DCIT, Circle-16(2), Hyderabad V. M/s. Mekins Agro Products Ltd., Secunderabad

ITA 95/HYD/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 77919 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 23-01-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S RAMA RAO
• Keywords: Sale consideration of property below Jantri Value; Depreciation; Unabsorbed depreciation
• Section: 143(3); 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO. 95/HYD/ 2014 ASSESSMENT YEAR 2006-07. DY. CIT, CIR-16(2), VS- M/S. MEKI NS AGRO PRODUCTS LTD., HYDERABAD. HYD ERABAD. PAN:AAACM9471G (APPELLANT) (RESPONDENT) APPELLANT BY SHRI SOLGY JOSE T. KOTTARAM RESPONDENT BY SHRI S. RAMA RAO DATE OF HEARING 15-05-2014 DATE OF PRONOUNCEMENT 04-06-2014 ORDER PER SAKTIJIT DEY, J.M: THIS APPEAL OF THE DEPARTMENT IS DIRECTED AGAINS T THE ORDER DATED 30-9-2013 OF CIT (A) V, HYDERABAD PERTAINING TO ASSESSMENT YEAR 2006-07. 2. IT APPEARS FROM THE GROUNDS RAISED, THE DEPART MENT IS AGGRIEVED BY THE ORDER PASSED BY THE CIT (A) D ELETING THE ADDITIONS MADE BY THE ASSESSING OFFICER AND COM PUTING LONG TERM CAPITAL GAIN OF RS.50,34,452/-. 2 ITA NO.95 OF 2014 M/S MEKI NS AGRO PRODUCTS LTD., HYD. 3. BRIEFLY THE FACTS ARE, THE ASSESSEE A PRIVATE LI MITED COMPANY IS ENGAGED IN MANUFACTURE AND SUPPLY OF STO RAGE EQUIPMENT AND AGRICULTURAL IMPLEMENTS. FOR THE ASSE SSMENT YEAR UNDER DISPUTE, THE ASSESSEE FILED ITS RETURN O F INCOME DECLARING NIL INCOME AFTER SETTING OFF BROUGHT FO RWARD LOSS AND UNABSORBED DEPRECIATION TO THE EXTENT OF RS.3,65,74,701/-. INITIALLY, THE ASSESSMENT WAS COM PLETED U/S 143(3) VIDE ORDER DATED 31-12-2008 DETERMINING TAXABLE INCOME OF RS.1,99,36,802 FROM LONG TERM CAP ITAL GAINS. AS IT APPEARS FROM FACTS ON RECORD, THE AS SESSEE CHALLENGED THE SAID ASSESSMENT ORDER BEFORE THE CI T (A). BEING UNSUCCESSFUL BEFORE THE CIT (A), THE ASSESSEE CARRIED AN APPEAL BEFORE THE INCOME-TAX APPELLATE TRIBUNAL. THE INCOME-TAX APPELLATE TRIBUNAL, HYDERABAD BENCH VIDE ITS ORDER 7-5-2013 PASSED IN ITA NO.1687/HYD/10 REMITTE D THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER W ITH A SPECIFIC DIRECTION TO COMPUTE CAPITAL GAINS ONLY IN RESPECT OF SALE OF BUILT UP AREA RECEIVED BY THE ASSESSEE. O F COURSE, THE INCOME-TAX APPELLATE TRIBUNAL WITHOUT DECIDING THE OTHER ISSUES SUCH AS ADDITION OF RS.18,55,000/- AS UNDER VALUATION IN PROPERTY AND APPLICABILITY OF SECTION 50C REMITTED THE MATTER BACK TO THE FILE OF THE ASSESSI NG OFFICER. IN PURSUANCE TO THE DIRECTION OF THE INCO ME-TAX APPELLATE TRIBUNAL AS ABOVE THE ASSESSING OFFICER I NITIATED ASSESSMENT PROCEEDINGS AFRESH