DCIT, Central Circle-3(1), Hyd, Hyderabad V. L. Preetha Priyadarshini, Sec'bad, Secunderabad

ITA 716/HYD/2016

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 98514 (ITAT-HYDERABAD)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 16-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHAN KUMAR SINGHANIA
• Assessee Lawyers: P MURALI MOHAN RAO
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA.NO. A.Y. APPELLANT RESPONDENT 713/H/2016 2009 - 10 ACIT, CENTRAL CIRCLE-3(1), HYDERABAD. SMT. SUNITA PRASAD SECUNDERABAD PAN BKGPP3507E 714/H/2016 2009 - 10 SMT. LORAINE REENA PETERSON HYDERABAD. PAN APOPP0610C 715/H/2016 2009 - 10 MR. S. SATYANARAYANA HYDERABAD. PAN AULPS1897G 716/H/2016 2009 - 10 SMT. L. PREETHA PRIYADARSHINI, SECUNDERABAD PAN AAUPL9809Q FOR REVENUE : MR. MOHAN KUMAR SINGHANIA FOR ASSESSEE : MR. P. MURALIMOHAN RAO DATE OF HEARING : 1 4 .0 9 .2016 DATE OF PRONOUNCEMENT : 14 .09.2016 ORDER PER D. MANMOHAN, V.P. THESE APPEALS BY THE REVENUE ARE DIRECTED AGAINST THE ORDERS PASSED BY THE CIT(A)-12, HYDERABAD FOR THE A .Y. 2009-2010. SINCE THE ISSUE INVOLVED IN ALL THESE APPEALS IS ID ENTICAL, WE DISPOSE-OF THESE APPEALS BY A COMBINED ORDER, FOR THE SAKE OF CONVENIENCE. THE ONLY GROUND URGED BY THE REVENUE IS AS UNDER : 2. THE ORDER OF CIT(A) HAS ERRED IN QUASHING THE O RDER OF THE ASSESSING OFFICER MADE UNDER SECTION 143(3) READ WI TH SECTION 263 OF THE I.T. ACT, 1961 WHEN FURTHER APPE AL IS PENDING BEFORE THE HONBLE HIGH COURT ON THE SAME I SSUE. 2. AT THE OUTSET, IT MAY BE NOTICED THAT THE REVIS IONAL AUTHORITY SET ASIDE THE ASSESSMENT ORDER, IN EXERCI SE OF THE POWERS VESTED IN HIM UNDER SECTION 263 OF THE ACT AND WHIL E GIVING EFFECT TO 2 ITA.NOS.713 TO 716/H/2016 SMT. SUNITA PRASAD, SECUNDERABAD AND OTHERS. THE SAID ORDER THE ASSESSING OFFICER MADE CERTAIN A DDITIONS WHICH WERE CHALLENGED BEFORE THE CIT(A). THE ASSESSEES ALSO CH ALLENGED THE ORDER PASSED UNDER SECTION 263 OF THE ACT BY FILING APPEA LS BEFORE THE ITAT. VIDE ORDER DATED 20.01.2016 (ITA.NO.901 TO 903/H/20 14, 905 TO 909/H/2014 AND 912/H/2014) IN THE CASE OF MR. SYED RAFIUDDIN AND OTHERS, HYDERABAD VS. ACIT, CENTRAL CIRCLE-3, HYDER ABAD, THE ITAT, A BENCH, HYDERABAD QUASHED THE ORDERS PASSED BY THE R EVISIONAL AUTHORITY BY OBSERVING AS UNDER : 8. IN THE CASE BEFORE US ALSO, SIMILAR CIRCUMSTAN CES EXISTS AND FOR READY REFERENCE PARA 4 OF THE ASSESS MENT ORDER UNDER SECTION 143(3) READ WITH SECTION 263 OF THE I.T. ACT IN THE CASE OF SMT. INDRANI PRASAD PLACED AT PA GE 80 OF THE PAPER BOOK IS REPRODUCED HEREUNDER WHEREIN SIMI LAR OBSERVATIONS HAVE BEEN MADE BY THE RESPECTIVE ASSES SING OFFICERS IN THE CASE OF OTHER ASSESSEES ALSO. 04. FURTHER, IT IS NOTICED THAT THE CAPITAL GAINS ARISING OUT OF TRANSFER OF 10.08 ACRES (WHICH WAS ERRONEOUSLY MENTIONED AS 10.8 ACRES IN THE CORRESPONDENCE HELD WITH THE ASSESSEE INCLUDING THE ORDER U/S 263) + 3 ACRES OF LAND AT SURVEY NO. 172, HYDER NAGAR OF WHICH THE ASSESSEE IS THE ACTUAL LEGAL OWNER. ALSO BY VIRTUE OF THE AGREEMENT OF SAL E CUM GPA ENTERED INTO BY THE ASSESSEE WITH EIGHT ASSIGNEES WHO WERE CO-OWNERS OF THE LAND AT SURVEY NO. 78, HAFEEZPET, ASSESSEE IS THE OWNER OF THIS LAND TOO; SINCE NO CAPITAL GAINS WERE DISCLOSED BY THE ASSESSEE IN THESE TWO SEPARATE LAND TRANSACTION S WHICH TOOK PLACE THE ORDER PASSED EARLIER U/S 143(3 ) R.W.S, 153C BECAME ERRONEOUS IN SO FAR AS IT WAS PREJUDICIAL TO THE INTEREST OF REVENUE. THEREFORE, A PROPOSAL FOR REVISION U/S 263 OF THE ORDER PASSED EARLIER