Ms. Nandini Vishwanath, Hyderabad V. ITO, Ward-12(4), Hyderabad, Hyderabad

ITA 87/Hyd/2015

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8440 (ITAT-HYDERABAD)
• Duration Of Justice: 6 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 15-07-2021
• Assessment Year: 2010-2011
• Appeal Filed On: 21-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Capital Gains
• Section: 54F; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER ITA NO. A.Y. APPELLANT RESPONDENT 87/HYD/2015 2010-11 MS.NANDINI VISHWANATH, BANGALORE [PAN: ADYPV5641F] INCOME TAX OFFICER, WARD-12(4), HYDERABAD 614/HYD/2019 FOR ASSESSEE : SHRI V.SRIDHAR, AR FOR REVENUE : SHRI ROHIT MUJUMDAR, DR DATE OF HEARING : 15-07-2021 DATE OF PRONOUNCEMENT : 18-08-2021 O R D E R PER S.S.GODARA, J.M. : THESE TWO ASSESSEES APPEALS FOR AY.2010-11 ARISE AGAINST THE CIT(A)-11, HYDERABADS ORDER DATED 25-09-2 014, IN CASE NO.0209 / CIT(A)-II, HYD /2013-14, FOLLOWED BY ITS LATTER APPEAL ITA NO.614/HYD/2019 DIRECTED AGAINST THE CIT(A) -1, HYDERABADS ORDER DT.16-01-2019, IN CASE NO.0045 / 2 017-18 / ITO,WARD-12(5) / CIT(A)-1 / HYD / 2018-19, INVOLV ING PROCEEDINGS U/S.143(3) & 154 OF THE INCOME TAX ACT, 1961 [IN SHORT, THE ACT]; RESPECTIVELY. HEARD BOTH THE PARTIES. CASE FILES PERUSED. 2. IT TRANSPIRES AT THE OUTSET THAT ITA NO.87/HYD/2015 SUFFERS FROM 44 DAYS DELAY IN FILING, STATED TO BE ATTRI BUTABLE TO ITA NOS. 87/HYD/2015 & 614/HYD/2019 :- 2 -: THE REASON(S) BEYOND ITS CONTROL AS PER CONDONATION PETITION/AFFIDAVIT. NO REBUTTAL HAS COME FROM THE DEPARTMENTAL SIDE. THE IMPUGNED DELAY IS CONDONED THEREFORE. 3. IT EMERGES AT THE OUTSET THAT THE ASSESSEES SOLE SUBSTANTIVE GROUND IN BOTH THESE APPEALS CHALLENGES CORRECTNESS OF THE LEARNED LOWER AUTHORITIES ACTION DEC LINING SECTION 54F DEDUCTION CLAIM. WE ALSO NOTE THAT THE CIT( A)S FORMER ORDER INVOLVES FIRST ROUND APPEAL AND LATTER OR DER IS DIRECTED AGAINST CONSEQUENTIAL REMAND PROCEEDINGS. HI S FORMER ORDER FORMING SUBJECT MATTER OF APPEAL ITA NO.87/HYD/2 015 APPEARS TO HAVE DIRECTED THE ASSESSING OFFICER TO VERIF Y AS TO WHETHER THE ASSESSEE HAD MADE PAYMENT OF RS.52 LAKHS W ITHIN A PERIOD OF TWO YEARS FROM THE DATE OF TRANSFER OF HE R CAPITAL ASSET I.E., 08-05-2009, COMING TO 08-05-2011 IN OTHER WORDS. 4. BOTH THE LEARNED REPRESENTATIVES ARE AD IDEM THAT THE ASSESSING OFFICER AS WELL AS THE CIT(A) HOLD IN LATT ER APPEAL ITA NO.614/HYD/2019 THAT THE ASSESSEE COULD NOT PROVE THE FOREGOING RE-INVESTMENT OF CAPITAL GAINS TO THE TUNE OF RS.52 LAKHS WITHIN THE STIPULATED TIME PERIOD OF TWO YEARS RE GARDING HER CLAIM. FACED WITH THIS SITUATION, WE ARE OF THE OPINION THAT THE CIT(A)S FORMER ROUND ORDER IN ITA NO.87/HYD/2015 I TSELF DOES NOT DESERVE TO BE CONCURRED WITH SINCE THE LEGISLATURE HAS OMITTED THE CLINCHING STATUTORY EXPRESSION OR HE MAY SE T ASIDE VIDE FINANCE ACT, 2001 W.E.F.01-06-2001. ALL THIS SEALS THE OUTCOME OF THE ASSESSEES BOTH THE INSTANT APPEALS IN OUR CONSIDERED OPINION SINCE THE LATTER CASE ITA NO.614/H YD/2019 ITA NOS. 87/HYD/2015 & 614/HYD/2019 :- 3 -: HAS NO LEGS TO STAND. WE THEREFORE ACCEPT ASSESSEES SO LE SUBSTANTIVE GRIEVANCE IN PRINCIPLE AND SEND IT BACK TO THE CIT(A) FOR HIS AFRESH ADJUDICATION ON MERITS QUA HER SECTION 54F DEDUCTION CLAIM INVOLVING THE BALANCE AMOUNT OF R S.52 LAKHS. THIS MAIN APPEAL IS ACCEPTED FOR STATISTICAL P URPOSES. SO IS THE OUTCOME OF THE ASSESSEES LATTER APPEAL ITA NO.614/HYD/2019. IT IS MADE CLEAR THAT THE ASSESSEE S HALL BE AT LIBERTY TO RAISE ALL FACTUAL/LEGAL ARGUMENTS IN CONS EQUENTIAL PROCEEDINGS. SHE MAY HERSELF OR THROUGH HER LEARNED AUTHORISED REPRESENTATIVE APPEAR BEFORE THE CIT(A) ON O R BEFORE 31-11-2021 TO BE FOLLOWED BY THREE EFFECTIVE OPPORTUNITI ES OF HEARING AT HER OWN RISK AND RESPONSIBILITY. 5. THESE ASSESSEES APPEALS ARE TREATED AS ALLOWED FO R STATISTICAL PURPOSES IN ABOVE TERMS. A COPY OF THIS CO MMON ORDER BE PLACED IN THE RESPECTIVE CASE FILES. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH AUGUST, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S.S.G ODARA) ACCOUNTANT MEMBER JUDICIAL MEM BER HYDERABAD, DATED: 18-08-2021 TNMM ITA NOS. 87/HYD/2015 & 614/HYD/2019 :- 4 -: COPY TO : 1.MS.NANDINI VISHWANATH, BANGALORE. C/O.V.SRIDHAR & CO., CHARTERED ACCOUNTANTS, 12-2-823/A/78, GEETA APARTMENTS, SANTOSHNAGAR COLONY, MEHDIPATNAM, HYDERABAD. 2.THE INCOME TAX OFFICER, WARD-12(4), HYDERABAD. 3.CIT(APPEALS)-11, HYDERABAD. 4.CIT(APPEALS)-1, HYDERABAD. 5.THE PR.CIT-1, HYDERABAD. 6.D.R. ITAT, HYDERABAD. 7.GUARD FILE.