BY ISSUING A NOTICE T O THE ASSESSEE. DURING THE ASSESSMENT PROCEEDINGS, ON VERIFICATION OF BREAKUP OF SALES, THE ASSESSING OFF ICER NOTICED THAT THE ASSESSEE HAS SHOWN AN AMOUNT OF RS.4,15,33,255/- AS RECEIPTS FROM SALE OF FLOOR SP ACE. THE 3 ITA NO.95 OF 2014 M/S MEKI NS AGRO PRODUCTS LTD., HYD. ASSESSING OFFICER ALSO POINTED OUT CERTAIN OTHER DISCREPANCIES BETWEEN THE OPENING STOCK AND CLOSING STOCK. HOWEVER, SINCE WE ARE NOT CONCERNED WITH THAT ISSU E, IT IS NOT NECESSARY TO DEAL WITH THE SAME. 4. SO FAR AS RECEIPTS FROM SALE OF FLOOR SPACE I S CONCERNED, THE ASSESSING OFFICER AFTER EXAMINING TH E INFORMATION CALLED FOR FOUND THAT THE ASSESSEE HA D GIVEN PROPERTY BEARING NO.603-1090/B/1 & 2, RAJ BHAVAN RO AD, HYDERABAD ADMEASURING 1011 SQUARE YARDS FOR DEVELOP MENT TO M/S VASUNDHARA DEVI ESTATES (P) LTD., FOR CONSTR UCTION OF MULTI-STORIED COMPLEX BY NAME MAYANK TOWERS VIDE DEVELOPMENT AGREEMENT DATED 29-3-1995 AND MOU DATED 11-9-1999 AND 27-8-2004. AS PER THE TERMS OF DEVELOPMENT AGREEMENT, THE ASSESSEE RECEIVED 50% OF THE BUILT-UP AREA AND PARKING SPACE OF THE DEVELOPED PR OPERTY WHICH ROUGHLY CASE TO 19136 SQ.FT. OUT OF WHICH TH E ASSESSEE SOLD 9443 SQ.FT IN THE FINANCIAL YEAR 2004 -05 BUT THE RECEIPTS FROM SALE OF SUCH BUILT UP AREA WAS AD MITTED AS INCOME IN THE ASSESSMENT YEAR UNDER DISPUTE. HE FU RTHER FOUND THAT THE ASSESSEE HAD ANOTHER PROPERTY BEARI NG NO.6-3-866/A, GREENLAND ROAD, BEGUMPET, HYDERABAD ADMEASURING 1156 SQ. YARDS WHICH WAS GIVEN FOR DEVELOPMENT OF A MULTI-STORIED COMMERCIAL COMPLEX B Y NAME MAYANK PLAZA TO M/S MAHESWARI PLAZA RESORT S (P) LTD., VIDE DEVELOPMENT AGREEMENT DATED 16-3-2001 A ND SUPPLEMENTARY AGREEMENT DATED 23-2-2002. AS PER TH E TERMS OF THE DEVELOPMENT AGREEMENT, THE ASSESSEE RECEIVED 50% OF THE BUILT-UP AREA AND PARKING SPACE OF THE 4 ITA NO.95 OF 2014 M/S MEKI NS AGRO PRODUCTS LTD., HYD. DEVELOPED PROPERTY I.E., 9650SFT., WHICH HAS BEEN S OLD BY THE ASSESSEE DURING THE ASSESSMENT YEAR UNDER CONSIDERATION. 5. IN RESPONSE TO THE QUERY MADE BY THE ASSESSING OFFICER AS THE ASSESSEE HAS ADMITTED INCOME IN THE PRESENT YEAR WHEN THE PROPERTY WAS SOLD IN THE PRECEDING Y EAR, IT WAS SUBMITTED THAT THE TWO PROPERTIES GIVEN FOR DEVELOPMENT WAS MORTGAGED TO EXIM BANK OF INDIA AS 1 ST CHARGE HOLDER AND PUNJAB NATIONAL BANK AS SECOND C HARGE HOLDER. IN 2002 ASSESSEES ACCOUNT WITH PNB BECAME NPA AND THE BANK FILED A CASE WITH DEBT RECOVERY TRIBUN AL. SINCE THE FIRST CHARGE WAS WITH EXIM BANK OF INDIA, ONLY AFTER GETTING PERMISSION FROM THEM THE SALES COULD BE EFFECTED AND MONEY DEPOSITED IN EXIM BANK TOWARDS DUE BUT SECOND CHARGE WITH PUNJAB NATIONAL BANK STILL EXISTING, THE AMOUNTS WERE TREATED AS ADVANCES AND IT WAS ONL Y IN THE FINANCIAL YEAR 2005-06 WHEN THE POSSESSION OF T HE DEVELOPED PROPERTY WAS RECEIVED BY THE ASSESSEE AND HANDED OVER TO THE PURCHASERS OF THE FLOOR SPACE IN COME WAS ADMITTED BY THE ASSESSEE. THE ASSESSING OFFICE R AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE CAME TO A CONCLUSION THAT THE AMOUNT RECEIVED BY THE ASSESSEE TOWARDS SALE OF BUILT UP AREA OF 9443 SQ.FT IN MAY ANK TOWERS AND 9650 SFT., IN MAYANK PLAZA IS LIABLE FO R SHORT TERM CAPITAL GAINS AND ACCORDINGLY TREATED THE RECE IPTS OF RS.4,15,33,255/- AS SHORT TERM CAPITAL GAINS. FURT HER, THE ASSESSING OFFICER TREATED AN AMOUNT OF RS.18,55,000 /- AS SALE CONSIDERATION UNDER STATED BY THE ASSESSEE UPO N 5 ITA NO.95 OF 2014 M/S MEKI NS AGRO PRODUCTS LTD., HYD. CONSIDERING THE FACT AS PER THE SALE DEED NO.2266/0 4 DATED 27-8-2004 IN RESPECT OF FLAT IN MAYANK TOWERS, THE SALE CONSIDERATION RECEIVED BY THE ASSESSEE IS RS.50 LAK H WHEREAS THE ASSESSEE HAS ADMITTED RS.31,45,000/-. HE THEREFORE ADDED HE AMOUNT OF RS.18,55,000/- BEING T HE SHORTFALL IN THE AMOUNTS SHOWN BY THE ASSESSEE. FU RTHER, THE ASSESSING OFFICER NOTICED THAT AS PER THE VALUA TION OF THE REGISTERING AUTHORITY OF THE STATE GOVERNMENT, THERE IS A DIFFERENCE IN VALUATION IN STAMP DUTY PURPOSE AND THE SALE CONSIDERATION SHOWN IN THE SALE DEED WHICH AMOUNTED TO RS.9,28,951/-. THE ASSESSING OFFICER INVOKING SECT ION 50C OF THE ACT ADDED THE SAID AMOUNT TO THE INCOME OF T HE ASSESSEE. FOR THIS PURPOSE, THE SHORT TERM CAPITAL GAINS COMPUTED BY THE ASSESSING OFFICER AMOUNTED TO RS.4,43,17,206/-. BEING AGGRIEVED OF THE ASSESSMEN T ORDER SO PASSED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT (A). 6. IN COURSE OF PROCEEDINGS BEFORE THE CIT (A) THE ASSESSEE FILED WRITTEN SUBMISSIONS WHEREIN IT WAS S UBMITTED BY THE ASSESSEE THAT IN VIEW OF THE DIRECTION OF IN COME-TAX APPELLATE TRIBUNAL IN ITA NO.1687/HYD/2010 THE ASSE SSING OFFICER CAN ONLY COMPUTE CAPITAL GAINS IN RESPECT O F THE SALE OF BUILT AREA RECEIVED BY THE ASSESSEE. CONTESTIN G THE SHORT TERM CAPITAL GAIN COMPUTED AT RS.4,43,17,206/ - BY THE ASSESSING OFFICER IT WAS SUBMITTED BY THE ASSES SEE THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE H AS SOLD 7 NUMBERS OF FLATS IN MAYANK TOWERS AND TOTAL SALE CONSIDERATION RECEIVED WAS TO THE TUNE OF 6 ITA NO.95 OF 2014 M/S MEKI NS AGRO PRODUCTS LTD., HYD. RS.1,23,02,000/-.IT WAS SUBMITTED, THE BUILT UP ARE A RECEIVED IN MAYANK PLAZA HAVING BEEN SOLD IN THE EARLIER YEARS THE GAIN ARSING ON