Habib Mohammed, Hyderabad V. Dy.CIT, Central Circle-2, Hyderabad

MA 63/HYD/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1845 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 02-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K HARITA
• Assessee Lawyers: AJAY GANDHI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER M.A.NO.63/HYD/2014 ARISING OUT OF ITA.NO.929/HYD/2013 - ASSESSMENT YEAR 2006-2007 MR. HABIB MOHAMMED HYDERABAD PAN ACQPM 2944R VS. DCIT, CENTRAL CIRCLE 2 HYDERABAD (APPLICANT) (RESPONDENT) FOR ASSESSEE : MR. AJAY GANDHI FOR REVENUE : MS. K. HARITA DATE OF HEARING : 16.05.2014 DATE OF PRONOUNCEMENT : 23.05.2014 ORDER PER B. RAMAKOTAIAH, A.M. THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE WAS AGAINST THE ORDER OF THE ITAT VIDE ITA.NO.929/HYD/2013 DATED 07.03.2014. THE ASSESSEE RAISED THE PRESENT APPLICATION SUBMITTING THAT ITAT DID NO T ADDRESS THE ISSUE OF LEGAL JURISDICTION UNDER SECTION 153C AND ALSO THE ARGUMENTS MADE WITH REFERENCE TO EXPARTE ASSESSMENT MADE BY THE ASSESSING OFFICER. 2. IN THE COURSE OF ARGUMENTS OF THE APPEAL, ASSES SEE RAISED CONTENTIONS WITH REFERENCE TO JURISDICTION U NDER SECTION 153C STATING THAT NO DOCUMENT, MUCH LESS INCRIMINAT ING DOCUMENT BELONGING TO ASSESSEE WAS FOUND DURING THE SEARCH. THEREFORE, ISSUANCE OF NOTICE BY THE A.O. UNDER SEC TION 153C WAS BAD IN LAW. HOWEVER, IN THE COURSE OF ARGUMENTS , REVENUE WAS ASKED TO SUBMIT THE EVIDENCE ON THE BASIS OF WH ICH THE 2 M.A.NO.63/HYD/2014 IN ITA.NO.929/HYD/2013 MR. HABIB MOHAMMED, HYDERABAD A.O. BROUGHT TO TAX CAPITAL GAINS IN A.Y. 2006-07 A S AGAINST A.Y. 2004-05 DECLARED BY THE ASSESSEE. SINCE THE RE VENUE DID NOT FURNISH ANY EVIDENCE, WITHOUT GOING TO MERITS O F VARIOUS CLAIMS, ORDERS OF THE AUTHORITIES WERE SET ASIDE AN D ISSUE WAS RESTORED TO THE A.O. FOR FURNISHING LETTER DATED 12 .12.2011, EXAMINING VARIOUS ASPECTS AND TO DECIDE WHETHER CAP ITAL GAINS CAN INDEED BE TAXED IN THIS A.Y. 3. IT WAS THE CONTENTION OF THE LD. COUNSEL THAT ASSESSEE WOULD NOT BE IN A POSITION TO ARGUE THE JU RISDICTION ASPECT IF A.O. DECIDES THE ISSUE AGAINST THE ASSESS EE IN THIS A.Y. FOR THAT, THE PRESENT M.A. HAS BEEN PREFERRED. 4. AFTER CONSIDERING THE RIVAL CONTENTIONS, WE ARE OF THE OPINION THAT THE FUNDAMENTAL ISSUE WHETHER CAPI TAL GAINS CAN BE BROUGHT TO TAX IN THIS YEAR ON THE SO-CALLED LETTER DATED 12.12.2011, HAS TO BE ESTABLISHED FIRST. SINCE THE EVIDENCE ITSELF IS NOT ON RECORD, ITAT FELT THAT THIS ASPECT GOES TO THE ROOT OF THE MATTER AND DIRECTED THE A.O. TO CONFRONT THE ASSESSEE WITH THE SAID LETTER AND ESTABLISH THAT THE CAPITAL GAINS ARISES IN THIS IMPUGNED ASSESSMENT YEAR. THEREFORE, THE IS SUES ON LAW/ JURISDICTION WERE NOT ADJUDICATED. WE MAKE IT CLEAR THAT ASSESSEE IS FREE TO RAISE ALL ASPECTS INCLUDING JUR ISDICTIONAL ASPECT UNDER SECTION 153C, IF REQUIRED IN THE CONSE QUENTIAL PROCEEDINGS. ACCORDINGLY, M.A. OF THE ASSESSEE IS T REATED AS ALLOWED. 5. IN THE RESULT, M.A. OF THE ASSESSEE IS TREATED AS ALLOWED. 3 M.A.NO.63/HYD/2014 IN ITA.NO.929/HYD/2013 MR. HABIB MOHAMMED, HYDERABAD ORDER PRONOUNCED IN THE OPEN COURT ON 23.05.2014. SD/- SD/- (SAKTIJIT DEY) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEM BER HYDERABAD, DATED 23 RD MAY, 2014 VBP/- COPY TO : 1. MR. HABIB MOHAMMED, PLOT NO.341/A, ROAD NO.10, B ANJARA HILLS, HYDERABAD C/O . GANDHI & GANDHI, C.AS, 1002, PAIGAH PLAZA, BASHEERBAGH, HYDERABAD 500 063. 2. DCIT, CENTRAL CIRCLE-2, HYDERABAD 3. CIT(A)-I, HYDERABAD 4. CIT, (CENTRAL), HYDERABAD 5. D.R. ITAT, A BENCH, HYDERABAD.