Chandralok Hotels Limited, Hyderabad, Hyderabad V. Deputy Commissioner of Income Tax , Circle-1(2), Hyderabad, Hyderabad

MA 77/Hyd/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5176 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Assessment Year: 2011-2012
• Appeal Filed On: 26-10-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital Gains
• Section: 50C; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD ‘B’ BENCH, HYDERABAD. BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND SHRI L. P. SAHU, ACCOUNTANT MEMBER (Through Virtual Hearing) M.A. No.77/Hyd/2021 (In ITA No.300/Hyd/2017) (Assessment Year : 2011-12) M/s. Chandralok Hotels Ltd., Hyderabad. PAN AACCC 9912A .....Appellant. Vs. Dy. Commissioner of Income Tax, Circle 1(2), Hyderabad. ..Respondent. Appellant By : Shri P. Murali Mohan Rao, C.A. Respondent By : Shri Sunil Gowtham (D.R.) Date of Hearing : 11.02.2022. Date of Pronouncement : 17.02.2022. O R D E R Per Bench (Oral) : This assessee’s instant Miscellaneous Application filed u/s.254(2) of Income Tax Act, 1961 (‘the Act’) seeks to recall/rectify the tribunal’s order in main case ITA No.300/Hyd/2017 dt.27.08.2021 restoring section 50C long term capital gains (LTCG) addition made by both the learned lower authorities back to the Assessing Officer to be decided afresh 2 MA No.77/Hyd/2021 after obtaining DVO’s report under sub-section (2) thereof. Heard both the parties. Case file perused. 2. The assessee's sole argument before us in support of the instant miscellaneous application. is that our remand directions have not taken into consideration its alleged oral agreement dt.2.5.2010 followed by payment of sale consideration dt.27.5.2010 finally culminating in the corresponding registered sale deed dt.24.1.2011; simultaneously. The Revenue’s case, on the other hand, in light of our detailed discussion in para 7 onwards in pages 8 & 9 is that the Bench has already discussed and declined the assessee's instant argument. Mr. Sunil Gowtham has also quoted hon’ble apex court’s landmark decisions defining contours of section 254(2) rectification proceedings in CIT Vs. Reliance Telecom Ltd. (2021) 133 taxmann.com 41 (SC) and ACIT Vs. Saurashtra Kutch Stock Exchange Limited (2008) 305 ITR 227 (SC) that such a recourse of long drawn process of roving enquiry(ies) is nowhere sustainable in law. 3. We have heard rival contentions and find merit in assessee's stand. This is for the primary reason that we are in Assessment Year 2011-12 wherein the 3 MA No.77/Hyd/2021 learned Assessing Officer’s first round assessment could not consider the twin proviso(es) inserted in sub-section (1) vide Finance Act, 2016 w.e.f. 1.4.2017 that actual sale consideration between the parties, as on the sale agreement, could also be taken as fair market value in case the vendee concerned had paid the same as per prescribed mode(s). Learned co-ordinate benches’ in Dharamshibhai Sonam Vs. ACIT (2011) 161 ITD 627 (Ahd) and Maria Fernandes Cheryl Vs. ITO (2021) 187 ITD 738 (SC) hold both these proviso(es) to be having retrospective effect since curative in nature. We, therefore, observe in light of the foregoing factual as well as legal position that once we have restored the main section 50C addition issue itself to be decided afresh after obtaining the DVO’s report, the assessee very well deserves an opportunity to plead and prove for the corresponding relief under the above stated proviso(es) by filing the necessary evidence to this effect; if so advised. The Revenue’s reliance on hon’ble apex court’s above-cited decisions (supra) are found to be totally mis-founded as we note that instant issue indeed requires us to issue the instant clarification. It is made clear that we have not expressed any view on merits since the impugned 4 MA No.77/Hyd/2021 issue already stands remanded to the learned Assessing Officer. No other argument has been raised before us. 4. This assessee's Misc. Application is allowed in above terms. Order pronounced in the open court on 17th Feb., 2022. Sd/- Sd/- (S.S. GODARA) (L.P. SAHU) Judicial Member Accountant Member Hyderabad, Dt.17.02.2022. * Reddy gp Copy to : 1. M/s. Chandralok Hotels Ltd., C/o P. Murali & Co., Cas, 6-3- 655/2/3, 1 st Floor, Somajiguda, Hyderabad – 500 082 2. DCIT, Circle 1(2), Hyderabad. 3. Pr. C I T-1, Hyderabad. 4. CIT(Appeals)-1, Hyderabad. 5. DR, ITAT, Hyderabad. 6. Guard File. By Order Sr. Pvt. Secretary, ITAT, Hyderabad.