SALE OF THE CONSTRUCTED A REAS CANNOT BE TAXABLE IN THE ASSESSMENT YEAR UNDER CONSIDERATION. ACCORDINGLY, THE ASSESSEE COMPUTED THE CAPITAL GAIN AT RS.50,34,452/- AFTER DEDUCTING THE COST OF CONSTRUCTED AREA OF RS.66,75,000/-. THE CIT (A) AF TER CONSIDERING THE SUBMISSION OF THE ASSESSEE ACCEPTED THE SAME BY HOLDING THAT THE ASSESSING OFFICER HAS NOT CORRECTLY FRAMED THE ASSESSMENT ORDER AS THE INCOME-TAX APPEL LATE TRIBUNAL HAD DIRECTED TO EXCLUDE THE CAPITAL GAINS ARISING ON ENTERING INTO DEVELOPMENT AGREEMENT. HE HELD THAT ONLY CAPITAL GAINS ARISING ON SALE OF CONSTRUCTED AREA D URING THE PREVIOUS YEAR ALONE WOULD BECOME TAXABLE. HE FURT HER OB SERVED THAT WHILE IN THE ORIGINAL ASSESSMENT ORDER, THE ASSESSING OFFICER COMPUTED LONG TERM CAPITAL GAINS IN RESPECT OF SALE CONSIDERATION RECEIVED BUT IN THE CONSEQUENTIAL ORDER HE HAS TREATED IT AS SHORT TER M CAPITAL GAINS. 7. THE LEARNED DR SUBMITTED BEFORE US THAT AS PER T HE P & L A/C FILED ALONG WITH RETURN OF INCOME FOR THE A SSESSMENT YEAR 2006-07, THE ASSESSEE HAD SHOWN GROSS RECEIPTS FROM BUSINESS AT RS.10,55,78,000/- OUT OF WHICH RS.4,15,33,255/- WAS ADMITTED AS RECEIPT FROM SALE OF FLOOR SPACE, BUT DURING THE SECOND ROUND OF PROCEEDINGS B EFORE THE CIT (A) THE ASSESSEE HAS CLAIMED AN AMOUNT OF RS.1,23,02,000/- AS RECEIPT FROM SALE OF FLOOR SPAC E. IT WAS SUBMITTED THAT WHEN THE ASSESSEE ITSELF HAS SHOWN T HE 7 ITA NO.95 OF 2014 M/S MEKI NS AGRO PRODUCTS LTD., HYD. AMOUNT OF RS.4,15,33,255/- TOWARDS AMOUNT RECEIVED ON SALE OF FLOOR SPACE THE CIT (A) WAS NOT JUSTIFIED I N ACCEPTING THE ASSESSEES REVISED CLAIM OF SALE CONS IDERATION RECEIVED ON SALE OF FLOOR SPACE AMOUNTING TO RS.1,23,02,000/-. IT WAS SUBMITTED BY THE LEARNED DR THAT THE ASSESSING OFFICER HAS FULLY COMPLIED WITH THE D IRECTIONS OF INCOME-TAX APPELLATE TRIBUNAL BY NOT ASSESSING C APITAL GAINS ARISING OUT OF DEVELOPMENT AGREEMENT BUT HAS CONFINED HIMSELF IN COMPUTING CAPITAL GAINS ARISING FROM SALE OF BUILT UP AREA. 8. THE LEARNED DR FURTHER SUBMITTED THAT THE CIT (A ) WHILE GRANTING RELIEF TO THE ASSESSEE HAS FAILED T O DISCUSS ANYTHING WITH REGARD TO THE ADDITIONS MADE OF RS.18,55,000/- ON ACCOUNT OF UNDERSTATEMENT IN SALE CONSIDERATION AND AMOUNT OF RS.9,28,951/- U/S50C OF THE ACT. 9. THE LEANED AR, ON THE OTHER HAND, STRONGLY SUPPO RTING THE ORDER OF THE CIT (A) SUBMITTED THAT THE ASSES SEE HAS NOT OFFERED ANYTHING TOWARDS CAPITAL GAINS IN THE R ETURN OF INCOME FILED FOR THE IMPUGNED ASSESSMENT YEAR. TH E ASSESSEE HAS SHOWN RECEIPTS OF RS.4,15,33,255/- TOW ARDS SALE OF FLOOR SPACE WHICH IS WITHOUT ANY BASIS. T HE LEANED AR SUBMITTED THAT WHEN THE INCOME-TAX APPELLATE TRI BUNAL HAS GIVEN A CLEAR DIRECTION THAT ONLY BUILT-UP AREA SOLD BY THE ASSESSEE CAN BE SUBJECTED TO CAPITAL GAINS, THE CIT (A) WAS JUSTIFIED IN DIRECTING THE ASSESSING OFFICER TO COMPUTE THE CAPITAL GAINS IN RESPECT OF SALE OF BUILT UP AR EA ALONE. 