIONAL NOR DELIBERATE. 3.1 THE LD.DR VEHEMENTLY OPPOSED FOR ADMISSION OF THE ADDITIONAL GROUND AND SUBMITTED THAT IT REQUIRE VERIFICATION OF FACTS REGARDING THE CORRECT DATE OF ISSUE OF NOTICE AND PASSING THE ORDER. THE LD.DR FURTHER SUBMITTED THAT IN CASE THE ADDITIONAL GROUND IS ADMITTED, THE APPEAL REQUIRED TO BE REMITTED BACK TO THE FILE OF THE LD.CIT(A) TO ADJUDICATE THE ADDITIONAL GROUND AFTER VERIFICATION OF THE FACTS. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACE D ON RECORD AND FIND MERIT IN THE ARGUMENT OF THE LD.AR FOR ADMISSION OF ADDITIONAL GROUND. THE ADDITIONAL GROUND RAISED BY THE LD.AR QUESTIONS THE VALIDITY OF THE ASSESSMENT FRAMED U/S 143(3) WHICH WAS STATED TO BE 4 I.T.A. NO . 439 /VIZ/201 8 . A.Y.20 11 - 12 SHRI MUTYALA RAO ARJI . , VISAKHAPATNAM PASSED BEYOND THE TIME LIMIT PRESCRIBE D IN THE ACT. THEREFORE, WE ADMIT THE ADDITIONAL GROUND AND TAKE UP THE ADDITIONAL GROUND FOR ADJUDICATION. 4.1. IN THE INSTANT CASE NOTICE U/S 148 WAS ISSUED ON 31.10.2014 AND SERVED ON THE ASSESSEE ON 07.11.2014. THE ASSESSMENT WAS COMPLETED U/S 143( 3) R.W.S.147 ON 26.12.2016. AS PER THE PROVISIONS OF THE ACT, THE ASSESSMENT OUGHT TO HAVE COMPLETED ON OR BEFORE 31.12.2015 , TIME LIMIT AS APPLICABLE FOR THE A.Y.2014 - 15. FOR READY REFERENCE WE EXTRACT THE RELEVANT PROVISIONS OF SECTION 153(2) RELATING TO THE TIME LIMIT FOR PASSING THE REASSESSMENT ORDERS U/S 147 WHICH READS AS UNDER: ( 2) NO ORDER OF ASSESSMENT, REASSESSMENT OR RECOMPUTATION SHALL BE MADE UNDER SECTION 147 AFTER THE EXPIRY OF 8 [ONE YEAR] FROM THE END OF THE FINANCIAL YEAR IN WHICH THE NOTICE UNDER SECTION 148 WAS SERVED : THIS GROUND WAS NOT RAISED BEFORE THE LD.CIT(A) AND THE LD.CIT(A) DID NOT ADJUDICATE THE GROUND. THE FACTS REGARDING THE DATE OF ISSUE OF NOTICE AND THE DATE OF PASSING THE ORDER REQUIRE D TO BE VERIFIED FROM THE ASSESSMENT RECORDS . THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT TH E ISSUE SHOULD BE REMITTED BACK TO THE FILE OF THE CIT(A) AND A CCORDINGLY WE REMIT THE MATTER BACK TO THE FILE OF THE LD.CIT(A) WITH A DIRECTION TO ADJUDICATE ADDITIONAL GROUND RAISED BY THE ASSESSEE AS PER FACTS. THE ASSESSEE IS DIRECTED TO COOPERATE WITH THE CIT(A) FOR DECIDING THE APPEAL AT 5 I.T.A. NO . 439 /VIZ/201 8 . A.Y.20 11 - 12 SHRI MUTYALA RAO ARJI . , VISAKHAPATNAM THE EARLIEST. SINCE WE HAVE REMITTED THE MATTER BACK TO THE FILE OF THE LD.CIT(A) FOR FRESH ADJUDICATION, WE CONSIDER IT IS NOT NECESSARY TO ADJUDICATE THE REMAINING GROUNDS. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST JULY 2019. S D / - S D / - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 31 .0 7 .2019 L.RAMA, SPS / COPY OF THE ORDER FORWARDED TO: - 1. / THE ASSESSEE - ARJI MUTYALA RAO , D.NO.61 - 8 - 34, RK PURAM , MALKAPURAM POST , VISAKHAPATNAM 2. / THE REVENUE - INCOME TAX OFFICER, WARD - 2(1), VISAKHAPATNAM 3. THE COMMISSIONER OF INCOME TAX - 1 , VISAKHAPATNAM 4. THE COMMISSIONER OF INCOME TAX (APPEALS) - 10, HYDERABAD 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM