ACIT, Circle - 6(1), Hyderabad V. Dr. Uma Challa, Hyderabad

MA 259/HYD/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7795 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-02-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 11-03-2011
• Assessment Year: misc
• Appeal Filed On: 31-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURESH BATTINI
• Assessee Lawyers: C P RAMASWAMY
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD BEFORE CHANDRA POOJARI, ACCOUNTANT MEMBER & SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER MA.258/HYD/2010 IN ITA NO.200/H/2009 & ASSESSMENT YEAR 2002-03 MA 259/H/2010 ITA NO.747 & 755/H/2010 ASSESSMENT YEAR 2003-04 THE ACIT, CIRCLE 6(1), HYDERABAD VS DR. UMA CHALLA, HYDERABAD (PAN ABFPC 5994 F) APPELLANT RESPONDENT APPELLANT BY : SHRI SURESH BATTINI RESPONDENT BY : SHRI C.P. RAMASWAMY DATE OF HEARING : 10.2.2012 DATE OF PRONOUNCEMENT : 17.2.2012 ORDER PER ASHA VIJAYARAGHAVAN, JM . BY THIS MISCELLANEOUS THE REVENUE SEEKS RECTIFICATI ON OF THE ORDER OF THE TRIBUNAL DATED 30.9.2009 IN ITA NO.2000/H/2009 FOR THE ASSESSMENT YEAR 2002-03. 2. BRIEF FACTS OF THE CASE ARE THAT THE TRIBUNAL HAS DISMISSED THE APPEAL FILED BY THE REVENUE IN THE CASE OF SMT. UMA CHALLA FOR THE ASSESSMENT YEAR 2002-03 IN ITA NO.2000/H/20 09 DATED 30.9.3009 BY FOLLOWING ORDER IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2003-04. 3. IT WAS ALSO STATED THAT A SEPARATE MA HAS BEEN FILED FOR THE ASSESSMENT YEAR 2003-04 IN THE ASSESSEES OWN CASE IN MA NO.259/H/2010 IN ITA NO.747 & 755/H/2007. MA NO.258 & 259/H/2010 DR.UMA CHALLA, HYD. 2 4. THE MA FILED BY THE REVENUE IS AS FOLLOWS: I) THERE IS NO RESIDENTIAL HOUSE PROPERTY ON PLOT NO.8-2- 293/82/A/548/A3, ROAD NO.27, JUBILEE HILLS, HYDERAB AD. THERE IS ALSO EVIDENCED BY THE THREE PHOTOGRAPHS TA KEN ON 6.4.2010 WHICH ARE ENCLOSED HEREWITH TO THIS PETITI ON. II) THE FINDING OF THE TRIBUNAL THAT EVEN A TIN SHE D IS FIT FOR HUMAN HABITATION AND, HENCE THE SAME IS TO BE CONSI DERED AS A RESIDENTIAL PROPERTY, IS A MISTAKE ON THE FACT S OF THE PRESENT CASE. 5. WE HEARD BOTH THE PARTIES AND PERUSED THE MATER IALS AVAILABLE ON RECORD. WE FIND THAT THE TRIBUNAL HAS IN PARA 4 & 5 HELD AS FOLLOWS: PARA 4........ WE HAVE CONSIDERED RIVAL SUBMISSION S ON EITHER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON REC ORD. THE ISSUE OF EXEMPTION U/S 54 WAS EXAMINED BY THE TRIBUNAL IN THE ASSESSEES OWN CASE IN RESPECT OF THE VERY SAME PRO PERTY FOR THE ASSESSMENT YEAR 2003-04. THIS TRIBUNAL, AFTER TAKI NG NOTE OF THE INTENTION OF THE LEGISLATURE, FOUND THAT THE SUPERS CTRUCTURE CONSTRUCTED BY THE ASSESSEE WAS FIT FOR HUMAN HABIT ATION. THEREFORE, THE JUDGEMENT OF THE ANDHRA PRADESH HIGH COURT IN THE CASE OF CIT VS. ZIABUNNISA BEGUM, 151 ITR 320 IS NO T APPLICABLE TO THE FACTS OF THE CASE. IT WAS ALSO OBSERVED BY THIS TRIBUNAL THAT IT IS NOT THE CASE OF THE REVENUE THAT THE SUPERSTR UCTURE IS NOT FIT FOR HUMAN HABITATION. 