Uma Devi, Hyderabad V. Income Tax Officer, Ward-7(3), Hyderabad

ITA 876/Hyd/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7558 (ITAT-HYDERABAD)
• Duration Of Justice: 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 22-01-2019
• Assessment Year: 2014-2015
• Appeal Filed On: 07-05-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R MOHANKUMAR
• Assessee Lawyers: K A SAI PRASAD
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition; Condonation of delay
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMEBR ITA NOS. A.Y APPELLANT RESPONDENT 876/HYD/2018 2014-15 UMA DEVI, HYDERABAD PAN AFXPD2818P ITO, WARD-7(3), HYDERABAD. 877/HYD/2018 2014-15 PREM VYAS, HYDERABAD PAN BCMPP0460L ASSESSEE BY : SHRI K.A SAI PRASAD REVENUE BY : SHRI R. MOHAN KUMAR DATE OF HEARING : 22-01-2019 DATE OF PRONOUNCEMENT : 18-04-2019 ORDER PER P. MADHAVI DEVI, J.M.: BOTH THE APPEALS ARE FILED BY THE RESPECTIVE ASSESSEES FOR THE A.Y 2014-15, AGAINST THE RESPECTIVE ORDERS OF THE CIT(A)-3, DATED 18.09.2017. IT IS SEEN THAT THERE IS A DELAY OF 143 DAYS IN FILING OF THE APPEALS BY BOTH THE ASSESSEES. THE ASSESSEES HAVE FILED APPLICATIONS FOR CONDONATION OF DELAY STATING THAT THE ASSESSEE PREM VYAS WAS IN SEVERE HEALTH PROBLEMS AS WELL AS PERSONAL PROBLEMS WITH HIS WIFE AND HIS AFFAIRS WERE BEING HANDLED BY HIS MANAGER SHRI RATANLAL OJHA, WHO HAD CHEATED HIM AND ABSCONDED WITH HIS FAMILY JEWELLERY AGAINST WHICH THE ASSESSEE HAS GIVEN A 2 ITA.NOS. 876 & 877/HYD/2018 POLICE COMPLAINT ON 27.05.2015. IT WAS SUBMITTED THAT IN VIEW OF THESE PROBLEMS THE ASSESSEE COULD NOT RECEIVED ORDERS FROM THE PERSON WHO RECEIVED THE SAME AND THAT ASSESSEES FATHER COLLECTED THE ORDER AND CONSULTED HIS TAX ADVICER WHO ADVISED HIM TO FILE THE APPEAL BEFORE THE TRIBUNAL. SIMILARLY THE ASSESSEES MOTHER SMT. UMA DEVI ALSO FILED SIMILAR APPLICATION FOR CONDONATION OF DELAY. THE LD. DR WAS ALSO HEARD. TAKING INTO CONSIDERATION THE FACT THAT THE ASSESSEE PREM VYAS WAS IN SEVERE PERSONAL AND HEALTH PROBLEMS AND HIS MOTHER WAS ALSO DEPENDENT UPON HIM. WE INCLINED TO CONDONE THE DELAY AND PROCEED TO DISPOSE OF THE APPEAL AS UNDER. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESEES ARE MOTHER AND SON AND ARE INDIVIDUALS. IT HAD COME TO THE NOTICE OF THE A.O THAT THE ASSESSEE SHRI PREM VYAS, ALONG WITH HIS MOTHER SMT UMA DEVI VYAS, HAD SOLD A PROPERTY ON 31.01.2014 FOR A CONSIDERATION OF RS. 1,10,00,000/-, WHEREAS THE MARKET VALUE OF THE PROPERTY WAS RS. 1,10,75,515/-. OBSERVING THAT THE PROVISIONS OF SEC. 50C(1) OF THE ACT ARE APPLICABLE TO THE CASE AND THAT THE ASSESSEES HAVE NOT OFFERED THE CAPITAL GAINS TO TAX, NOTICES U/S 148 OF THE ACT WERE ISSUED TO BOTH THE ASSESSEES FOR 3 ITA.NOS. 876 & 877/HYD/2018 REOPENING OF THEIR ASSESSMENTS. HOWEVER, THE ASSESSEES DID NOT APPEAR, BUT THE ASSESSEE SHRI PREM VYAS FILED A LETTER STATING THAT THE ASSESSEES GRANDFATHER DIED IN A ROAD ACCIDENT AND HE WAS BUSY IN PERFORMING THE FAMILY RITUALS. THE A.O OBSERVED