Ivaturi Mahalakshmamma, Vijayawada V. THE ITO, Ward 2(1), Vijayawada

ITA 611/VIZ/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76457 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-02-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 27-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K SINGH
• Keywords: Sale consideration of property below Jantri Value; Condonation of delay
• Section: 143(3); 50C; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI J.SUDHAKAR REDDY, AM AND SHRI SAKTIJIT DEY, JM ITA NOS.611 & 625/VIZAG/2013 ASST.YEAR 2005-2006 SMT.IVATURI MAHALAKSHMAMMA D.NO.38-5-1, 1 LANE, PUNNAMMATHOTA OPP : AIR CROSS ROADS VIJAYAWADA PAN : AATPI0474P. VS. THE INCOME TAX OFFICER WARD 2(1) VIJAYAWADA. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI C.SUBRAHMANYAM RESPONDENT BY : SHRI R.K.SINGH, ADDL.CIT DATE OF HEARING : 28 .02.2014 DATE OF PRONOUNCEMENT : 04 .0 3 .2014 O R D E R PER J.SUDHAKAR REDDY (AM) : ITA NO.625/VIZAG/2013 IS AN APPEAL FILED BY THE ASS ESSEE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX, VIJAYA WADA, U/S.263 OF THE ACT, DATED 31.03.2010, WHEREIN HE REVISED THE ORDER U/S 143(3) DATED 12.03.2008. 2. THERE IS A DELAY OF 1227 DAYS IN FILING OF THE A PPEAL. THE ASSESSEE SEEKS CONDONATION OF DELAY ON THE GROUND THAT THE CHARTER ED ACCOUNTANT HAS NOT GUIDED THE ASSESSEE PROPERLY AND THIS RESULTED IN NON-FILI NG OF APPEAL AGAINST THE ORDER PASSED U/S 263. WE ARE NOT CONVINCED, AS THIS IS NO T A GOOD AND SUFFICIENT REASON FOR CONDONATION OF HUGE DELAY OF 1227 DAYS. HENCE, WE DISMISS THIS APPEAL ON THE GROUND OF DELAY. 3. WE NOW TAKE UP THE APPEAL IN ITA NO.611/VIZAG/20 13. THIS APPEAL IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A), V IJAYAWADA DATED 03.09.2013, WHEREIN SHE HAS REFUSED TO ENTERTAIN THE APPEAL OF THE ASSESSEE ON MERITS, ON THE GROUND THAT THE ASSESSMENT ORDER IN QUESTION WAS PA SSED IN PURSUANCE TO SPECIFIC ITA NOS.611 & 625/VIZAG/2013. SMT.IVATURI MAHALAXMAMMA. 2 DIRECTIONS GIVEN BY THE CIT, VIJAYAWADA U/S 263 OF THE ACT AND THAT SHE HAS NO JURISDICTION TO INTERFERE IN THE SAME. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THA T THE CIT HAS NOT SPECIFICALLY GIVEN ANY DIRECTION AND THIS IS EVIDEN T FROM THE READING OF PARA 6 OF THE CITS ORDER. HE FURTHER SUBMITS THAT THE SHORT DEMA ND IN THE CASE WAS COMPUTED AT RS.2,60,490 BY CIT WHEREAS THE ASSESSING OFFICER HA S COMPUTED THE SAME ISSUE AT A DIFFERENT FIGURE. HE SUBMITTED THAT THOUGH THE FIRST APPELLATE AUTHORITY SHOULD HAVE CONSIDERED THE ISSUE ON MERITS, AS THE ASSESSI NG OFFICER HAS NOT INDEPENDENTLY APPLIED HIS MIND, DESPITE AN OPEN REM AND BY THE CIT IN 263 PROCEEDINGS, IT WOULD BE APPROPRIATE IF THE MATTER IS REMITTED TO THE FILE OF A.O. TO PASS FRESH ORDER WITHOUT BEING INFLUENCED IN ANY MA NNER ON THE OBSERVATIONS OF THE CIT IN HIS ORDER U/S 263. