ITO, Ward-6(1), Hyderabad V. Andela Ramakrishna, Hyderabad

MA 38/Hyd/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6749 (ITAT-HYDERABAD)
• Duration Of Justice: 11 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 01-06-2018
• Assessment Year: 2005-2006
• Appeal Filed On: 05-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M H NAIK
• Assessee Lawyers: S RAMA RAO
• Keywords: Sale consideration of property below Jantri Value
• Section: 143(3); 50C; 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B (SMC), HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER M.A. NO. 38/HYD/2017 (ARISING OUT OF ITA NO. 813/HYD/2016) ASSESSMENT YEAR: 2005-06 INCOME TAX OFFICER, WARD-6(1), HYDERABAD VS ANDELA RAMAKRISHNA, HYDERABAD [PAN: AJZPA7745E] (APPLICANT) (RESPONDENT) FOR REVENUE : SHRI M.H. NAIK, DR FOR ASSESSEE : SHRI S. RAMA RAO, AR DATE OF HEARING : 01-06-2018 DATE OF PRONOUNCEMENT : 13-06-2018 O R D E R PER B. RAMAKOTAIAH, A.M. : THIS MISCELLANEOUS APPLICATION IS PREFERRED BY THE REVENUE AGAINST THE ORDER IN ITA NO.813/HYD/2016, DATED 10-03- 2017. 2. REVENUE HAS RAISED THE MISCELLANEOUS APPLICATION S TATING AS UNDER: FACTS OF THE CASE: THE ASSESSEES, NAMELY SRI ANDELA SATTAIAH AND SRI A NDELA RAMAKRISHNA ARE KARTAS OF THEIR RESPECTIVE HUFS. SRI ANDELA RAM AKRISHNA IS SON OF SRI ANDELA SATTAIAH. THE HUF IS A JOINT OWNER OF A PLOT OF LAND ADMEASURING 296.34 SQ YARDS. THE ASSESSEES' SHARE IN THE PROPER TIES IS ONE-FIFTH. THE 2 M.A. NO. 38/HYD/2017 ASSESSEES ALONG WITH THEIR COPARCENERS HAVE SOLD TH E LAND FOR RS.22,00,000/-. THE ASSESSEES HAVE NOT FILED THE RE TURN. BASED ON THE INFORMATION THAT THE ASSESSEES HAVE SOLD LAND AND H AVE RECEIVED CONSIDERATION, A NOTICE UNDER SECTION 142(1) WAS IS SUED BY THE ASSESSING OFFICER ON 31.08.2007 AND A RETURN OF INCOME WAS FI LED IN RESPONSE THERETO ON 31.12.2007. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT BY I NVOKING THE PROVISIONS OF SECTION 143(3) AND BROUGHT TO TAX ONE -FIFTH SHARE OF ASSESSEE'S CAPITAL GAINS IN THE HANDS OF ASSESSEE I NDIVIDUAL. ON APPEAL, THE CIT(A) DIRECTED FOR TAXING THE CAPITAL GAINS IN THE HANDS OF ASSESSEE HUF. ON FURTHER APPEAL, THE HON'BLE ITAT VIDE TWO S EPARATE ORDERS (SUPRA) HAVE RENDERED TWO CONTRASTING DECISIONS UND ER SIMILAR FACTS AND CIRCUMSTANCES. IT IS PERTINENT TO MENTION HERE THAT THE JUDGEMENT OF SMC BENCH OF THE ITAT DELIVERED IN THE MONTH OF MARCH, 2017 DOES NOT MENTION ABOUT THE ITAT (REGULAR BENCH) DECISION DELIVERED IN THE MONT H OF JANUARY, 2017, I.E. MUCH PRIOR TO THE SUBJECT ORDER. UNDER THE CIR CUMSTANCES, IT IS PRAYED THAT THE HON'BLE ITAT MAY PLEASE RE-CONSIDER THE JU DGEMENT OF SMC BENCH IN THE LIGHT OF THE REGULAR BENCH DECISION AN D PASS NECESSARY ORDERS AS DEEMED FIT AND PROPER UNDER THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. 3. IT WAS FAIRLY ADMITTED BY THE DR THAT THE ORDER OF THE CO-ORDINATE BENCH WAS NOT PLACED BEFORE THE SMC BENCH. 4. IN THESE CIRCUMSTANCES, I DO NOT FIND ANY MISTAKE AP PARENT FROM RECORD WHICH CAN BE RECTIFIED U/S. 254(2) OF THE ACT. THE SMC BENCH HAS HELD AS UNDER: 'BOTH ON FACTS AS WELL AS ON PRINCIPLES OF LAW, THE DIRECTION GIVEN BY THE CIT(A) IS NOT SUSTAINABLE. SINCE THE CIT(A) HAS NOT ADJUDICATED WHETHER THE PROVISIONS OF SECTION 50C CAN BE INVOKE D IN A CASE A TRANSFER OF TENANCY RIGHTS, BUT NOT A LAND AND BUILDING, I A M ALSO NOT ADJUDICATING THAT ISSUE, EVEN THOUGH ASSESSEE HAS RAISED THE GRO UNDS, THAT CAPITAL GAINS HAS NOT BEEN CORRECTLY WORKED OUT. SINCE, THE TAXATION OF CAPITAL GAINS IN THE HANDS OF ASSESSEE-INDIVIDUAL HAS BECOM E FINAL BY THE ORDER OF CIT(A), THERE IS NO NEED TO ADJUDICATE THE OTHER GROUNDS. GROUND NOS. 3 AND 6 ARE ACCORDINGLY ALLOWED AND THE DIRECTION GIV EN BY THE CIT(A) IN THE LAST SENTENCE OF THE ORDER IN PARA 4.5 IS SET ASIDE .' 3 M.A. NO. 38/HYD/2017 4.1. SINCE THE JUDGMENT WAS GIVEN ON THE CONTENTIONS RAI SED, FACTS OF THE CASE AND SINCE THE DECISION OF SHRI A. SA TTAIAH WAS NOT BEFORE THE BENCH, THE SAME DOES NOT LEAD TO MISTAKE APPARENT FROM RECORD . THE BENCH HAS NO POWER TO REVIEW THE DECISION AND ONLY A HIGHER FORUM CAN CONSIDER THE MERITS OF THE DEC ISION. MOREOVER, THE SMC BENCH HAS RELIED ON ANOTHER CO-ORDI NATE BENCH DECISION PLACED BEFORE IT, ON SIMILAR FACTS. I AM OF THE VIEW THAT THE MISCELLANEOUS APPLICATION DESERVES TO BE REJECT ED. 5. IN THE RESULT, MISCELLANEOUS APPLICATION IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH JUNE, 2018 SD/- (B. RAMAKOTAIAH) ACCOUNTANT MEMBER HYDERABAD, DATED 13 TH JUNE, 2018 TNMM 4 M.A. NO. 38/HYD/2017 COPY TO : 1. INCOME TAX OFFICER, WARD-6(1), HYDERABAD. 2. SRI ANDELA RAMAKRISHNA, HYDERABAD. C/O. SRI S. R AMA RAO, ADVOCATE, FLAT NO. 102, SHRIYA S ELEGANCE, 3-6-643, STREET NO. 9, HIMAYAT NAGAR, HYDERABAD. 3. CIT (APPEALS)-9, HYDERABAD. 4. PR.CIT-6, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.