8 ITA NO.95 OF 2014 M/S MEKI NS AGRO PRODUCTS LTD., HYD. 10. WE HAVE HEARD THE PARTIES AND PERUSED THE ORDER S OF THE REVENUE AUTHORITIES AS WELL AS OTHER MATERIAL O N RECORD. IT IS A FACT ON RECORD THAT WHILE COMPLETING THE OR IGINAL ASSESSMENT, THE ASSESSING OFFICER HAS COMPUTED CAPI TAL GAINS ON TRANSFER OF PROPERTY UNDER THE DEVELOPMENT AGREEMENT. HOWEVER, THE CO-ORDINATE BENCH OF TRIBU NAL IN ITA NO.1687/HYD/10 DATED 7-5-2012 WHILE CONSIDERING THE ASSESSEES APPEAL DIRECTED AS UNDER:- HENCE, RESPECTFULLY FOLLOWING THE DECISION OF THE C O-ORDINATE BENCH IN THE CASE OF POTLA NAGESWARA RAO, WHERE THE JM WAS THE AUTHOR OF THE ORDER, WE ARE OF THE OPINION THAT IN CASE OF DEVELOPMENT AGREEMENT WHICH WERE EXECUTED THE CAPIT AL GAINS CANNOT BE POSTPONED. IN THESE CIRCUMSTANCES THE PROFITS/ CAPITAL GAINS ARISING FROM DEVELOPMENT OF THE LAND CANNOT BE BROUGHT TO TAX THIS YEAR, EXCEPT TO THE E XTENT THE ASSESSEE HIMSELF HAS OFFERED FOR TAX IN HIS RETURN. ONLY THE PROFITS ACCRUED ON THE SALE OF THE BUILT UP AREA DU RING THEEYAR SHALL BE SUBJECT TO TAX. THE ASSESSING OFF ICER IS DIRECTED TO COMPUTE THE PROFIT ARISING FROM SALE OF THE BUILT UP AREA, TOGETHER WITH UNDIVIDED INTEREST IN AND IF ANY, MADE DURING THE YEAR UNDER APPEAL. THE ADDITION MADE BY THE ASSESSING OFFICER IN RESPECT OF UNSOLD AREA CANNOT BE SUSTAINED AS ONLY PROFITS ARISING FROM LAND AND BUI LDING TRANSFERRED CAN BE BROUGHT TO TAX. AS REGARDS THE ADDITION OF RS.18,55,000/- THE EXPLANATION OF THE ASSESSEE IS N OT CLEAR. AS THE OTHER ISSUES HAVE BEEN SET ASIDE TO THE FILE OF THE ASSESSING OFFICER THIS ISSUE IS ALSO SET ASIDE TO T HE FILE OF THE ASSESSING OFFICER REDOING IT DE NOVO AFTER GIVING R EASONABLE OPPORTUNITY TO THE ASSESSEE. THE ASSESSING OFFICER WILL CONSIDER THE APPLICABILITY OF SEC. 50C AND IF HE FE ELS THAT THE PROVISIONS ARE APPLICABLE, HE MAY REFER TO THE VALU ATION OFFICER FOR DETERMINING THE MARKET VALUE AS REQUIRE D IN THAT 9 ITA NO.95 OF 2014 M/S MEKI NS AGRO PRODUCTS LTD., HYD. SECTION. W ITH THE ABOVE DIRECTIONS, WE SET ASIDE ORDER OF THE CIT (A) AND RESTORE THE ISSUES TO THE FILES OF THE ASSESSING OFFICER FOR RE-COMPUTING THE INCOME AFTER GIVING RE ASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 11. AS CAN BE SEEN FROM THE AFORESAID EXTRACTED PO RTION OF THE ORDER