THAT THERE WAS NO RESPONSE TO STATUTORY NOTICES AND SINCE THE ASSESSEE FAILED TO ATTEND THE HEARING, THE A.O COMPLETED THE ASSESSMENT UNDER 144 OF THE ACT. HE HAD TAKEN THE ENTIRE SRO VALUE FOR THE PROPERTY AS THE CAPITAL GAIN AND BROUGHT 50% OF THE SAME TO TAX IN THE HANDS OF THE EACH OF THE ASSESSEES. AGGRIEVED, THE RESPECTIVE ASSESSEES PREFERRED APPEALS BEFORE THE CIT(A), WHO CONFIRMED THE ORDERS OF THE A.O ON THE GROUND THAT THE ASSESSEES DID NOT APPEAR BEFORE HIM. THUS, THE ASSESSEE IS IN SECOND APPEAL BEFORE US BY RAISING THE FOLLOWING GROUNDS OF APPEAL: 1. THE ORDER OF THE LD. CIT(A) IS NOT CORRECT EITHER ON FACTS OR IN LAW AND IN BOTH. 2. THE LD. CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE CAPITAL GAIN AT RS. 55,37,758/- WITHOUT GIVING ANY DEDUCTION TOWARDS INDEXED COST OF ACQUISITION. 3. THE LD. CIT(A), IS ALSO NOT JUSTIFIED IN CONFIRMING THE SHARE OF THE APPELLANT AT 50% AS AGAINST 70% SHARE IN THE PROPERTY. 4. THE APPELLANT CRAVE LEAVE TO ADD OR AMEND OR ALTER ANY OF THE GROUNDS AT THE TIME OF HEARING OF APPEAL. 4 ITA.NOS. 876 & 877/HYD/2018 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE A.O HAS BROUGHT THE ENTIRE SALE CONSIDERATION TO TAX AS CAPITAL GAINS WITHOUT ALLOWING ANY DEDUCTION TOWARDS INDEXED COST OF ACQUISITION AND HAS ALSO ERRONEOUSLY TAKEN THE SHARES AS 50%. HE THEREFORE PRAYED THAT THE ISSUE MAY BE REMITTED TO THE FILE OF THE A.O TO CONSIDER THE ISSUE AFRESH. 4. THE LD. DR WAS ALSO HEARD WHO SUBMITTED THAT THE ASSESSEE DID NOT COOPERATE WITH THE AUTHORITIES BELOW AND HAS NOT FILED ANY DETAILS AND THEREFORE THE A.O HAD BROUGHT THE ENTIRE SALE CONSIDERATION TO TAX. 5. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE MATERIAL AVAILABLE ON RECORD, WE FIND THAT THE TOTAL SALE CONSIDERATION CANNOT BE BROUGHT TO TAX AS CAPITAL GAIN. THE ASSESSEE HAS TO BE ALLOWED THE DEDUCTION TOWARDS INDEXED COST ACQUISITION. FURTHER THE A.O ALSO NOT VERIFIED THE SHARE OF EACH OF THE ASSESSEES IN THE PROPERTY AND SHOULD HAVE BROUGHT ONLY THEIR RESPECTIVE SHARES TO TAX IN THE RESPECTIVE HANDS. IN VIEW OF THE SAME, WE DEEM IT FIT AND PROPER TO REMAND THE ISSUE TO THE FILE OF THE A.O FOR DE- NOVO CONSIDERATION IN ACCORDANCE WITH LAW AFTER GIVING THE ASSESSEES A FAIR OPPORTUNITY OF HEARING. THE RESPECTIVE 5 ITA.NOS. 876 & 877/HYD/2018 ASSESSEES ARE ALSO DIRECTED TO COOPERATE WITH THE A.O BY FURNISHING THE NECESSARY DETAILS. ACCORDINGLY, THE ASSESSEES APPEALS ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEES ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 18 TH APRIL, 2019 SD/- SD/- (S. RIFAUR RAHMAN) (P. MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED: 18 TH APRIL, 2019 KRK 1) UMA DEVI & PREM VYAS C/O PARTHASRATHY & CO., 1-1- 298/2/B/3, 1 ST FLOOR, SOWBHAGYA AVENUE, ST. NO. 1, ASHOKNAGAR, HYDERABAD 500 020. 2) THE ITO, WARD 7(3), HYDERABAD. 3) CIT(A)-3, HYDERABAD. 4) PR.CIT-3, HYDERABAD. 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERABAD. 6) GUARD FILE.