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, OPPOSED THESE CONTENTIONS AND SUBMITTED THAT THE CIT HAS DI RECTED THE A.O. TO ADOPT UNDIVIDED SHARE OF UNDIVIDED LAND COST ALONG WITH C OMMON AREA OF THE CONSTRUCTED RESIDENTIAL 5 TH FLOOR COMPLEX BUILDING AND WORK OUT THE CAPITAL GA INS. THUS, HE SUBMITTED HIS SPECIFIC DIRECTION AND THE ASSESSING OFFICER HAS NO OTHER CHOICE BUT TO FOLLOW THESE DIRECTIONS. HE PRAYED THAT THE ORDE R OF THE CIT BE UPHELD. 6. RIVAL CONTENTIONS HEARD. ON A CAREFUL CONSIDERAT ION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND ON PERUSAL OF THE PAP ERS ON RECORD AND ORDERS OF THE AUTHORITIES BELOW, CASE LAWS CITED, WE HOLD AS FOLL OWS. 6.1 THE LAST THREE LINES IN PARA 6 OF THE ORDER OF THE CIT U/S 263 ARE EXTRACTED FOR THE READY REFERENCE:- WHILE DOING SO, THE ASSESSING OFFICER IS DIRECTED TO CONSIDER THE APPLICABILITY OF PROVISIONS OF SECTION 50C OF THE I .T.ACT, 1961. THE ASSESSING OFFICER IS DIRECTED TO PASS APPROPRIATE O RDER AS PER LAW. ITA NOS.611 & 625/VIZAG/2013. SMT.IVATURI MAHALAXMAMMA. 3 6.2 THIS SENTENCE SHOWS THAT IN RESPECT OF CERTAIN ASPECTS, THE REMAND BY THE CIT WAS AN OPEN REMAND. BE THAT AS IT MAY, THE ASSE SSING OFFICER MISINTERPRETED THE OPEN REMAND AND COMPUTED THE CAPITAL GAIN. THE FIGURE ARRIVED AT BY THE CIT IN HIS ORDER U/S 263 IS DIFFERENT FROM THE FIGURE ARRI VED AT BY THE A.O. IN HIS ORDER U/S 143(3) READ WITH SECTION 263. UNDER THE CIRCUMSTANC ES, THE CIT SHOULD NOT HAVE DISMISSED THE APPEAL FOR WANT OF JURISDICTION. SHE SHOULD HAVE CONSIDERED THE ARGUMENTS OF THE ASSESSEE ON MERITS, SPECIFICALLY W HEN THE ASSESSEE ALLEGES THAT THE ASSESSING OFFICER HAS NOT FOLLOWED THE OBSERVAT IONS OR DIRECTION IN THE ORDER OF THE CIT U/S 263 OF THE ACT. 6.3 THOUGH IN THE NORMAL COURSE, WE WOULD HAVE REMA NDED THE MATTER BACK TO THE FILE OF FIRST APPELLATE AUTHORITY, IN THIS CASE WE FIND THAT THE ASSESSING OFFICER IS NOT EXERCISED HIS MIND WHILE ADJUDICATING THE MATTE R. HE WAS FETTERED BY THE OBSERVATIONS MADE BY THE CIT IN HIS ORDER U/S 263. THIS IN OUR MIND COLOURED HIS DECISION. HENCE, WE ARE OF THE CONSIDERED VIEW THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE, IT WOULD BE APPROPRIATE TO REMIT THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION DE NOVO IN ACCORDANCE WITH LAW. THE ASSESSING OFFICER SHALL NOT IN ANY WAY BE INFLUENCE D BY THE ORDER OF CIT PASSED U/S 263 ON 03.03.2010. 7. IN THE RESULT, ASSESSEES APPEAL IN ITA NO.625/V IZAG/2013 IS DISMISSED AND ITA NO.611/VIZAG/2013 IS ALLOWED FOR STATISTICAL PU RPOSES. ORDER PRONOUNCED ON THIS 4 TH DAY OF MARCH, 2014. SD/- SD/- ( SAKTIJIT DEY ) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER VISAKHAPATNAM; DATED : 4 TH MARCH, 2014. DEVDAS* ITA NOS.611 & 625/VIZAG/2013. SMT.IVATURI MAHALAXMAMMA. 4 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT, VIJAYAWADA . 4. CIT(A) VIJAYAWADA . 5. DR, ITAT, VISAKHAPATNAM. 6. GUARD FILE. BY ORDER, //TRUE COPY// (SENIOR PRIVATE SECRETARY) ITAT, VISAKHAPATNAM