OF CO-ORDINATE BENCH, THE TRIBUNAL HAS ISSUED A CLEAR DIRECTION TO THE ASSESSING OFFICER TO COMPUTE THE PROFIT/CAPITAL GAINS ARISING FROM SALE OF BUILT-UP AREA TOGETHER WITH AN UNDIVIDED INTEREST IN LAND, IF ANY MADE DURING THE YEAR UNDER CONSIDERATION. ON A PERUSAL OF THE CONSEQUENTIAL ORDER PASSED BY THE ASSESSING OFFICER , IT IS SEEN THAT THE ASSESSING OFFICER IN PARA 1.2 OF THE ASSESSMENT ORDER IN FACT HAS OBSERVED THAT THE ISS UE OF TAXING OF CAPITAL GAINS AT THE TIME OF ENTERING INT O DEVELOPMENT IS NOT TO BE CONSIDERED. IT IS FURTHER EVIDENT FROM THE DISCUSSIONS MADE IN PARA -13 OF THE ASSESS MENT ORDER, THE ASSESSING OFFICER IS ONLY CONSIDERING T HE SALE OF BUILT-UP AREA IN MAYANK TOWERS AND MAYANK PLAZA W HICH IS TAKEN AT RS.4,15,33,255/- ALLEGED TO HAVE BEEN ADMI TTED BY THE ASSESSEE IN THE RETURN OF INCOME. HOWEVER, AS I T APPEARS FROM THE SUBMISSIONS MADE BY THE ASSESSEE B EFORE THE CIT (A) AS WELL AS BEFORE US DURING THE YEAR B UILT-UP AREA COMPRISING OF SEVEN FLATS IN MAYANK TOWERS WER E SOLD BY THE ASSESSEE AGAINST TOTAL SALE CONSIDERATION O F RS.1,23,02,000/- ONLY AND NOT RS.4,15,33,255/- AS CONSIDERED BY THE ASSESSING OFFICER. ON A PERUSAL OF THE ORIGINAL ASST. ORDER DATED 31-12-2008 IT IS SEEN TH AT BREAK UP OF SALE CONSIDERATION AS MENTIONED IN PARA-3 IS AS UNDER:- 10 ITA NO.95 OF 2014 M/S MEKI NS AGRO PRODUCTS LTD., HYD. A] MAYANK PLAZA SALE OF FLOOR SPACE RS.1,1 2,52,000/- AMOUNT RECEIVED FROM DEVELOPER RS.1,44,36,2 55/- B] MAYANK TOWERS SALE OF FLOOR SPACE RS.1 ,26,45,000 RS. 4,00,000 AMOUNT RECEIVED FROM DEVELOPER RS. 28,00, 000 TOTAL 4,15,33,255/- ---------------- FROM THE BREAK UP GIVEN ABOVE THE ONLY AMOUNTS WHI CH CAN BE BROUGHT TO TAX AS PER THE EARLIER ORDER OF THE B ENCH IS THE CONSIDERATION RECEIVED FROM SALE OF FLOOR SPAC E AND NOT THE AMOUNTS RECEIVED FROM DEVELOPER. HOWEVER, AS I T APPEARS FROM THE ORDER OF THE CIT (A), THE ASSESSEE HAS STATED THAT SO FAR AS MAYANK PLAZA IS CONCERNED, TH ERE IS NO SALE OF CONSTRUCTED AREA DURING THE YEAR UNDER CONSIDERATION SO AS TO COMPUTE CAPITAL GAINS IN TH E IMPUGNED ASST. YEAR. HOWEVER, WHAT ARE THE EVIDENC ES TO SUBSTANTIATE SUCH CLAIM HAS NOT BEEN BROUGHT OUT IN THE ORDER OF THE CIT (A). THE ASSESSEE HAS ALSO NOT PR ODUCED ANY MATERIAL BEFORE US TO SHOW THE ACTUAL DATE OF SALE OF THE CONSTRUCTED AREA IN MAYANK PLAZA OR FOR THAT MA TTER THE ACTUAL BUILT UP AREA SOLD DURING THE ASST. YEAR UND ER CONSIDERATION. IN THESE CIRCUMSTANCES, WE ARE UNA BLE TO RECORD A FINDING OF FACT AS TO WHETHER THE ASSESSEE HAS ONLY 11 ITA NO.95 OF 2014 M/S MEKI NS AGRO PRODUCTS LTD., HYD. RECEIVED