Venkata Subba Ramakrishna, Hyderabad, Hyderabad V. ITO, Ward-6(1), Hyderabad, Hyderabad

ITA 851/HYD/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2462 (ITAT-HYDERABAD)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 16-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N SWAPNA
• Assessee Lawyers: MD AFZAL
• Keywords: Cost of acquisition
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B (SMC), HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 851/HYD/2017 ASSESSMENT YEAR: 2007-08 V.V.S. RAMA KRISHNA, HYDERABAD [PAN: ABLPV1916E] VS INCOME TAX OFFICER, WARD-6(1), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI MD. AFZAL, AR FOR REVENUE : SMT. N. SWAPNA, DR DATE OF HEARING : 30-10-2017 DATE OF PRONOUNCEMENT : 31-10-2017 O R D E R THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS)-12, HYDERABAD, DATED 01-03-2017 FOR THE AY. 2007-08. 2. THE GROUNDS RAISED BY ASSESSEE ARE AS UNDER: 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-12 HYDERABAD, IS AGAINST THE LAW, WEIGHT OF EVIDENCE A ND PROBABILITIES OF CASE. 2. THE LEARNED COMMISSIONER ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER WHEREIN, THE ASSESSMENT WAS COMPL ETED WITHOUT GIVING THE DEDUCTION U/S 54 OF THE IT ACT. I.T.A. NO. 851/HYD/2017 :- 2 - : 3. THE LEARNED COMMISSIONER OUGHT TO HAVE ACCORDED ONE MORE OPPORTUNITY TO THE ASSESSEE ON 28.02.2017. 4. THE LEARNED COMMISSIONER ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER WHEREIN, THE LONG TERM CAPITAL GA INS WERE DETERMINED AT RS.16,58,1501/-. 5. THE LEARNED COMMISSIONER ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER WHEREIN, THE ASSESSMENT IS COMPLE TED WITHOUT GIVING A SHOW CAUSE LETTER PROPOSING THE ADDITIONS. 6. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR M ODIFY THE ABOVE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF H EARING OF THE APPEAL, IF IT IS CONSIDERED NECESSARY. 3. BRIEFLY STATED, ASSESSING OFFICER (AO) HAS REWORKE D OUT THE CAPITAL GAINS ON DEVELOPMENT AGREEMENT ENTERED INTO BY ASSESSEE WHEREIN ASSESSEE HAS TO GET BUILT UP AREA OF 2726 SQ. FT., ALONG WITH SOME UN-DIVIDED SHARE OF LAND (WHICH WAS NOT AL IENATED). IN THE PROCESS, THE COST OF ACQUISITION WAS REFERRED TO VA LUATION CELL AND THE AO REDUCED THE COST AS ON 01-04-1981. THE CLAI M OF DEDUCTION U/S. 54 WAS NOT CONSIDERED. IN APPEAL BEFOR E THE LD.CIT(A), VARIOUS GROUNDS WERE RAISED BUT LD.CIT(A) AFTER GIVING VARIOUS OPPORTUNITIES, DISMISSED THE APPEAL AS THE COU NSEL DID NOT APPEAR ON LAST POSTING, WITHOUT ANY DISCUSSION ON MERITS . HENCE, THE PRESENT APPEAL. 4. LD. COUNSEL PLACED ON RECORD AN AFFIDAVIT EXPLAIN ING THE REASONS FOR NON-APPEARANCE AS UNDER: AGGRIEVED BY THE ORDER THE ASSESSEE PREFERRED AN A PPEAL BEFORE THE CIT(A)-12. THE CASE WAS POSTED FOR HEARING ON 15.11 .2016, THE ASSESSEE SOUGHT AN ADJOURNMENT WHICH WAS ADJOURNED TO 12.12. 