ACIT, Circle -16(2), Hyderabad, Hyderabad V. Dr. Kasu Prasad Reddy, Hyderabad

ITA 72/HYD/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2427 (ITAT-HYDERABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2018
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 14-01-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P MOHAN REDDY
• Assessee Lawyers: A V RAGHURAM
• Keywords: Principle of natural justice; Opportunity of cross examination; Third party statement
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A BENCH: HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA. NO.72/HYD/2015 ASSESSMENT YEAR: 2006 - 07 A CIT, CIRCLE - 16 (2), HYDERBAD. VS. SRI DR. KASU PRASAD REDDY, 1 - 11 - 252/A, ALLADIN MANSION, BEGUMPET, HYDERABAD 500015. PAN: AFQPK 6469 N (APPELLANT) (RESPONDENT) FOR ASSESSEE: SHRI A.V. RAGHURAM FOR REVENUE : SHRI P. MOHAN REDDY, DR DATE OF HEARING : 01.03.2018 DATE OF PRONOUNCEMENT : 21 .03.2018 ORDER PER D. MANMOHAN , VP. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY LD. CIT(A) - V, HYDERABAD AND IT PERTAINS TO THE ASSESSMENT YEAR 2006 - 07. 2. IN THE REVISED GROUNDS OF APPEAL, FOLLOWING GROUNDS WERE URGED BEFORE THE TRIBUNAL: - 1. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS CORRECT IN DELETING THE ADDITION OF RS . 1.04 CR DISREGARDING THE STATEMENT OF SHRI T. RANGA RAO RECORDED U/S 164 OF CR. PC BEFORE THE HONBLE METROPOLITAN MAGISTRATE? 2. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW, THE LD. CIT(A) IS CORRECT IN DELETING THE ADDITION OF RS. 1.04 C RS, WHEN THE MARKETING AGENT SHRI T. RANGA RAO ACKNOWLEDGED THE RECEIPT OF ON - MONEY ON PURCHASE OF PLOT? 3. WHETHER, IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS CORRECT IS DELETING THE ADDITION MADE ON ACCOUNT OF CAPITAL GAIN B Y STATING THAT THE PROVISIONS OF SECTION 2(47) OF INCOME TAX ACT AND SECTION 53A OF THE TRANSFER OF PROPERTY ACT ARE NOT ATTRACTED IN THIS CASE? 2 3. AS REGARDS GROUNDS NO.1 AND 2, LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT AN IDENTICAL ISSUE HAS CO ME UP BEFORE THE ITAT AS WELL AS HONBLE HIGH COURT IN THE CASE OF SHRI G. MAHESH BABU VS. DCIT, WHEREIN THE ISSUE WAS SET ASIDE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION. LEARNED COUNSEL FOR THE ASSESSEE ALSO ADMITTED THAT THE ISSUE IS IDENTICAL. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A DIRECTOR IN MAXIVISION LASER CENTRE (P) LIMITED. FOR THE YEAR UNDER CONSIDERATION ASSESSEE ADMITTED A TOTAL INCOME OF RS. 36,99,510/ - . THOUGH IT WAS ORIGINALLY PROCESSED U/S 143(1) OF THE ACT, IT WAS LATER REOPENED BY ISSUING A NOTICE U/S 148 OF THE ACT, WHEREIN IT WAS NOTICED THAT THE ASSESSEE PURCHASED PLOT NO. A - 8 ADMEASURING 1338 SQ. YARDS LOCATED AT BOULDER HILLS COMMUNITY, MANIKONDA, HYDERABAD WHEREIN TOTAL CONSIDERATION WAS MENTIONE D AT RS. 69,65,000/ - . ACCORDING TO THE ASSESSING OFFICER, THE ASSESSEE HAS PAID RS. 1,04,47,500/ - OVER AND ABOVE THE REGISTERED VALUE REFLECTED IN THE SALE DEED AND THUS HE BROUGHT TO TAX THE AFOREMENTIONED SUM BY TREATING IT AS UNDISCLOSED INVESTMENT WHI CH WAS DELETED BY THE LD. CIT(A) ON THE GROUND THAT THE ADDITION WAS MADE MERELY ON THE BASIS OF THIRD PARTY STATEMENT AND THERE IS NO CORROBORATIVE EVIDENCE TO PROVE THAT THE ASSESSEE HAD REALLY PAID RS. 1.04 CRS OVER AND ABOVE THE AGREED SALE CONSIDERATI ON. 5. HOWEVER, IN THE CASE OF SHRI G. MAHESH BABU, THE TRIBUNAL SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER TO REDECIDE THE MATTER AFRESH AND THE HONBLE HIGH COURT AFFIRMED THE ORDER OF THE TRIBUNAL ON THE GROUND THAT EVEN IF THERE IS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE, THE ORDER NEED NOT BE QUASHED, BUT TO BE SET ASIDE. 6. CONSISTENT WITH THE VIEW TAKEN THEREIN, WE SET ASIDE THE MATTER TO THE FILE OF THE A.O. TO RECONSIDER THE ISSUE AFRESH. 3 7. THAT LEAVES US WITH GROUND NO.3. IN THIS REGARD, LD. CIT(A) OBSERVED THAT THE SALE TRANSACTIONS HAVING BEEN CANCELLED AND ADVANCE RETURNED TO THE VENDEE, THERE WAS NO TRANSFER TO MVLCPL AND HENCE THE PROVISIONS OF SECTION 2 (47) READ WITH SECTION 53A OF THE TRANSFER OF PROPERTY ACT DOES N OT ATTRACT. NO MATERIAL WAS PLACED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE TO CONTROVERT THE FINDINGS OF THE LD. CIT(A). WE THEREFORE REJECT THE GROUND NO.3 OF THE REVENUE. 8. IN THE RESULT, APPEAL FILED BY THE REVENUE IS TREATED AS PARTLY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST MARCH, 2018. SD/ - SD/ - (S. RIFAUR RAHMAN) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT HYDERABAD, DATED: 21 ST MARCH, 2018. OKK, SR.PS COPY TO 1. SHRI KASU PRASAD REDDY, 1 - 11 - 252/1A TO 1D, ALLADIN MANSION, 3 RD STREET, BEGUMPET, HYDERABAD. 2. DCIT, CIRCLE 2(2), R.NO. 513, 5 TH FLOOR, SIGNATURE TOWERS, KONDAPUR, HYDERABAD. 3. CIT (A) - V, HYDERABAD. 4. ADDL. CIT, RANGE - 16, HYDERABAD. 5. DR, ITAT, HYDERABAD. 6. GUARD FILE