Mirza Mustafa Baig, Hyd, Hyderabad V. DCIT, Cent.Circle-6(now Central Circle-1(3), Hyd, Hyderabad

ITA 750/HYD/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3069 (ITAT-HYDERABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Assessment Year: 2008-2009
• Appeal Filed On: 01-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KANIKA AGARWALDR
• Assessee Lawyers: S RAMA RAO
• Keywords: Capital asset; Search and seizure
• Section: 143(3); 54B; 132

Judgement Text

ITA NOS 750 TO 753 OF 2017 MIRZA MUSTAFA BAIG AND OTHERS HYDERABAD 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 APPEAL IN ITA NO ASSESSEE RESPONDENT A.Y 750/HYD/2017 SHRI MIRZA MUSTAFA BAIG HYDERABAD PAN:ACIPM5312P DY.CIT, CENTRAL CIRCLE-6 NOW C.C.1(3) HYDERABAD 2008-09 751/HYD/2017 SMT.GHASIA BEGUM, HYDERABAD PAN:AOBPB8420L -DO- 2008-09 752/HYD/2017 SHRI MIRZA NADER BAIG HYDERABAD PAN:ARRPM1722B -DO- 2008-09 753/HYD/2017 SHRI MIRZA YUSUF BAIG, HYDERABAD PAN:ARRPM1989Q -DO- 2008-09 ASSESSEE BY: SRI S, RAMA RAO REVENUE BY : MS. KANIKA AGARWAL,DR DATE OF HEARING: 02/11/2020 DATE OF PRONOUNCEMENT: 02/11/2020 ORDER PER BENCH. THESE ARE THE APPEALS OF THE RESPECTIVE ASSESSEES F OR THE A.Y 2008-09 AGAINST THE INDIVIDUAL ORDERS OF TH E CIT (A)-12, HYDERABAD, DATED 13.01.2017. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEES COLLECTIVELY OWNED 5ACRES AND 6GUNTAS OF LAND AT SU RVEY NO.218 AND 219 OF NARSINGI VILLAGE, RAJENDRA NAGAR MANDAL, HYDERABAD. THERE WAS A SEARCH AND SEIZURE OPERATION U/S 132 OF THE I.T. ACT CONDUCTED IN THE RESIDENCE OF THE ASSESSEES ON 17.1 0.2007 AND THE SALE TRANSACTIONS OF THE ABOVE LAND BY THE ASSE SSEES TO M/S. SUN BREAZE ESTATE DEVELOPERS LTD, ONE OF THE COMPAN IES OF DLF ITA NOS 750 TO 753 OF 2017 MIRZA MUSTAFA BAIG AND OTHERS HYDERABAD PAGE 2 OF 4 GROUP COMPANIES WERE FOUND. IN RESPONSE TO THE SEAR CH AND SEIZURE OPERATIONS, THE ASSESSEES FILED THEIR RETUR NS OF INCOME WHICH WERE CONSIDERED AND THE ASSESSMENTS WERE COMP LETED U/S 143(3) OF THE ACT REJECTING THE CLAIM U/S 54B OF TH E ACT. THEREAFTER, THE MATTER REACHED UPTO THE ITAT AND TH E TRIBUNAL REMITTED THE MATTER BACK TO THE FILE OF THE AO WIT H A DIRECTION TO VERIFY WHETHER THE ASSESSEE HAD PURCHASED THE AGRIC ULTURAL LAND WITHIN A PERIOD OF TWO YEARS AND TO RE-DECIDE THE I SSUE IN ACCORDANCE WITH THE LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF HEARING. THE AO, THEREFORE, ISSUED N OTICES TO THE ASSESSEES AND COMPLETED THE ASSESSMENTS U/S 143(3) R.W.S. 254 OF THE I.T. ACT ON 7.5.2012. AGAINST THE SAID ASSES SMENT ORDERS, THE ASSESSEES FILED APPEALS BEFORE THE CIT (A) WHIC H WERE DISMISSED BY THE CIT (A) FOR NON-APPEARANCE OF THE ASSESSEES AND THE ASSESSEES ARE IN SECOND APPEAL BEFORE THE TRIBU NAL BY RAISING THE FOLLOWING GROUNDS OF APPEAL: 1) THE ORDER OF THE LEARNED COMMISSIONER OF INCOME -TAX (APPEALS) IS ERRONEOUS BOTH ON FACTS AND IN LAW. 2) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN DECIDING THE APPEAL WITHOUT PROVIDING OPPORTUNITY TO THE APPELLANT AND WITHOUT CONSIDERIN G THE WRITTEN SUBMISSIONS FILED BEFORE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) BY THE APPELLA NT. 3) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING THE DISALLOWANCE OF THE CLAIM F OR DEDUCTION U/S 54B OF THE I.T.ACT OF RS.96,62,500/ - MADE BY THE ASSESSING OFFICER. 4) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) OUGHT TO HAVE CONSIDERED THE DETAILED WRITTEN SUBMISSIONS FILED BEFORE HIM AND ALLOWED THE CLAIM OF THE APPELLANT. 5) ANY OTHER GROUND OR GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING. 3. IT IS THE CASE OF THE ASSESSEE THAT THOUGH THE A SSESSEE HAVE FILED APPEALS ALONG WITH THE WRITTEN SUBMISSIO NS BEFORE THE ITA NOS 750 TO 753 OF 2017 MIRZA MUSTAFA BAIG AND OTHERS HYDERABAD PAGE 3 OF 4 CIT (A), THE CIT (A) HAS DISMISSED THE APPEALS FOR NON-APPEARANCE AND NOT ON MERITS. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT ONLY TWO NOTICES FOR HEARING WERE GIVEN AND DUE TO NON- APPEARANCE OF THE ASSESSEE ON THOSE DAYS, THE CIT ( A) HAS DISMISSED THE APPEALS. THE LEARNED COUNSEL FOR THE ASSESSEE PRAYED FOR AN OPPORTUNITY TO SUBMIT THE DETAILS BEF ORE THE CIT (A) AND HENCE PRAYED FOR A REMAND OF THE FILE TO CIT (A ). 5. THE LEARNED DR WAS ALSO HEARD. 6. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE M ATERIAL ON RECORD, WE FIND THAT ALL THE ASSESSEES TOGETHER WERE THE OWNERS OF THE AGRICULTURAL LAND IN NARSINGI VILLAGE, RAJEN DRA NAGAR MANDAL, HYDERABAD AND HAVE SOLD THE SAID PROPERTY T O M/S. SUN BREAZE ESTATE DEVELOPERS LTD. THE AO OBSERVED THAT THE SAID LAND WAS A CAPITAL ASSET AND THEREFORE, THE CAPITAL GAIN WAS LIABLE TO BE BROUGHT TO TAX. THE AO OBSERVED THAT THE ASSESSEE H AS CLAIMED EXEMPTION OF THE CAPITAL GAIN U/S 54B OF THE ACT, T HAT THE ASSESSEE COULD NOT PROVE THAT THE AGRICULTURAL LAND S WERE PURCHASED WITHIN TWO YEARS. THUS, HE DENIED EXEMPTI ON U/S 54B OF THE ACT. AGGRIEVED, THE ASSESSEE PREFERRED AN AP PEAL BEFORE THE CIT (A) WHO CONFIRMED THE ASSESSMENT ORDER FOR NON- APPEARANCE OF THE ASSESSEES. HAVING REGARD TO THE FACT THAT O NLY TWO NOTICES FOR HEARING WERE GIVEN AND THE CIT (A) HAS NOT DISP OSED OF THE APPEAL ON MERITS, WE DEEM IT FIT AND PROPER TO REMA ND THE APPEALS TO THE FILE OF THE CIT (A) WITH A DIRECTION TO RECO NSIDER THE ASSESSEES APPEALS IN ACCORDANCE WITH THE LAW. NEED LESS TO MENTION THAT THE ASSESSEES SHOULD BE GIVEN A FAIR OPPORTUNITY OF HEARING. ITA NOS 750 TO 753 OF 2017 MIRZA MUSTAFA BAIG AND OTHERS HYDERABAD PAGE 4 OF 4 7. IN THE RESULT, ASSESSEES APPEALS ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND NOVEMBER, 2020. SD/- SD/- (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER (P. MADHAVI DEVI) JUDICIAL MEMBER HYDERABAD, DATED 2 ND NOVEMBER,2020. VINODAN/SPS COPY TO: 1 SHRI MIRZA MUSTAFA, SMT.GHASIA BEGUM, SHRI MIRZA NA DER BAIG, SHRI MIRZA YUSUF BAIG - D.NO.9-4-134, QULI QUTUBSHAHI ROAD, TOLI CHOWK, HYDERABAD 500008 2 DY.CIT, CENTRAL CIRCLE-6 (NOW CENTRAL CIRCLE 1(3) , AAYAKAR BHAVAN, BASHEERBAGH, HYDERABAD 3 CIT (A)-12 HYDERABAD 4 PR. CIT CENTRAL, HYDERABAD 5 THE DR, ITAT HYDERABAD 6 GUARD FILE BY ORDER