Adiseshu Gunji, Visakhapatnam V. The Income Tax Officer (International Taxation), Visakhapatnam

ITA 661/VIZ/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 6966 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 04-12-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B SATYANARAYANA RAJU
• Assessee Lawyers: SUSEEL KUMAR AGARWAL
• Keywords: Corroborative evidences; Set aside; Capital Gains
• Section: 201(1); 195; 201

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM , . . , BEFORE SHRI N.K.CHOUDHRY, HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH, HONBLE ACCOUNTANT MEMBER ./ I.T. A.NO. 661 /VIZ/20 1 9 ( / A SSESSMENT Y EAR : 20 1 1 - 1 2 ) ADISESHU GUNJI D.NO.53 - 92 - 08 , CHAITANYA NAGAR MADDILAPALEM , VISAKHAPATNAM [PAN : A EHPG5014K ] VS . INCOME TAX OFFICER (INTERNATIONAL TAXATION) VISAKHAPATNAM ( / APPELLANT) ( / RESPONDENT) ./ I.T. A.NO. 662/VIZ/2019 ( / A SSESSMENT Y EAR : 2011 - 12) VENKAYAMMA GUNJI D.NO.53 - 92 - 08 , CHAITANYA NAGAR MADDILAPALEM , VISAKHAPATNAM [PAN : AETPG1987Q] VS. INCOME TAX OFFICER (INTERNATIONAL TAXATION) VISAKHAPATNAM ( / APPELLANT) ( / RESPONDENT) / APPELLANT S BY : SHRI SUSEEL KUMAR AGARWAL, AR / RESPONDENT BY : S HRI B.SATYANARAYANA RAJU, DR / DATE OF HEARING : 05 . 0 4 .202 1 / DATE OF PRONOUNCEMENT : 07 . 0 4 . 202 1 / O R D E R P ER D.S.SUNDER SINGH , ACCOUNTANT MEMBER : TH ESE APPEALS ARE FILED BY THE ASSESSEES AGAINST THE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)],HYDERABAD - 10 IN 2 I.T.A. NO . 661 /VIZ/20 1 9 AND 662/VIZ/2019 , A.Y.20 1 1 - 12 ADISESHU GUNJI AND VENKAYAMMA GUNJI, VISAKHAPATNAM NO.ITBA/APL/S/250/2019 - 20/1018595599(1) AND ITBA/APL/S/250/ 2019 - 20/1018594015(1) DATED 04.10.2019FOR THE ASSESSMENT YEAR (A.Y.) 2011 - 12. SINCE THE FACTS ARE IDENTICAL IN BOTH THE CASES, THESE APPEALS ARE CLUBBED, HEARD TOGETHER AND A COMMON ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE. THE FACTS ARE TAKEN FROM I.T.A. NO.661/VIZ/2019 WHICH ARE APPLICABLE TO I.T.A. NO.662/VIZ/20 19 ALSO. 2. ALL THE GROUNDS OF APPEAL IN THIS CASE ARE RELATED TO TREATING THE ASSESSEE AS ASSESSEE IN DEFAULT U/S 201(1) / 201(1A) OF THE INCOME TAX ACT, 1961 (IN SHORT ACT). BRIEF FACTS OF THE CASE ARE THAT SHRI G.ADISESHU PURCHASED IMMOVABLE PROPERT Y FROM SMT. DODDI ANITHA, NON - RESIDENT INDIAN ALONG WITH OTHER RESIDENTS. SINCE, THE PAYMENT WAS MADE TO NON - RESIDENT, THE ASSESSEE REQUIRED TO DEDUCT TAX U/S 195 OF THE ACT BUT NOT MADE THE DEDUCTION. THE DETAILS OF TRANSACTIONS OF ADISESHU AND VENKAYAMM A ARE AS UNDER : S.NO. EXTENT & ADDRESS OF THE PROPERTY DOC NO./DT.OF REGISTRATION MARKET VALUE (RS.) SHARE OF SMT.DODDI ANITHA (I) BY ADISESHU GUNJI 1. VACANT SITE ADMEASURING 200 SQ.YARDS, SURVEY NO.19/2 CHINA WALTAIR VILLAGE 884/2011 19.02.2011 24,00,000 RS.4,80,000 3 I.T.A. NO . 