Srinivas Bejgam , Hyderabad V. Asst. Commissioner of Income Tax, Circle-15(1), Hyderabad

ITA 809/Hyd/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2137 (ITAT-HYDERABAD)
• Duration Of Justice: 11 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 27-02-2020
• Assessment Year: 2010-2011
• Appeal Filed On: 20-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A C ROUT
• Keywords: Sale consideration of property below Jantri Value; Revised return; Capital Gains
• Section: 54F; 234B; 201; 147; 148; 54; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B - SMC BENCH : HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER ITA NO. 809 /HYD./201 9 ASSESSMENT YEAR: 201 0 - 11 SH RI SRINIVAS BEJGAM VS. A CIT , CIRCLE 1 5 (1) 8 - 43/8/S/3, BA LAJI HILLS HYDERABAD BODUPPAL HYDERABAD 500 013 PAN: A AJPB2833L (APPELLANT) (RESPONDENT) FOR ASSESSEE : S MT. S. SANDHYA, AR. FOR REVENUE : SH. A.C. ROUT , D.R. DATE OF HEARING : 2 7 /0 2 /2020 DATE OF PRONOUNCEMENT : 29 /0 4 /2020 O R D E R TH IS IS ASSESSEES APPEAL FOR A.Y. 201 0 - 11 AGAINST THE ORDER OF LD.CIT(A) - 8 , HYDERABAD DATED 1 5. 0 2.201 9 . 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, AN INDIVIDUAL, RUNNING A PROVISIONAL STORE BY NAME M/S SRI PARAMESHWARA KIRANA & GENERAL STORES HAD DERIVED INCOME FROM BUSINESS AND CAPITAL GAINS. DURING THE PREVIOUS YEAR 2009 - 10, THE ASSESSEE ALONG WITH ANOTHER PERSON SOLD A HOUSE PROPERTY BEARING H.NO.2 - 2 - 94 AND 2 - 2 - 95, CONSISTING OF GROUND FLOOR AND FIRST FLOOR, ON A TOTAL ADMEASURING AND COM PRISING AREA OF 115 SQ. YARDS SITUATED AT AMEERPET, HYDERABAD FOR A CONSIDERATION OF RS.20,00,000/ - VIDE REGISTERED SALE DEED WITH DOCUMENT NO. 1557/2009, DATED 24.06.2009. THE AO OBSERVED THAT THE MARKET VALUE OF THE PROPERTY AS PER THE SALE DEED AS DE TERMINED BY SRO FOR THE PURPOSE OF PAYMENT OF STAMP DUTY WAS RS.41,85,800/ - . THEREFORE, HE WAS OF THE OPINION THAT PROVISIONS OF S.50C OF THE INCOME TAX ACT, 1961 (THE ACT) WERE APPLICABLE IN ASSESSEES CASE. SINCE THE ASSESSEE HAS FILED RETURN OF INCOME FOR A.Y. 2010 - 11 ADMITTING TOTAL INCOME FROM BUSINESS AMOUNTING TO RS.1,53,500/ - AFTER CHAPTER - VIA DEDUCTION, BUT THE ASSESSEE ITA NO. 809 /HYD/201 9 AY: 201 0 - 11 SRI BEJGAM SRINIVAS , HYDERABAD 2 HAD NOT OFFERED THE SAID CAPITAL GAIN TO TAX , THE AO RE - OPENED THE ASSESSMENT U/S 147 OF THE ACT BY ISSUANCE OF A NOTICE U/S 148 OF THE ACT. IN RESPONSE TO THE NOTICE U/S 148 OF THE ACT, THE ASSESSEE SUBMITTED A LETTER STATING THAT ON ACCOUNT OF S ALE OF HOUSE PROPERTY , HIS SHARE WAS ONLY RS.10,00,000/ - AND THE REMAINING SHARE WAS WITH HIS BROTHER , AND OUT OF SALE CONSIDERA TION RECEIVED , HE HAS CONSTRUCTED FIRST FLOOR