U/S 143(3) R.W.S. 153C WAS SUBMITTED TO THE CIT(C), HYDERABAD ON 26/07/2013. ORDER U/S 263 WAS PASSED BY THE CIT(C), HYDERABAD SETTING ASIDE THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) R.W.S. 153C DATED 30-12-2011 WITH A DIRECTION TO QUANTIFY THE ACTUAL CAPITAL GAI NS ARISING IN THE HANDS OF THE ASSESSEE IN RESPECT OF THE 3 ITA.NOS.713 TO 716/H/2016 SMT. SUNITA PRASAD, SECUNDERABAD AND OTHERS. LAND TRANSACTIONS NOTED ABOVE AFTER MAKING NECESSARY VERIFICATION OF THE ABOVE ISSUES. IT WAS FURTHER DIRECTED TO LOOK INTO THE ASPECT OF PRICING OF THE LAND WHILE COMPUTING THE CAPITAL GAINS. 8.1. THEREFORE, RESPECTFULLY FOLLOWING THE DECISIO N OF THIS TRIBUNAL IN SIMILAR CIRCUMSTANCES, WE HOLD THA T THE REVISION PROCEEDINGS UNDER SECTION 263 OF THE I.T. ACT ARE NOT SUSTAINABLE. IN VIEW OF ALLOWING OF THE ADDITIONAL GROUNDS OF APPEAL NO. 21 AND 22 AND HOLDING THAT THE ORDERS UN DER SECTION 263 ARE NOT SUSTAINABLE, THE OTHER GROUNDS OF APPEAL NEED NO ADJUDICATION AS SUCH ADJUDICATION WOULD RES ULT IN AN ACADEMIC EXERCISE. 3. SINCE THIS ORDER WAS AVAILABLE BEFORE THE CIT(A ) WHILE HEARING THE APPEALS ARISING OUT OF THE ORDER PASSED UNDER SECTION 143(3) READ WITH SECTION 263 OF THE ACT, THE LD. CI T(A) ALLOWED THE APPEALS OF THE ASSESSEE BY OBSERVING IN PARA 6.1 AS UNDER : 6.1. THIS IS DIRECT CASE OF APPEAL CONNECTED TO T HE OUTCOME OF THE APPEAL AGAINST THE ORDER U/S.263, FILED BEFO RE ITAT. CONSIDERING THE ORDER OF HONBLE ITAT, WHICH HAD QU ASHED THE ORDER U/S.263, IN CONSEQUENCE OF WHICH THE ORDER UN DER REFERENCE HAS COME INTO EXISTENCE, I AM OF THE CONSIDERED OPI NION, THAT IN LIGHT OF THE ORDER OF ITAT, THE ORDER OF THE ASSESS ING OFFICER WHICH IS SUBJECT MATTER OF THIS APPEAL, DO NOT SURVIVE. S INCE, THE ORDER UNDER REFERENCE HELD TO BE NON-EXISTENT, THE OTHER GROUNDS OF APPEAL, MAY NOT REQUIRE SEPARATE ADJUDICATION. ON T HESE LINES, THE APPEAL OF THE ASSESSEE AGAINST THE ORDER U/S.143(3) READ WITH SECTION 153C READ WITH SECTION 263, IS TREATED AS A LLOWED. AGGRIEVED, REVENUE IS IN APPEAL BEFORE US. 4. IT IS NOT IN DISPUTE THAT THE ORDER PASSED BY ITAT STI LL HOLDS GOOD INASMUCH AS THE SAME WAS NOT SET ASIDE BY A NY HIGHER FORUM. THEREFORE, AS A NATURAL COROLLARY IT FO LLOWS THAT THE ORDER PASSED BY THE COMMISSIONER UNDER SECTION 263 OF THE ACT IS NON-EXISTENT IN THE EYE OF LAW, IN WHICH EVENT THE ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) READ W ITH SECTION 263 HAS NO LEGS TO STAND. SINCE THE LEARNED COMMISSIO NER HAS 4 ITA.NOS.713 TO 716/H/2016 SMT. SUNITA PRASAD, SECUNDERABAD AND OTHERS. DECIDED THE MATTERS ON THE SAME LINES, WE DO NOT FIND ANY INFIRMITY IN THE ORDERS PASSED BY THE LD. CIT(A). 5. IN THE RESULT, APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.09.2016. SD/- SD/- (S.RIFAUR RAHMAN) (D.MANMOHAN) ACCOUNTANT MEMBER. VICE PRESIDENT HYDERABAD, DATED 14 TH SEPTEMBER, 2016 VBP/- COPY TO: 1. THE ACIT, CENTRAL CIRCLE-3(1), 7 TH FLOOR, AAYAKAR BHAVAN, BASHEERBAGH, HYDERABAD 500 004. 2. SMT. SUNITA PRASAD, 506, A.C. SHARMA COMPLEX, S.D. ROAD SECUNDERABAD. 3. SMT. LORAINE REENA PETERSON, H.NO.1-68, LINGOJIGU DA, SAROORNAGAR, HYDERABAD. 4. MR. S. SATYANARAYANA, PLOT NO.26, INDRAPRASTHA COL ONY, GSI (PO), BANDLAGUDA, HYDERABAD. 5. SMT. L. PREETHA PRIYADARSHINI, B5, KIRAN ENCLAVE, SIKH ROAD, SECUNDERABAD. 6. COMMISSIONER OF INCOME TAX-(APPEALS)-12, HYDERAB AD 7. PR. COMMISSIONER OF INCOME TAX-(CENTRAL), HYDERAB AD 8. DEPARTMENTAL REPRESENTATIVE ITAT, A BENCH, HYDERAB AD 9. GUARD FILE.