OF RS.1,23,02,000/- TOWARDS SALE OF CONST RUCTED AREA, AS CLAIMED BY THE ASSESSEE. SIMILARLY, ON A PERUSAL OF THE ORDER OF THE CIT (A) , WE FIND THAT THE CIT (A) HAS NOT AT ALL DEALT WITH THE ISSUE OF ADDITION OF RS.18,5 5,000/- MADE ON ACCOUNT OF UNDERSTATED SALE CONSIDERATION A ND AN AMOUNT OF RS.9,28,951/- U/S 50C BEING THE DIFFERENC E BETWEEN THE VALUATION MADE BY THE REGISTERING AUTHO RITY FOR STAMP DUTY PURPOSES AND SALE CONSIDERATION MENTIONE D IN THE SALE DEED. IN THE AFORESAID FACTS AND CIRCUMS TANCES, WE ARE INCLINED TO REMIT ALL THE ISSUES BACK TO TH E FILE OF THE ASSESSING OFFICER FOR DECIDING AFRESH AFTER TA KING INTO CONSIDERATION ALL FACTS AND MATERIALS ON RECORD. T HE ASSESSING OFFICER MUST ASCERTAIN THE ACTUAL SALE CONSIDERATION RECEIVED BY THE ASSESSEE FROM SALE OF BUILT UP AREA BY TAKING INTO CONSIDERATION THE SALE DEEDS EX ECUTED DURING THE PREVIOUS YEAR RELEVANT TO ASST. YEAR UND ER DISPUTE. WE ALSO MAKE IT CLEAR THAT ANY ADVANCE REC EIVED BY THE ASSESSEE TOWARDS SALE OF BUILT UP AREA SHOULD N OT BE CONSIDERED FOR CAPITAL GAIN. FURTHER, IN THE ORIGI NAL ASSESSMENT THE ASSESSING OFFICER HAS ASSESSED THE SALE CONSIDERATION TO LONG TERM CAPITAL GAIN. HENCE, HE CANNOT CHANGE IT TO SHORT TERM CAPITAL GAIN IN THE CONSEQU ENTIAL ORDER IN ABSENCE OF ANY SUCH DIRECTION BY THE TRIBU NAL. SO FAR AS THE ADDITION OF RS.9,28,951/- IS CONCERNED, IT IS OBVIOUS THAT THE ASSESSING OFFICER HAS NOT COMPLIED TO THE INCOME-TAX APPELLATE TRIBUNALS DIRECTION FOR REFER RING TO THE DVO FOR DETERMINING THE MARKET VALUE. WE THER EFORE DIRECT THE ASSESSING OFFICER TO STRICTLY COMPLY TO THE DIRECTION OF THE TRIBUNAL IN THE EARLIER ORDER ON T HIS ISSUE. 12 ITA NO.95 OF 2014 M/S MEKI NS AGRO PRODUCTS LTD., HYD. IN RESPECT OF ADDITION OF RS.18,55,000/-, WE DIRECT THE ASSESSING OFFICER TO DECIDE THE SAME AFRESH AFTER CONSIDERING ALL MATERIALS ON RECORD. NEEDLESS TO S AY THE ASSESSING OFFICER MUST AFFORD A REASONABLE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE BEFORE DECIDING THE ISS UES. 12. IN THE RESULT, APPEAL FILED BY THE DEPARTMENT I S TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 4 TH -6-2014. SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER SD/ - (SAKTIJIT DEY) JUDICIAL MEMBER HYDERABAD, DATED THE 4 TH JUNE, 2014. JMR* COPY TO:- 1) DCIT, CIR-16(2), HYDERABAD. 2) M/S MEKINS AGRO PRODUCTS LTD., PLOT NO.30, IDA (M-1240T) GANDHI NAGAR, BALANAGAR, SECUNDERABAD. 3) CIT (A)-V, HYDERABAD. 4) CIT-IV, HYDERABAD. 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERABAD. 13 ITA NO.95 OF 2014 M/S MEKI NS AGRO PRODUCTS LTD., HYD.