Syed Maqdoom Mohiuddin Rep by GPA Mrs. Adeeb Ali Khan alias Adeebunnisa Begum, Hyderabad V. Income Tax Officer, Ward-5(3), Hyderabad

MA 82/Hyd/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6209 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 14-12-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 50C; 54F; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER M.A. NO. A.Y. APPLICANT RESPONDENT 80/HYD/2017 (IN ITA NO.816/HYD/17) 2005-06 SYED JAMALUDDIN ALI KHAN, BY L/R. MRS. ADEEBUNNISA BEGUM (ALIAS) ADEEB ALI KHAN HYDERABAD [PAN: AGPPA5733P] THE INCOME TAX OFFICER, WARD-5(3), HYDERABAD 81/HYD/2017 ( IN ITA NO. 817/HYD/17) 2005-06 RAFIA HUSSAIN, BY GPA MRS. ADEEBUNNISA BEGUM (ALIAS) ADEEB ALI KHAN HYDERABAD [PAN: AJXPR4536Q] THE INCOME TAX OFFICER, WARD-5(3), HYDERABAD 82/HYD/2017 ( IN ITA NO. 818/HYD/17) 2005-06 SYED MAQDOOM MOHIUDDIN, BY GPA MRS. ADEEBUNNISA BEGUM (ALIAS) ADEEB ALI KHAN HYDERABAD [PAN: AMLPM6602R] THE INCOME TAX OFFICER, WARD-5(3), HYDERABAD 83/HYD/2017 ( IN ITA NO. 819/HYD/17) 2005-06 NAJMA HUSSAIN, BY GPA MRS. ADEEBUNNISA BEGUM (ALIAS) ADEEB ALI KHAN HYDERABAD [PAN: AJJPN8340G] THE INCOME TAX OFFICER, WARD-5(3), HYDERABAD 84/HYD/2017 ( IN ITA NO. 820/HYD/17) 2005-06 SYED AZIZUDDIN ALI KHAN, BY L/R. MRS. ADEEBUNNISA BEGUM (ALIAS) ADEEB ALI KHAN HYDERABAD [PAN: AICPA9160B] THE INCOME TAX OFFICER, WARD-5(3), HYDERABAD FOR ASSESSEE : SHRI ABU AKARAM, AR FOR REVENUE : SMT. N. SWAPNA, DR DATE OF HEARING : 29-12-2017 DATE OF PRONOUNCEMENT : 28-03-2018 O R D E R PER SMT. P. MADHAVI DEVI, J.M. : ALL THESE MISCELLANEOUS APPLICATIONS ARE FIL ED BY THE ASSESSEES SEEKING RECTIFICATION OF THE ALLEGED MISTAK ES IN THE ORDER MA. NOS. 80, 81, 82, 83 & 84/HYD/2017 :- 2 - : OF THE TRIBUNAL DATED 29-09-2017. ACCORDING TO ASSESS EES, FOLLOWING ARE THE MISTAKES, WHICH NEED RECTIFICATION: 3. HENCE THIS APPLICATION IS BEING FILED WITH A RE QUEST TO RECTIFY THE FOLLOWING MISTAKES. (I) THE HON'BLE TRIBUNAL IN PARA.L1 OF THE ORDER, R ELYING ON THE DECISION OF CIT VS. G.VISWANATHAM (172 ITR 0401) HELD THAT THE PROVISIONS OF SUB SECTION (2) OF THE SECTION 150 ARE APPLICABLE TO TH E APPLICANT'S CASE. HOWEVER WHILE APPLYING THE RATIONALITY OF THE SAID ORDER TO THE FACTS OF THE APPLICANT'S CASE, THE HON'BLE TRIBUNAL RELIED ON TH E ORDER OF THE CIT (APPEALS) WHICH WAS DATED 30-06-2011 AND WHICH WAS THE SUBJECT MATTER OF THE APPEAL BEFORE THE HON'BLE TRIBUNAL. (II) THERE WAS NO FINDING OR DIRECTION IN THE SAID ORDER NOR WAS IT HELD IN THE SAID ORDER THAT THE CAPITAL GAINS CANNOT BE CHA RGED FOR THE A.Y. 2007- 08. IT WAS ONLY IN THE ORDER OF THE HON'BLE TRIBUNA L WHICH WAS PRONOUNCED ON 06-062012 THAT IT WAS HELD THAT THE CAPITAL GAIN S CANNOT BE POSTPONED TO A.Y.200708 IN A CASE WHERE THE DEVELOPMENT AGREE MENT WAS EXECUTED ON 31-12-2004. HENCE THE DATE WHICH IS RELEVANT FOR THE PURPOSE OF CALCULATING THE TIME LIMIT WAS THE DATE ON WHICH THE HON'BLE TRIBUNAL PR ONOUNCED ITS ORDER. THIS WAS ON 06-06-2012 A DATE WHICH SUBSEQUENT TO T HE DATE ON WHICH THE ASSESSMENT FOR THE A.Y. 2005-06 GOT BARRED BY L IMITATION ON 31-03- 2012. HENCE IT IS PRAYED THAT IT MAY BE HELD THAT INITIAT ION OF THE RE-ASSESSMENT PROCEEDINGS ITSELF WAS BARRED BY LIMITATION, AND AL LOW THIS GROUND. (II) IN PARA.12 THE HON'BLE TRIBUNAL RELYING ON THE DECISIONS OF VARIOUS HIGH COURTS AND THE TRIBUNALS INCLUDING THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS SYED ALI ADIL (352 ITR 0418) HELD THAT THE APPLICANT IS ENTITLED TO DEDUCTION UNDER SECTION 54 F OF THE INCOME-TAX ACT IN RESPECT OF MORE THAN ONE RESIDENTIAL FLATS. SINCE THE APPLICANT RECEIVED ONLY RESIDENTIAL FLATS IN CONSEQUENCE OF ENTERING INTO THE DEVELOPMENT AGREEMENT THIS GROUND WAS ALLOWED. MA. NOS. 80, 81, 82, 83 & 84/HYD/2017 :- 3 - : AS SUCH THERE WAS NO NECESSITY FOR COMPUTING THE CA PITAL GAINS EITHER BY APPLYING THE PROVISIONS OF SEC.50C OR OTHERWISE. HENCE THE APPLICANT SUBMITS THAT THE INCOME-TAX OFF ICER BE DIRECTED TO ALLOW THE EXEMPTION WITHOUT THE NECESSITY OF COMPUT ING THE CAPITAL GAINS WHICH WILL BE INFRUCTUOUS. 2. LD. COUNSEL FOR THE ASSESSEES REITERATED THE SUBMI SSIONS MADE IN THE APPLICATION, WHILE THE LD.DR SUBMITTED THAT THE RE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL WHICH NEEDS RE CTIFICATION. 3. HAVING CONSIDERED THE RIVAL CONTENTIONS AND MATERIAL ON RECORD, WE FIND THAT THE ALLEGED MISTAKES RAISED IN PAR A 3(I) AND (II) ARE NOT MISTAKES APPARENT FROM RECORD RECTIFIABLE U/S. 254(2) OF THE ACT BUT NEED RE-APPRECIATION OF THE CASE AND WOULD AMOUNT TO REVIEW OF THE ORDER OF THE TRIBUNAL, WHICH IS NOT PERM ISSIBLE U/S. 254(2) OF THE INCOME TAX ACT [ACT]. THEREFORE, THE OBJECTIONS RAISED BY THE ASSESSEE IN PARA 3(I) AND (II) ABOUT THE APPLIC ABILITY OF THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. G. VISWANATHAM [172 ITR 401] ARE REJECTED. 3.1. AS REGARDS THE OBJECTIONS RAISED IN PARA 3(II), WE FIND THAT WE HAVE ALREADY GIVEN A FINDING THAT ASSESSEE IS ENTITLED FOR DEDUCTION U/S. 54F OF THE ACT IN RESPECT OF MORE THAN ONE RESIDE NTIAL FLATS. AS RIGHTLY POINTED OUT BY THE ASSESSEE, BY VIRTUE OF THE DEVELOPMENT AGREEMENT, THE ASSESSEE HAS RECEIVED ONLY RESIDENTIAL FLATS AND THEREFORE, THERE IS NO REQUIREMENT TO COMPUTE TH E CAPITAL GAIN BY APPLYING THE PROVISIONS OF SECTION 50C OF THE ACT. THEREFORE, THIS FINDING OF THE TRIBUNAL IN PARA 13 OF ITS ORDER, DIRECTING THE AO TO TAKE THE COST OF CONSTRUCTION OF THE F LATS BY THE MA. NOS. 80, 81, 82, 83 & 84/HYD/2017 :- 4 - : BUILDER AS THE SALE CONSIDERATION RECEIVED BY ASSESSE E FOR TRANSFER OF LAND TO THE DEVELOPMENT FOR COMPUTING LONG TERM CAP ITAL GAIN IS NOT WARRANTED. THEREFORE, THIS DIRECTION IS REMOVED FROM THE ORDER DT. 29-09-2017. THE ORDER STANDS MODIFIED ACCO RDINGLY. 4. IN THE RESULT, MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEES ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH MARCH, 2018 SD/- SD/- (S. RIFAUR RAHMAN) (P. MADHAVI DEVI ) ACCOUNTANT MEMBER JUDICIAL MEMB ER HYDERABAD, DATED 28 TH MARCH, 2018 TNMM MA. NOS. 80, 81, 82, 83 & 84/HYD/2017 :- 5 - : COPY TO : 1. SYED JAMALUDDIN ALI KHAN, BY L/R. MRS. ADEEBUNNI SA BEGUM (ALIAS) ADEEB ALI KHAN, 5-10-196, HILL FORT R OAD, HYDERABAD. 2. RAFIA HUSSAIN, BY GPA MRS. ADEEBUNNISA, BEGUM (A LIAS) ADEEB ALI KHAN, 5-10-196, HILL FORT ROAD, HYDERABAD . 3. SYED MAQDOOM MOHIUDDIN, BY GPA MRS. ADEEBUNNISA BEGUM (ALIAS) ADEEB ALI KHAN, 5-10-196, HILL FORT R OAD, HYDERABAD. 4. NAJMA HUSSAIN, BY GPA MRS. ADEEBUNNISA BEGUM (ALIAS) ADEEB ALI KHAN, 5-10-196, HILL FORT ROAD, HYDERABAD. 5. SYED AZIZUDDIN ALI KHAN, BY L/R. MRS. ADEEBUNNIS A BEGUM (ALIAS) ADEEB ALI KHAN, 5-10-196, HILL FORT R OAD, HYDERABAD. 2. THE INCOME TAX OFFICER, WARD-5(3), HYDERABAD. 3. CIT(A)-10, HYDERABAD. 4. PR.CIT-IV, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.