ON THE EXISTING GROUND FLOOR AT HOUSE BEARING H.NO.8 - 43/8/S/3, BALAJI HILLS, BODUPPAL, HYDERABAD, FOR WHICH THE ASSESSEE HAD CLAIMED EXEMPTION F ROM PAYMENT OF TAX ON LONG TERM CAPITAL GAIN AS HE WAS H OLDING ONLY ONE HOUSE PROPERTY APART FROM THE ONE HOUSE HE HAS SOLD. SINCE THE ASSESSEE FAILED TO DISCLOSE CAPITAL GAIN ON THE ORIGINAL RETURN OF INCOME AND AS THERE WAS NO CLAIM OF DEDUCTION U/S 54F OF THE ACT IN THE ORIGINAL RETURN , AND THE ASSESSEE FAILED TO FILE THE REVISED RETURN OF INCOME, THE AO HELD THAT THE CLAIM OF EXEMPTION U/S 54F IS NOT ACCEPTABLE. THE AO , ACCORDINGLY , BROUGHT THE LONG TERM CAPITAL GAIN OF RS.15,47,244/ - TO TAX. 3. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) AND FILED WRITTEN SUBMISSIONS IN SUPPORT OF HIS APPEAL. THE CIT(A) CONSIDERED THE WRITTEN SUBMISSIONS OF THE ASSESSEE AND OBSERVED THAT THE ASSESSEE HAS NOT FILED ANY PROOF OR EVIDENCE IN SUPPORT OF THE DEDUCTION CLAIMED AND THAT THE ASSESSEE OR HIS REPRESEN TATIVE DID NOT APPEAR BEFORE THE CIT(A) IN SPITE OF SEVERAL NOTICES ISSUED AND OPPORTUNITIES GIVEN. THEREFORE, THE CIT(A) HAS DISMISSED ASSESSEES APPEAL. 4. AGGRIEVED , THE ASSESSEE IS IN SECOND APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GRO UNDS 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 INITIATING PROCEEDINGS ULS 147 OF THE I. T. ACT FOR THE PURPOSE OF INVOKING THE PROVISIONS OF SEC.50C OF THE I. T. ACT. ITA NO. 809 /HYD/201 9 AY: 201 0 - 11 SRI BEJGAM SRINIVAS , HYDERABAD 3 3) THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN CONFIRMING THE ACTIO N OF THE ASSESSING OFFICER IN NOT ALLOWING DEDUCTION U / S 54 F OF THE I.T. ACT. 4) THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) IS NOT JUSTIFIED IN MENTIONING THAT THE APPELLANT DID NOT FURNISH THE DETAILS FOR CLAIMING DEDUCTION ULS 54 OF THE I.T. ACT. 5) THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) OUGHT TO HAVE CONSIDERED THE FACT THAT THE APPELLANT FILED DETAILED WRITTEN SUBMISSIONS AND CLAIMED DEDUCTION U /S 54 OF THE I.T. ACT. 6) THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) OUGHT TO HAVE DECIDED THE QUESTION AS TO WHETHER THE APPELLANT IS ENTITLED FOR DEDUCTION U / S 54 OF THE I.T. ACT. 7) THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN CONFIRMING LEVY OF INTEREST U/S 234A AND 234B OF THE I.T. ACT. 8) ANY OTHER GROUND THAT MAY BE URGED AT T HE TIME OF HEARING. 