661 /VIZ/20 1 9 AND 662/VIZ/2019 , A.Y.20 1 1 - 12 ADISESHU GUNJI AND VENKAYAMMA GUNJI, VISAKHAPATNAM (II) BY VENKAYYAMMA GUNJI 2. VACANT SITE ADMEASURING 200 SQ.YARDS, SURVEY NO.19/2 CHINA WALTAIR VILLAGE 885/2011 19.02.2011 24,00,000 RS.4,80,000 THE ASSESSING OFFICER (AO) ALSO FOUND THAT THE NON - RESIDENT S HA VE NOT FILED RETURNS OF INCOME DISCLOSING INCOME FROM THE SAID TRANSACTIONS. THEREFORE, THE AO ISSUED NOTICE U/S 201 AS TO WHY THE ASSESSEE SHOULD NOT BE TREATED AS ASSESSEE IN DEFAULT FOR NON - DEDUCTION OF TAX AT SOURCE U/S 195 AND THERE WAS NO RESPONSE TO NOTICE ISSUED U/S 201 FROM THE ASSESSEE. HENCE, THE AO (ITO, INTERNATIONAL TAXATION) TREATED THE ASSESSEE AS ASSESSEE IN DEFAULT U/S 201(1)/201(1A) AND RAISED THE DEMAND S IN BOTH THE CASES AS UNDER : CHARGEABLE PORTION OF CAPITAL GAINS (RS.) TAX U/S 201( 1) @ 20.6% (RS.) DATE OF TRANSACTION DATE UPTO WHICH INTEREST U/S 201(1A) IS CALCULATED NO. OF MONTHS OF DELAY INTEREST U/S 201(1A) (RS.) TOTAL PAYABLE (RS.) 4,80,000 98,880 19.02.2011 26.03.2018 85 84,048 1,82,928 3. AGAINST THE ORDER OF THE AO, THE ASSESSEE WENT ON APPEAL BEFORE THE CIT(A) AND ARGUED THAT THE ASSESSEE HAS NOT MADE THE PAYMENT TO THE NON - RESIDENT, HOWEVER SUBMITTED THAT , THE PAYMENT WAS MADE TO GPA HOLDER OF 4 I.T.A. NO . 661 /VIZ/20 1 9 AND 662/VIZ/2019 , A.Y.20 1 1 - 12 ADISESHU GUNJI AND VENKAYAMMA GUNJI, VISAKHAPATNAM NON - RESIDENT, HENCE ARGUED THAT THE PROVISI ONS OF SECTION 195 ARE NOT APPLICABLE. THEREFORE, REQUESTED TO CANCEL THE ORDER OF THE AO, FRAMED U/S 201(1)/(1A).HOWEVER, SINCE, THE ASSESSEE FAILED TO FURNISH THE SUPPORTING EVIDENCES IN RESPECT OF THE PAYMENT MADE TO GPA HOLDER, THE LD.CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. 4. AGAINST WHICH THE ASSESSEE FILED APPEAL BEFORE US. DURING THE APPEAL HEARING, THE LD.AR SUBMITTED THAT THE PAYMENT WAS MADE GPA HOLDER OF NON - RESIDENT WHO IS RESIDENT IN INDIA. THE LD.AR ALSO FILED COPY OF THE SALE DEED, AS PER WHICH IT IS OBSERVED THAT THE PAYMENT WAS MADE TO SHRI PAMPANA APPALA NARSAYYA (URAF) BABU RAO, WHO HAPPENS TO BE GPA HOLDER OF MS DODDI ANITHA. HOWEVER, THIS DOCUMENT WAS NOT PLACED BEFORE THE LD.CIT(A), THEREFORE, WE ARE OF THE CONSIDERED VIEW T HAT THE ISSUE NEEDS TO BE RE EXAMINED BY THE LD.CIT(A) AND DECIDE THE ISSUE AFTER VERIFICATION OF THE SALE DEED AND PAYMENTS MADE TO THE GPA HOLDER. 5. THE LD.DR ALSO DID NOT OBJECT FOR REMITTING THE MATTER BACK TO THE FILE OF THE LD.CIT(A). THEREFORE, WE SET ASIDE THE ORDER OF THE LD.CIT(A)AND REMIT THE MATTER BACK TO THE FILE OF THE LD.CIT(A) TO CONSIDER THE SALE DOCUMENT AND DECIDE THE APPEAL AFRESH ON MERITS TAKING IN TO CONSIDERATION OF SUBMISSIONS OF THE ASSESSEE AND THE DECISION OF THIS TRIBUNAL RELIED 5 I.T.A. NO . 661 /VIZ/20 1 9 AND 662/VIZ/2019 , A.Y.20 1 1 - 12 ADISESHU GUNJI AND VENKAYAMMA GUNJI, VISAKHAPATNAM UPON BY THE ASSESSEES. ACCORDINGLY, APPEALS OF THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSE. 6. IN THE RESULT, APPEALS FILED BY THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH APRIL, 2021. SD/ - SD/ - ( ) ( . . ) (N.K.CHOUDHRY) (D.S.SUNDER SINGH) / JUDICIAL MEMBER / ACCOUNTANT MEMBER DATED : 07 .0 4 .2021 L.RAMA, SPS / COPY OF THE ORDER FORWARDED TO : - 1 . / THE ASSESSEE S - (I) ADISESHU GUNJI AND (II) VENKAYAMMA GUNJI D.NO.53 - 92 - 08, CHAITANYA NAGAR, MADDILAPALEM, VISAKHAPATNAM 2 . / THE REVENUE INCOME TAX OFFICER (INTERNATIONAL TAXATION) VISAKHAPATNAM 3. THE COMMISSIONER OF INCOME TAX (IT), HYDERABAD 4. THE COMMISSIONER OF INCOME TAX (APPEALS) , HYDERABAD 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM