K.Vijaya, Sec'bad, Hyderabad V. ITO, Ward-10(4), Hyderabad, Hyderabad

ITA 928/HYD/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6019 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 20-06-2016
• Court: TRIBUNAL
• Department Lawyers: A SITARAMA RAO
• Keywords: Sale consideration of property below Jantri Value
• Section: 50C; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A (SMC), HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NOS. 927 & 928/HYD/2016 ASSESSMENT YEAR(S): 2005-06 SMT. VIJAYA KESHAV, SECUNDERABAD [PAN: BAUPK2781H] VS THE INCOME TAX OFFICER, WARD-10(4) HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI K.C. DEVDAS, AR FOR REVENUE : SHRI A. SITARAMA RAO, DR DATE OF HEARING : 10-11-2016 DATE OF PRONOUNCEMENT : 16-11-2016 O R D E R BOTH THESE APPEALS PERTAIN TO THE SAME ASSESSEE FOR AY . 2005-06. APPEAL IN ITA NO. 928/HYD/2016 IS ON THE ASSESSMENT ORDER PASSED U/S. 144 OF THE INCOME TAX ACT [ACT] A ND APPEAL IN ITA NO. 927/HYD/2016 IS ON PENALTY ORDER U/S 271(1) (C). 2. BRIEFLY STATED, ASSESSEE HAS NOT FILED RETURN OF INC OME FOR THIS YEAR AND IS NOT AN ASSESSEE ON RECORD. THE ITO, WAR D-10(4) CAME TO KNOW THAT ASSESSEE ALONG WITH OTHERS, SOLD HOUSE PR OPERTY OF LAND ADMEASURING 808.59 SQ. YDS., FOR RS. 15 LAKHS DURING THE YEAR. ASSESSEES SHARE IN PROPERTY WAS 200 SQ. YDS . THE ASSESSING OFFICER (AO) NOTED THAT MARKET VALUE OF THE PROPERTY WAS AT RS. 56,03,220/- FOR STAMP DUTY PURPOSES AND VALUE OF AS SESSEES SHARE WORKED OUT TO RS. 13,85,920/- AS PER SECTION 50C OF THE ACT. AO HAS TREATED THE ENTIRE AMOUNT AS LONG TERM CAPITAL GAIN OF ASSESSEE AND BROUGHT THE AMOUNT OF RS. 13,85,920/- AS INCOME OF I.T.A. NOS. 927 & 928/HYD/2016 SMT. VIJAYA KESHAV :- 2 -: ASSESSEE. ASSESSEE HAS PREFERRED THE APPEAL BEFORE THE LD.CIT(A). IN THE FORM 35, IT WAS MENTIONED THAT THE ASSESSMENT ORDER WAS SERVED ON 15-04-2013 AND APPEAL WAS PREFERRED ON 27 -02-2014. THERE WAS DELAY IN FILING THE APPEAL. ACCORDINGLY, THE CONDONATION LETTER WAS FILED BEFORE THE LD.CIT(A) ON THE DATE OF HEARING BEFORE THE CIT(A). IN THE MEAN TIME, AO HAS ALSO FINALISED THE PENALTY PROCEEDINGS INITIATED IN THE ASSESSMENT AND LEVIED PE NALTY U/S. 271(1)(C) OF THE ACT. THE ORDER OF WHICH WAS SERVE D ON 19-09-2013. ASSESSEE PREFERRED APPEAL ON THIS ORDER ON THE SAME DATE I.E., 27- 02-2014. 2.1. BOTH THE APPEALS WERE TAKEN UP TOGETHER BY LD. CIT (A) AND IT SEEMS THE COUNSEL HAS FILED ONLY ONE CONDONATION PETI TION. THE SAME WAS CONSIDERED IN APPEAL AGAINST THE ORDER U/S. 144, IN WHICH LD.CIT(A) HAS EXTRACTED THE SUBMISSIONS DT. 23-03 -2016 IN PARA 4.1. HOWEVER, LD.CIT(A) WAS OF THE OPINION THAT ASSESSEE IS CALLOUS AND CASUAL TOWARDS INCOME TAX MATTERS. IN VIEW OF THAT, CONDONATION WAS REJECTED STATING THAT THERE IS NO SUFFICI ENT CAUSE WITHIN THE MEANING OF THE PROVISIONS OF SECTION 249(3) OF THE ACT. 3. WITH REFERENCE TO OTHER APPEAL ON PENALTY U/S. 271( 1)(C), LD.CIT(A) STATED THAT THERE IS NO CONDONATION PETITION. H ENCE, THE DELAY CANNOT BE CONDONED. 