Khairunnisa Begum, Vijayawada V. The ITO, Vijayawada

ITA 51/VIZ/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2660 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 09-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , HONBLE ACCOUNTANT MEMBER ITA NO. 5 1 / VIZ /201 7 (ASST. YEAR : 20 11 - 12 ) SMT. KHAIRUNNISA BEGUM, D.NO. 32 - 34 - 4/9, MACHAVARAM, VIJAYAWADA. V S . IT O , WARD - 2 ( 2 ), VIJAYAWADA . PAN NO. BBAPA 1038 C (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI A.S.R.S.S. SIVA PRASAD C A. DEPARTMENT BY : SMT. SUMAN MALIK SR. DR DATE OF HEARING : 24 / 1 0 /201 8 . DATE OF PRONOUNCEMENT : 09 / 1 1 /201 8 . O R D E R PER V. DURGA RAO, JUDICIAL MEMBER TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) , VIJAYAWADA , DATED 26 /0 8 /201 6 FOR THE ASSESSMENT YEAR 20 11 - 12 . 2. THERE IS A DELAY OF 57 DAYS IN FILING THE APPEAL . THE ASSESSEE HAS FILED AN AFFIDAVIT, WHEREIN IT WAS STATED THAT SHE WAS SUFFERING FROM SOME AILMENT AND ALSO NOT AVAILABLE ALL THE REQUIRED INFORMATION FOR FILING THE APPEAL WITH HER, THEREFORE, SHE COULD NOT FILE THE APPEAL IN TIME. THE LD. DEPARTMENTAL REPRESENTATIVE 2 ITA NO. 51/VIZ/2017 ( SMT. KHAIRUNNISA BEGUM ) OPPOSED FOR CONDONATION OF DELAY. WE FIND THAT T HERE IS A SUFFICIENT CAUSE FOR NON - FILING THE APPEAL IN TIME, THEREFORE, IT IS A FIT CASE TO CONDONE THE DELAY. ACCORDINGLY, DELAY IS CONDONED . 3. FACTS OF THE CASE, IN BRIEF, ARE THAT ASSESSEE IS AN INDIVIDUAL , SOLD HER PROPERTY ADMEASURING NEAR ABOUT 200 SQ.YDS. ON 16/03/2006 FOR A SALE CONSIDERATION OF RS. 3.00 LAKHS TO SRI CHILAKA SAMBASIVA RAO AND COMPLETED THE SALE TRAN SACTION. SUBSEQUENTLY, SRI CHILAKA SAMBASIVA RAO SOLD THE PROPERTY TO SMT. VEMURI VIJAYALAKSHMI THROUGH A REGISTERED SALE DEED (DOC UMENT NO. 1 103/2011) , DATED 22/03/2011 FOR A SALE CONSIDERATION OF RS. 3.00 LAKHS , WHICH WAS RECEIVED BY SRI CHILAKA SAMBASIVA RAO THROUGH CHEQUE NO. 588686, DATED 24/03/2011 DRAWN ON STATE BANK OF HYDERABAD, PATAMATALANKA BRANCH, VIJAYAWADA . BASED ON THE ABOVE INFORMATION, THE ASSESSING OFFICER INITIATED THE PROCEEDINGS UNDER SECTION 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'ACT'). ACCORDING TO THE ASSESSING OFFICER, THE ASSESSEE HAS SOLD THE PROPERTY FOR A SALE CONSIDERATION OF RS. 3. 00 LAKHS , AS AGAINST THE SRO VALUE OF RS.11.00 LAKHS . ACCORDING TO THE ASSESSING OFFICER, THOUGH, THE ASSESSEE HAS SOLD THE PROPERTY ON 16/03/2006, THE POSSESSION WAS NOT HANDED - OVER TO SRI CHILAKA SAMBASIVA RAO AND THEREFORE, SUBSEQUENT SALE MADE BY SRI CHILAKA SAMBASIVA RAO TO 3 ITA NO. 51/VIZ/2017 ( SMT. KHAIRUNNISA BEGUM ) SMT.VEMURI VIJAYALAKSHMI IS ON BEHALF OF THE ASSESSEE, HENCE , ASSESSEE HAS TO ADMIT CAPITAL GAINS ARISING ON SALE TRA N SACTION UNDER SECTION 50C OF THE ACT. BEFORE THE ASSESSING OFFICER, THE ASSESSEE HAS SUBMITTED THAT ASSESSEE HAD ENTERED INTO GPA - CUM - SALE AGREEMENT WITH ONE SRI CHILAKA SAMBASIVA RAO FOR A CONSIDERATION OF RS. 3.00 LAKHS, OUT OF WHICH ASSESSEE RECEIVED RS.2.98 LAKHS ON 16/03/2006 AND THE REMAINING AMOUNT OF RS.2,000/ - RECEIVED ON 29/03/2006 AND POSSESSION WAS HANDE D OVER TO SRI CHILAKA SAMBASIVA RAO , AND THEREFORE, SUBMITTED TH A T SECTION 50C HAS NO APPLICATION TO THE PROPERTY WHICH IS ALREADY SOLD ON 16/03/2006. HOWEVER, THE ASSESSING OFFICER HAS NOT AGREED WITH THE SUBMISSIONS MADE BY THE ASSESSEE AND OBSERVED THAT THOUGH , THE GPA - CUM - SALE AGREEMENT ENTERED IN 16/03/2006, NO POSSESSION IS HANDED OVER TO SRI CHILAKA SAMBASIVA RAO, THEREFORE, CAPITAL GAINS HAS TO BE CHARGED IN THE HANDS OF THE ASSESSEE AS PER SECTION 50C OF THE ACT. 4 . ON APPEAL, LD. CIT(A) CONFIRME D THE ORDER OF THE ASSESSING OFFICER. 5 . ON BEING AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE TH E TRIBUNAL. 6 . LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAS ENTERED INTO GPA - CUM - SALE 4 ITA NO. 51/VIZ/2017 ( SMT. KHAIRUNNISA BEGUM ) AGREEMENT ON 16/03/2006 AND AN AMOUNT OF RS. 2.98 LAKHS RECEIVED ON THE SAME DAY , AND SUBSEQUENTLY RS. 2,000/ - WAS RECEIVED ON 29/03/2006 AND THE POSSESSION IS HANDED - OVER. SINCE , SALE TRANSACTION WHICH WAS HAPPENED IN THE YEAR 2006 , SECTION 50C CANNOT BE APPLIED FOR THE SUBSEQU ENT TRA N SACTION , HAPPENED IN YEAR 2011 AND SUBMITTED THAT ADDITION MAY BE DELETED. 7 . ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 8 . WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND ORDERS OF THE AUTHORITIES BELOW. 9 . THE ASSESSEE HAD ENTERED INTO GPA - CUM - SALE AGREEMENT WITH SRI CHILAKA SAMBASIVA RAO THROUGH A REGISTERED DOCUMENT NO. 1110/2006 , DATED 16/03/2006 FOR A SALE CONSIDERATION OF RS.3.00 LAKHS . O N TH E SAME DAY ASSESSEE RECEIVED RS. 2.98 LAKHS AND THE ENTIRE PROPERTY WAS DELIVERED TO THE BUYER - SRI CHILAKA SAMBASIVA RAO AND THE REMAINING BALANCE OF RS. 2,000/ - IS RECEIVED ON 29/03/2006 AND COMPLETE POSSESSION IS HANDED OVER TO THE BUYER. THEREFORE, IT HAS TO BE CONCLUDED THAT THE ASSESSEE HAS SOLD THE PROPERTY TO SRI CHILAKA SAMBASIVA RAO ON 16/03/2006 THROUGH A REGISTERED GPA - CUM - SALE AGREEMENT AND THE POSSESSION IS HANDED - OVER IN THE YEAR 2006 ITSELF . 5 ITA NO. 51/VIZ/2017 ( SMT. KHAIRUNNISA BEGUM ) SUBSEQUENTLY, SRI CHILAKA SAMBASIVA RAO - BUYER HAS SOLD THE PROP E RTY TO SMT. VEMURI VIJAYALAKSHMI ON 22/03/2011 AND RECEIVED SALE CONSIDERATION OF RS. 3.00 LAKHS THROUGH CHEQUE NO. 588686, DATED 24/03/2011 DRAWN ON STATE BANK OF HYDERABAD, CANNOT BE CONSIDERED THAT SRI CHILAKA SAMBASIVA RAO SOLD THE PROPER TY ON BEHALF OF THE ASSESSEE FOR THE REASON THAT THE PROPERTY WAS ALREADY SOLD AND TRANSFERRED IN THE NAME OF SRI CHILAKA SAMBASIVA RAO ON 16/03/2006 BY A REGISTERED DOCUMENT. THEREFORE, THE ASSESSING OFFICER BY CONSIDERING THE SRO VALUE AS ON 22/03/2011 , FOR A SALE TRAN SA CTION WHICH HAS ALREADY BEEN HAPPEN E D IN THE YEAR 2006 , IS NOT CORRECT AND IS INVALID . T HEREFORE, THE ASSESSING OFFICER IS NOT CORRECT IN INVOKING SECTION 50C TO THE GPA - CUM - SALE AGREEMENT WHICH WAS HAPPENED IN THE YEAR 2006. I N VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND THAT THE LD. CIT(A) IS NOT CORRECT IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER , THEREFORE, WE REVERSE THE ORDER OF THE LD. CIT(A) ALLOW THE APPEAL OF THE ASSESSEE . 10 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON TH IS 0 9 T H DAY OF NOV ., 201 8 . S D / - S D / - ( D.S. SUNDER SINGH ) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 0 9 T H NOVEMBER , 201 8 . 6 ITA NO. 51/VIZ/2017 ( SMT. KHAIRUNNISA BEGUM ) VR/ - COPY TO: 1. THE ASSESSEE SMT. KHAIRUNNISA BEGUM, D.NO. 32 - 34 - 4/9, MACHAVARAM, VIJAYAWADA. 2. THE REVENUE ITO, WARD - 2(2), VIJAYAWADA. 3. THE PR. CIT , VIJAYAWADA. 4. THE CIT(A) , VIJAYAWADA. 5. THE D.R . , VIJAYAWADA. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.