5. THE LD.COUNSEL FOR THE ASSESSEE , WHILE REITERATING THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW , SUBMITTED THAT THE ASSESSEE HAD ALL THE REQUIRED INFORMATION TO SUBSTANTIATE HIS CLAIM OF DEDUCTION U/S 54F OF THE ACT IN HIS POSSESSION AND PRAYED FOR AN OPPORTUNITY TO PRODUCE THE SAME. LD.COUNSEL SUBMITTED THAT THOUGH THE ASSESSEE HAD NOT CLAIMED DEDUCTION U/S 54F OF TH E ACT BEFORE THE AO , BUT SINCE THE CAPITAL GAIN HAS BEEN BROUGHT TO TAX, HE RAISED THE CLAIM U/S 54F BEFORE THE AO BUT IT WAS DISALLOWED ON THE GROUND THAT IT WAS NOT RAISED IN HIS RETURN OF INCOME. THEREFORE, HE PRAYED THAT SUCH CLAIM MAY BE TREATED AS AN ADDITIONAL GROUND BEFORE THE TRIBUNAL AND PRAYED THAT THE MATTER BE REMANDED TO THE FILE OF AO FOR CONSIDERATION OF SUCH CLAIM ON MERITS . 6 . THE LD.DR , HOWEVER , OPPOSED THE CONTENTIONS OF THE ASSESSEE AND SUBMITTED THAT UNLESS AND UNTIL THE ASSESSE E HAD MADE A CLAIM U/S 54F OF THE ACT IN HIS RETURN OF INCOME , IT CANNOT BE ENTERTAINED AT THIS STAGE. 7 . HAVING REGARD TO RIVAL CONTENTIONS AND MATERIAL PLACED ON RECORD, I FIND THAT IN THE ORIGINAL RETURN OF INCOME , THE ASSESSEE HAS NOT OFFERED THE C APITAL GAIN TO TAX NOR HAS HE CLAIMED DEDUCTION U/S 54F OF THE ACT. IN VIEW OF THE ITA NO. 809 /HYD/201 9 AY: 201 0 - 11 SRI BEJGAM SRINIVAS , HYDERABAD 4 SAME, THE ASSESSMENT ORDER , DISALLOWING THE CLAIM OF DEDUCTION U/S 54F IS JUSTIFIED. HOWEVER, THE ASSESSEE HAD FILED WRITTEN SUBMISSIONS BEFORE THE CIT(A) AND HAD SUBMITTED BEFORE THE TRIBUNAL THAT HE HAD ALL THE RELEVANT EVIDENCE TO SUBSTANTIATE THE CLAIM U/S 54F OF THE ACT. SINCE S.54F OF THE ACT IS A BENEFICIAL PROVI SION AND THE HONBLE COURTS HAVE HELD THAT THE BENEFICIAL PROVISION SHOULD BE CONSTRUED LIBERALLY, I DEEM IT FIT AND PROPER TO ADMIT ASSESSEES CLAIM OF DEDUCTION U/S 54F OF THE ACT AND REMAND THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO CONSIDER T HE ELIGIBILITY OF THE ASSESSEE FOR DEDUCTION U/S 54F OF THE ACT AND ALLOW THE SAME IF THE ASSESSEE SATISFIES THE CONDITIONS . NEEDLESS TO MENTION THAT THE ASSESSEE SHALL BE GIVEN A FAIR OPPORTUNITY OF HEARING. THE ASSESSEE IS DIRECTED TO PRODUCE ALL THE NECESSARY EVIDENCE BEFORE THE AO AND COOPERATE WITH THE AO FOR EARLY COMPLETION OF THE ASSESSMENT. 8 . IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN OPEN COURT ON 29 TH APRIL , 2020. SD/ - (P . MADHAVI DEVI) JUDICIAL MEMBER DATED: 29 TH A PRIL , 2020. *GMV COPY FORWARDED TO: 1. SH. SRINIVAS BEJGAM, H.NO. 8 - 43/8/S/3, BALAJI HILLS, HYDERABAD 500 2. 013. 3. ACIT, CIRCLE 15 (1), HYDERABAD 4. CIT(A) - 8 , HYDERABAD. 5. PR.CIT - 7 , HYDERABAD. 6. D.R. ITAT HYDERABAD. 7. GUARD FILE ITA NO. 809 /HYD/201 9 AY: 201 0 - 11 SRI BEJGAM SRINIVAS , HYDERABAD 5 1. DRAFT DICTATED ON 17/03/ 2020 2. DRAFT PLACED BEFORE THE AUTHOR 1 9 /03/2020 23/04/2020 3. DRAFT PLACED BEFORE THE SECOND MEMBER 4. DRAFT APPROVED BY SECOND MEMBER 5. APPROVED DRAFT COMES TO SRPS 6. KEPT FOR PRONOUNCEMENT 29 / 0 4 /2020 7. FILE SENT TO BENCH CLERK