Mamatha Divakar Shetty , Hyderabad V. Income Tax Officer, Ward-4(2), Hyderabad

ITA 519/Hyd/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2932 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 15-06-2021
• Assessment Year: 2009-2010
• Appeal Filed On: 12-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D J P ANAND
• Keywords: Set aside
• Section: 54F; 147; 263

Judgement Text

ITA NO 519 OF 2019 MAMATHA DIVAKAR SHETTY HYDERAB AD PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD (THROUGH VIDEO CONFERENCING) BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NO.519/HYD/2019 ASSESSMENT YEAR: 2009-10 SMT.MAMATHA DIVAKAR SHETTY, HYDERABAD PAN:ABNPS7395G VS. INCOME TAX OFFICER WARD 4(2) HYDERABAD (APPELLANT) (RESPONDENT) ASSESSEE BY: SRI PAWAN KUMAR CHAKRAPANI REVENUE BY : SRI D.J.P. ANAND, DR DATE OF HEARING: 15/06/2021 DATE OF PRONOUNCEMENT: 18/06/2021 ORDER PER SMT. P. MADHAVI DEVI, J.M. THIS IS ASSESSEES APPEAL FOR THE A.Y 2009-10 AGAIN ST THE ORDER OF THE CIT (A)-1, HYDERABAD, DATED 11.01. 2019. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IN DIVIDUAL FILED HER RETURN OF INCOME ON 28.3.2011 BY DECLARIN G INCOME OF RS.8,27,280/- AFTER CLAIMING EXEMPTION U/S 54F OF T HE ACT BY DEPOSITING THE CAPITAL GAIN (ARISING OUT OF A SALE OF PROPERTY) INTO SYNDICATE BANK, KACHEGUDA BRANCH. THE CASE WAS REOP ENED U/S 147 OF THE ACT TO APPLY THE PROVISIONS OF SECTION 5 0C OF THE ACT AND ACCORDINGLY THE ASSESSMENT U/S 147 WAS COMPLETE D BY ACCEPTING THE INCOME RETURNED BY THE ASSESSEE. ITA NO 519 OF 2019 MAMATHA DIVAKAR SHETTY HYDERAB AD PAGE 2 OF 4 3. SUBSEQUENTLY, THE CIT PERUSED THE ASSESSMENT REC ORD UNDER THE POWERS VESTED IN HIM U/S 263 OF THE ACT A ND OBSERVED THAT THOUGH THE ASSESSEE HAS RECEIVED NET SALE CONS IDERATION OF RS.1,72,39,500/- AS PER THE SALE DEED DATED 31.07.2 008, SHE HAS DEPOSITED ONLY A SUM OF RS.1,34,00,000/- INTO THE C APITAL GAIN SCHEME ACCOUNT BEFORE THE DUE DATE OF FILING OF THE RETURN OF INCOME AND THE BALANCE OF RS.38,39,500/- REMAINED W ITH THE ASSESSEE AND WAS NOT UTILIZED FOR PURCHASE OF NEW A SSET TILL THE DUE DATE OF FILING OF THE RETURN OF INCOME. HE THER EFORE, DIRECTED THE ASSESSING OFFICER TO BRING THE UNUTILIZED SUM O F RS.38,39,500/- TO TAX. 4. CONSEQUENTIAL ORDER WAS PASSED BY THE ASSESSING OFFICER ON 5.5.2017 AGAINST THE WHICH THE ASSESSEE FILED AN APPEAL BEFORE THE CIT (A). HOWEVER, THE CIT (A) DISMISSED THE APPEAL HOLDING THAT THE APPEAL IS AGAINST THE ASSESSMENT O RDER PASSED AS PER THE DIRECTION OF THE PR. CIT U/S 263 OF THE ACT AND THEREFORE, IT COULD NOT BE DECIDED BY THE CIT (A). AGAINST THIS O RDER OF THE CIT (A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS OF APPEAL: 1. THE ORDER OF THE AUTHORITIES BELOW IN SO FAR AS IT IS AGAINST THE APPELLANT IS OPPOSED TO LAW, EQUITY, WE IGHT OF EVIDENCE, PROBABILITIES AND THE FACTS AND CIRCUMSTA NCES IN THE APPELLANT'S CASE. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) - 1, HYDERABAD, OUGHT TO HAVE GIVEN THE APPELLANT AN OPPORTUNITY BEFORE DISMISSING THE APPEAL, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE APPELLANT DENIES HIMSELF LIABLE TO BE ASSESS ED ON THE TOTAL INCOME OF RS. 54,22,7801-, AS AGAINST THE INC OME DECLARED IN THE RETURN OF INCOME OF RS. 8,27,2801-, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE LEARNED AUTHORITIES BELOW ARE NOT JUSTIFIED IN ADDING THE AMOUNT OF RS. 7,56,0001-, TO THE LONG TERM CAPI TAL GAIN, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO 519 OF 2019 MAMATHA DIVAKAR SHETTY HYDERAB AD PAGE 3 OF 4 5. THE LEARNED AUTHORITIES BELOW ARE NOT CORRECT IN ADDING THE AMOUNT OF RS. 38,39,500/, AS UNUTILISED SALE CONSIDERATION, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. THE LEARNED AUTHORITIES BELOW OUGHT TO HAVE APPR ECIATED THE FACT THAT THE APPELLANT HAS INVESTED A TOTAL AM OUNT OF RS. 1,83,54,514/, TOWARDS PURCHASE OF RESIDENTIAL FLAT, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. THE APPELLANT DENIES HIMSELF LIABLE TO BE ASSESS ED TO INTEREST UNDER SECTION 234A, 2346 & 234C OF THE ACT , UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. 8. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DELETE OR SUBSTITUTE ANY OF THE GROUNDS URGED ABOVE. 9. IN THE VIEW OF THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF THE HEARING OF THE APPEAL, THE APPELLANT PRAYS THAT THE APPEAL MAY BE ALLOWED IN THE INTERES T OF JUSTICE AND EQUITY. 5. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS CHALLENGED THE ORDER U/S 263 OF THE ACT BEFORE THE TRIBUNAL AND THE SAME IS PENDING ADJUDICATION. FURTHER, HE ALSO PRAYED THAT THE APPE AL MAY BE SET ASIDE TO THE FILE OF THE CIT (A) AS THE ORDER OF TH E CIT (A) IS EX-PARTE THE ASSESSEE. 6. THE LEARNED DR, ON THE OTHER HAND, SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 7. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE M ATERIAL ON RECORD AND ALSO THE FACT THAT THE ASSESSEE HAS A LREADY CHALLENGED THE ORDER OF THE CIT U/S 263 OF THE ACT AND THAT SUCH AN APPEAL IS PENDING ADJUDICATION BEFORE THE TRIBUN AL, WE DEEM IT FIT AND PROPER TO SET ASIDE THIS APPEAL TO THE FILE OF THE CIT (A) WITH A DIRECTION TO ADJUDICATE THE APPEAL ON MERITS SUB JECT TO THE ITA NO 519 OF 2019 MAMATHA DIVAKAR SHETTY HYDERAB AD PAGE 4 OF 4 DECISION OF THE ITAT ON THE 263 ORDER IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEE A FAIR OPPORTUNITY OF HEARING. 8. IN THE RESULT, ASSESSEES APPEAL IS TREATED AS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH JUNE, 2021. SD/- SD/- (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER (P. MADHAVI DEVI) JUDICIAL MEMBER HYDERABAD, DATED 18 TH JUNE, 2021. VINODAN/SPS COPY TO: S.NO ADDRESSES 1 SMT. MAMA DIVAKAR SHETTY, H.NO.3-4-821, BARKATPUR A, HYDERABAD 2 INCOME TAX OFFICER WARD 4(2) 7 TH FLOOR, D BLOCK IT TOWERS, AC GUARDS, HYDERABAD 3 CIT (A) - 1, HYDERABAD 4 PR. CIT -1, HYDERABAD 5 DR, ITAT HYDERABAD BENCHES 6 GUARD FILE BY ORDER