ITO, Ward-7(2), Hyderabad V. Smt. A Laxmi Bai, Hyderabad

ITA 987/HYD/2013

• Counselvise Citation: 98722514 RSA 2013
• Duration Of Justice: 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-01-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 13-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ADAGIRI
• Assessee Lawyers: P RAVI SESHAGIRI RAO
• Keywords: Additional evidence
• Section: 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD BEFORE SHRI B.RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA.NO.987/HYD/2013 ASSESSMENT YEAR 2005-2006 ITO, WARD 7 (2) HYDERABAD. VS. SMT. A. LAXMI BAI HYDERABAD PAN ACUPA4493N (APPELLANT) (RESPONDENT) FOR REVENUE : MR. B. YADAGIRI FOR ASSESSEE : MR. P. RAVISESHAGIRI RAO DATE OF HEARING : 09.01.2014 DATE OF PRONOUNCEMENT : 24.01.2014 ORDER PER B. RAMAKOTAIAH, A.M. THIS IS REVENUES APPEAL AGAINST THE ORDERS OF THE CIT(A), VIJAYAWADA DATED 27.03.2013. THE ONLY GROUND RA ISED BY THE REVENUE IS THAT THE LEARNED CIT(A) ACCEPTED AD DITIONAL EVIDENCE IN THE FORM OF DEED DATED 29.12.2004 SHOWING RECONVEYANCE OF MORTGAGE IN VIOLATION OF RULE 46A OF I.T. RULES. 2. BRIEFLY STATED, THE ASSESSING OFFICER RECEIVED AN INTIMATION THAT THERE WAS A SALE OF PROPERTY FOR A CONSIDE RATION OF RS.37,85,500/- THROUGH THE AIR INFORMATION SYSTEM. ASSESSEE WAS ASKED TO EXPLAIN THE TRANSACTION, AFTER THE PROCEEDINGS WERE INITIATED UNDER SECTION 147 OF THE IT ACT. SINCE THE ASSESSEE HAS NOT COMPLIED WITH VARIOUS NOTICES ISSUED, ASSESSING OFFICER CONSIDERED THE ENTIRE VALUE SHOWN TOWARDS SALE OF PROPERTY AS LONG TERM CAPITAL GAINS AND COMPLETED THE ASSESSMENT UNDER SECTION 144 OF THE I.T. ACT, 1961. ITA.NO.987/HYD/2013 SMT. A. LAXMI BAI, HYDERABAD 3. AGGRIEVED BY THE ACTION OF THE A.O. ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A) WHICH HOWEVER WAS DISMISSED IN LIMINI FOR NON-COMPLIANCE. 4. ON FURTHER APPEAL, THE ITAT SET ASIDE THE ORDER AND RESTORED THE APPEAL WITH A DIRECTION TO CONDONE DELAY AN D DECIDE THE ISSUE ON MERITS. CONSEQUENT TO THAT, THE CIT(A) CONDONED THE DELAY AND ON THE SUBMISSIONS OF THE ASSESS EE GAVE RELIEF TO THE ASSESSEE STATING THAT THE DEED O F DOCUMENT DATED 29.12.2004 IS NOT OF SALE DOCUMENT BUT A DEED SHOWING RE-CONVEYANCE OF MORTGAGE. SINCE IT IS NOT A SALE HE HELD THAT NO CAPITAL GAIN AROSE TO THE ASSESSEE. 5. THE REVENUE IS AGGRIEVED ON THE ADMISSION OF THE DEED AND CONSEQUENTIAL RELIEF BY THE CIT(A). 6. AFTER CONSIDERING THE RIVAL CONTENTIONS OF THE DR AND THE LEARNED COUNSEL, WE ARE OF THE VIEW THAT THERE I S A MERIT IN THE REVENUE GROUND. EVEN THOUGH INFORMATION WAS RECEIVED THROUGH THE INTERNAL SYSTEMS BY WAY OF ANNUAL INFORMATION RETURNS, THE A.O. DO NOT HAVE THE BENEFIT OF THE ACTUAL REGISTERED DEED BY WHICH THE SAID TRANSACTION OC CURRED. IN THE ABSENCE OF THAT DEED ON THE BASIS OF THE INFORMAT ION RECEIVED, A.O. PRESUMED THE LONG TERM CAPITAL GAIN ON THE VALUE OF THE AMOUNT MENTIONED IN THE DEED AND ACCORD INGLY, UNDER AN EXPARTE ORDER BROUGHT TO TAX. EVEN THOUGH THE ASSESSEE FURNISHED THE COPY OF THE DOCUMENT DATED 29 .12.2004 TO THE CIT(A), THE CIT(A) WAS SUPPOSED TO REFER IT TO THE A.O. AND THEN ONLY HE COULD HAVE CONSIDERED THE ADDITIONAL EVIDENCE. OBVIOUSLY, THE DOCUMENT DATED 29.12.2004 WAS NOT BEFORE THE A.O. AT THE TIME OF ASSESSMENT. THEREFORE, TH ERE IS A ITA.NO.987/HYD/2013 SMT. A. LAXMI BAI, HYDERABAD CLEAR VIOLATION OF PROVISIONS OF RULE 46A BY THE CIT( A). THUS, THERE IS MERIT IN THE REVENUES CONTENTION. 7. ASSESSEE HAS PLACED THE SAID DOCUMENT AS PART OF PAPER BOOK WHICH INDICATES THAT IT IS A RECONVEYANCE OF MORTGAGE DEED. ASSESSEE SEEMS TO HAVE OBTAINED THE LO AN OF RS. 33.50 LAKHS ALONG WITH HER HUSBAND FOR BUSINESS PU RPOSE AND PAID AN AMOUNT OF RS.4,35,500/- TOWARDS INTEREST. CONSEQUENT TO THE REPAYMENT OF THE LOAN AS WELL AS THE INTEREST, THE PROPERTY MORTGAGED TO THE PARTIES OF FIRST PA RT WAS RECONVEYED IN FAVOUR OF ASSESSEE AND HER HUSBAND BY THE SAID DOCUMENT. APPARENTLY, THE TRANSACTION IS ONLY RECONVEYA NCE OF MORTGAGE DEED AND TO THAT EXTENT, ORDER OF THE CIT(A) I S CORRECT ON FACTS. BUT, HOWEVER, AS THERE IS VIOLATION OF RULE 46A OF THE I.T. RULES, 1962, WE ARE OF THE OPINION THAT, THAT DEE D HAS TO BE EXAMINED BY THE A.O. VIS-A-VIS THE RETURN FILED. THEREF ORE, IN THE INTEREST OF JUSTICE, THE ORDER OF THE CIT(A) IS SET ASIDE ALONG WITH THE ORDER OF THE A.O. AND THE MATTER IS RESTORED TO THE FILE OF THE A.O. TO EXAMINE THE DOCUMENT AND DECIDE AFRESH A S PER THE FACTS AND ACCORDING TO LAW. ACCORDINGLY, APPEAL OF T HE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 24.01.2014. SD/- SD/- (SAKTIJIT DEY) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACOUNTANT MEMBER HYDERABAD, DATE 24 TH JANUARY, 2014 VBP/- ITA.NO.987/HYD/2013 SMT. A. LAXMI BAI, HYDERABAD COPY TO : 1. ITO, WARD 7 (2), HYDERABAD 2. SMT. A. LAXMI BAI, D.NO.14 - 2 - 519/6, GOSHAMAHAL, HYDERABAD 3. CIT(A), VIJAYAWADA 4. CIT, VIJAYAWADA 5. D.R. ITAT A BENCH, HYDERABAD.