5........... WE HAVE ALSO CAREFULLY GONE THROUGH T HE DECISION IN THE CASE OF ITO VS. SMT. ROHINI REDDY IN ITA NO .595/H/2006 DATED 4.4.2008. IN THAT CASE, THE ASSESSEE PURCHAS ED A PROPERTY AT ROAD NO.33, JUBILEE HILLS, HYDERABAD, AND CLAIME D EXEMPT U/S MA NO.258 & 259/H/2010 DR.UMA CHALLA, HYD. 3 54 OF THE IT ACT. THE ASSESSING OFFICER INSPECTED THE PREMISES AND FOUND THAT THE PROPERTY WAS VACANT. HOWEVER, I T WAS SHOWN AS A HOUSE TO OBTAIN MUNICIPAL NUMBER., TEMPORARY SHEDS WERE ERECTED IN ORDER TO OBTAIN MUNICIPAL NUMBER. NO MA TERIAL WAS AVAILABLE ON RECORD TO SUGGEST THAT THE SHEDS WERE FIT FOR HUMAN HABITATION. IN THOSE FACTS AND CIRCUMSTANCES, THIS TRIBUNAL, AFTER FOLLOWING THE JUDGEMENT OF THE ANDHRA PRADESH HIGH COURT IN THE CASE OF ZIABUNNISA BEGUM, FOUND THAT THE ASSESSEE I S NOT ENTITLED FOR EXEMPTION U/S 54. HOWEVER, IN THE CASE BEFORE US, IN RESPECT OF THE VERY SAME PROPERTY, THE TRIBUNAL FOUND THAT THE SUPERSTRUCTURE IS FIT FOR HUMAN HABITATION AND, THE REFORE, ENTITLED FOR EXEMPTION U/S 54. IN VIEW OF THE DECISION OF T HE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2003-04 , IN OUR OPINION, THE DECISION IN THE CASE OF SMT. ROHINI RE DDY (SUPRA) MAY NOT BE APPLICABLE TO THE FACTS OF THIS CASE. SINCE THE FACTS ARE IDENTICAL TO THOSE FOR ASSESSMENT YEAR 2003-04, BY FOLLOWING THE ORDER OF THIS TRIBUNAL FOR THE ASSESSMENT YEAR 2003 -04, WE UPHOLD THE ORDER OF THE CIT(A). 6. THE TRIBUNAL HAS DISTINGUISHED THE JUDGEMENT O F ANDHRA PRADESH HIGH COURT IN THE CASE OF CIT VS. ZIABUNNIS A BEGUM (151 ITR 320) AND ARRIVED AT A CONCLUSION THAT THE SUPER STRUCTURE IS FIT FOR HUMAN HABITATION AND THEREFORE ENTITLED FOR EXEMPTION U/S 54 OF THE ACT. THEY HAVE ALSO HELD T HAT THE DECISION IN THE CASE OF ROHINI REDDY (SUPRA) IS NOT APPLICABLE TO THE FACTS OF THE CASE. SINCE THE FACTS ARE IDENTIC AL FOR BOTH THE ASSESSMENT YEARS AND SINCE WE FIND THAT THERE IS NO MISTAKE APPARENT IN THE ORDER PASSED BY THIS TRIBUNAL, THE MA FILED BY THE REVENUE U/S 254 (2) OF THE ACT IS DISMISSED. MA NO.258 & 259/H/2010 DR.UMA CHALLA, HYD. 4 6. IN THE RESULT, MA STANDS DISMISSED. ORDER PRONOUNCED IN THE COURT ON: 2.20 12 SD/- SD/- (CHANDRA POOJARI) ACCOUNTANT MEMBER (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER DATED THE 17 TH FEB. , 2012 COPY FORWARDED TO: 1. DR. UMA CHALLA, CHALLA HOSPITALS, D.NO.7-1`-71/A/1, DHARAM KARAM ROAD, AMEERPET, HYDERABAD 2. THE ACIT, CIRCLE 6(1),HYDERABAD 3. THE CIT(A)-IV, HYDERABAD 4. THE CIT-III, HYDERABAD 5. THE DR, ITAT, HYDERABAD NP/