2016, THE ASSESSEE COULD NOT APPEAR ON 12.12.2016, THEREFORE, THE CASE WAS AGAIN POSTED ON 12.01.2017. THE ASSESSEE'S AR APPEARED ON 12.01.201 7 AND THE LEARNED I.T.A. NO. 851/HYD/2017 :- 3 - : COMMISSIONER SOUGHT CERTAIN INFORMATION. AS THE CAS E PERTAINS TO THE FINANCIAL YEAR 2006-07, THEREFORE, THE RELEVANT MAT ERIAL IN SUPPORT OF THE CLAIM OF DEDUCTION U/S. 54 COULD NOT GATHERED IMMED IATELY A FURTHER ADJOURNMENT WAS SOUGHT ON 13.02.2017, THE LEARNED C OMMISSIONER WAS KIND ENOUGH TO ADJOURNED THE CASE TO 28.02.2017. HO WEVER, THE AR OF THE ASSESSEE I.E. MOHD AFZAL WAS OUT OF STATION ON ACCO UNT OF CERTAIN PERSONAL MATTERS WHICH COULD NOT BE POSTPONED, THEREFORE, TH E ORDER RESULTED EX- PARTY CONFIRMING THE ORDER OF THE ASSESSING OFFICER . THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S. 54, THE REFORE HAS STRONG CASE IN FAVOUR OF ASSESSEE, THE HON'BLE BENCH IS PLEADED TO ACCORD ONE MORE OPPORTUNITY TO PRESENT THE CASE BEFORE THE LEARNED COMMISSIONER. 5. AFTER CONSIDERING THE RIVAL CONTENTIONS AND PERUSING THE RECORD, I AM OF THE OPINION THAT THE ORDER OF LD.CIT( A) IS NOT MAINTAINABLE. AS PER THE PROVISIONS OF THE ACT, LD.CIT (A) HAS NO POWER TO DISMISS THE APPEAL FOR NON-APPEARANCE OF THE COUNSEL/ASSESSEE. THE MERITS OF THE GROUNDS ARE OUGH T TO HAVE BEEN CONSIDERED. NOWHERE THE CONTENTIONS RAISED WERE DISCUSSED. THEREFORE, THE ORDER OF LD.CIT(A) IS NOT AS PER THE PR OVISIONS OF THE ACT. 6. THE CONTENTIONS ON CALCULATION OF CAPITAL GAINS, CLA IM OF SECTION 54, ISSUE OF REOPENING ARE REQUIRED TO BE ADJ UDICATED. THAT ALSO INVOLVE WHETHER THE AO HAS POWER TO REFER TO VALUA TION CELL FOR REDUCING THE COST OF ACQUISITION. BE THAT AS IT MAY, S INCE THE ORDER OF CIT(A) HAS NOT DISCUSSED ANY OF THE ISSUES ON MER ITS, I AM OF THE OPINION THAT THE IMPUGNED ORDER REQUIRES TO BE SET ASIDE AND THE ENTIRE APPEAL IS TO BE RESTORED TO THE FILE OF LD.CIT(A ) FOR ADJUDICATION ON MERITS. ASSESSEE IS FREE TO RAISE THE CONTENTIONS AND IN CASE, ASSESSEE DOES NOT APPEAR AND SUBSTANTIATE THE CLAIMS, THE LD.CIT(A) IS FREE TO DECIDE THE ISSUES ON MERITS OF THE I.T.A. NO. 851/HYD/2017 :- 4 - : CONTENTIONS RAISED IN THE GROUNDS OF APPEAL. THE ORDE R OF LD.CIT(A) IS ACCORDINGLY SET ASIDE AND APPEAL IS RESTORED. 7. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST OCTOBER, 2017 SD/- (B. RAMAKOTAIAH) ACCOUNTANT MEMBER HYDERABAD, DATED 31 ST OCTOBER, 2017 TNMM COPY TO : 1. V.V.S. RAMA KRISHNA, C/O. MD. AFZAL, ADVOCATE, 11-5-465, SHERSONS RESIDENCY, FLAT NO. 402, CRIMIN AL COURT ROAD, RED HILLS, HYDERABAD. 2. THE INCOME TAX OFFICER, WARD-6(1), HYDERABAD. 3. COMMISSIONER OF INCOME TAX(APPEALS)-12, HYDERABA D. 4. THE PR. COMMISSIONER OF INCOME TAX-VI, HYDERABAD . 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.