4. AFTER HEARING THE LD. COUNSEL AND THE LD. DR AND PERUSING THE ORDERS ON RECORD, I AM OF THE OPINION THAT LD.CIT( A) HAS ERRED IN REJECTING THE CONDONATION. LD.CIT(A) NOTED THAT THERE WERE TEN MONTHS DELAY IN FILING THE APPEAL IN QUANTUM. ASSES SEE HAS EXPLAINED THAT SHE WAS AGED MORE THAN 60 YEARS WITH AIL MENTS AND I.T.A. NOS. 927 & 928/HYD/2016 SMT. VIJAYA KESHAV :- 3 -: WAS NOT CONVERSANT WITH THE INCOME TAX PROVISIONS. THE RE WAS NO COMMUNICATION ALSO FROM THE DEPARTMENTAL AUTHORITIES. S HE HAS EXPLAINED THAT ONLY AFTER THE PURCHASER ADVISED, A TAX P RACTITIONER WAS CONSULTED AND THE APPEAL WAS FILED AFTER DELAY OF TEN MONTHS. CONSIDERING THAT ASSESSMENT PROCEEDINGS ARE DONE EX-PARTE AND AS ASSESSEE CONTENDS THAT NO NOTICES WERE SERVED ON HER, I T MAY BE POSSIBLE THAT ASSESSEE IS TOTALLY IGNORANT ABOUT THE PROC EEDINGS. THERE IS NO RESPONSE/EXPLANATION IN THE PENALTY PROCE EDINGS AS WELL. AS SEEN FROM THE ASSESSMENT ORDER ITSELF, THESE PROCEEDINGS ARE INITIATED AFTER THE LD.CIT(A) HAS CANCELLED THE OR IGINAL PROCEEDINGS COMPLETED ON 12-12-2007 U/S. 144, WHERE IN THE ENTIRE VALUE OF RS. 56,03,220/- WAS ASSESSED IN THE HANDS O F ASSESSEE. WHETHER ONCE ASSESSMENT HAS BEEN CANCELLED, SEPARATE PROCEEDINGS ON THE SAME ISSUE CAN BE INITIATED HAS NO T BEEN EXAMINED AT ALL EITHER BY THE AO OR BY THE CIT(A). THE EARLIER ORDER OF LD. CIT(A) IS NOT ON RECORD TO EXAMINE ON WHAT REAS ONS THE EARLIER PROCEEDINGS ARE HELD BAD IN LAW. THIS INDIC ATES THAT ASSESSEE IS TOTALLY IGNORANT AND HAS NOT BEEN PROPERLY ADVISED ABOUT HER RIGHTS AND DUTIES. KEEPING THE FACT THAT ASSES SEE IS OLD AND MATTER IS ALSO PERTAINING TO AY. 2005-06, I AM OF THE OPINION THAT LD.CIT(A) COULD HAVE CONDONED THE DELAY. I AM IN FORMED THAT ONLY ONE CONDONATION PETITION WAS FILED WHEN BOTH THE APPEALS ARE TAKEN UP BY THE LD.CIT(A). SINCE THE ORDER U/S. 271(1 )(C) WAS PASSED AFTER SIX MONTHS OF COMPLETING THE ASSESSMENT, THERE SEEMS TO BE SOME ERROR IN NOTING DOWN THE DELAY OF SIX MON THS IN THE ORDER OF LD.CIT(A), ABOUT THE DELAY. WHEN THE MAIN AP PEAL WAS TEN MONTHS DELAY, THERE CANNOT BE SIX MONTHS DELAY IN TH E PENALTY ORDER, WHEN PENALTY ORDER ITSELF HAS PASSED SIX MONT HS LATER. IT SEEMS THE DELAY WAS COUNTED, WITHOUT EXCLUDING THE TIM E GIVEN TO I.T.A. NOS. 927 & 928/HYD/2016 SMT. VIJAYA KESHAV :- 4 -: ASSESSEE FOR FILING THE APPEAL UNDER THE STATUTE. THE DE LAY SHOULD HAVE BEEN CALCULATED CORRECTLY WHEN THE CONDONATION I S BEING CONSIDERED. BE THAT AS IT MAY, I AM OF THE OPINION THAT ASSESSEE HAS SUFFICIENT CAUSE IN FILING THE APPEALS BELATEDLY. THEREFORE, THE DELAY BEFORE THE LD.CIT(A) SHOULD HAVE BEEN CONDONE D AND APPEALS SHOULD HAVE BEEN HEARD ON MERITS. LD.CIT(A) IS DIRECTED TO DISPOSE-OFF THE APPEALS ON MERITS BY GIVING DUE OPPOR TUNITY TO ASSESSEE AND ALSO EXAMINE WHETHER ASSESSEE WAS SERVE D WITH ANY NOTICES OR NOT AND IF SO, WHETHER ANY EXPLANATION WAS GIVEN BY ASSESSEE EITHER IN THESE PROCEEDINGS OR IN EARLIER PR OCEEDINGS. ASSESSEE IS FREE TO RAISE ANY GROUNDS OR CONTENTIONS I NCLUDING ANY ADDITIONAL GROUNDS BEFORE THE LD.CIT(A). WITH THESE O BSERVATIONS, THE ORDERS OF THE LD.CIT(A) ARE MODIFIED BY ALLOWING THE CONDONATION PETITION AND APPEALS ARE RESTORED TO THE FILE OF CIT(A) ADJUDICATING ON MERITS. 5. IN THE RESULT, BOTH THE APPEALS OF ASSESSEE ARE ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH NOVEMBER, 2016 SD/- (B. RAMAKOTAIAH) ACCOUNTANT MEMBER HYDERABAD, DATED 16 TH NOVEMBER, 2016 TNMM I.T.A. NOS. 927 & 928/HYD/2016 SMT. VIJAYA KESHAV :- 5 -: COPY TO : 1. SMT. VIJAYA KESHAV, SECUNDERABAD. C/O. B. NARSIN G RAO & CO., CHARTERED ACCOUNTANTS, PLOT NO. 554, ROAD NO . 92, JUBILEE HILLS, HYDERABAD. 2. THE INCOME TAX OFFICER, WARD-10(4), HYDERABAD. 3. COMMISSIONER OF INCOME TAX(APPEALS)-9, HYDERABAD 4. PR. COMMISSIONER OF INCOME TAX-6, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.