The ITO, Ward-2, Tenali v. Sri Kallam Veera Reddy,

CO 1/VIZ/2011 | 2007-2008
Pronouncement Date: 14-07-2011 | Result: Dismissed

Appeal Details

RSA Number 125323 RSA 2011
Assessee PAN AWZPK9827E
Bench Visakhapatnam
Appeal Number CO 1/VIZ/2011
Duration Of Justice 5 month(s)
Appellant The ITO, Ward-2, Tenali
Respondent Sri Kallam Veera Reddy,
Appeal Type Cross Objection
Pronouncement Date 14-07-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 14-07-2011
Date Of Final Hearing 20-04-2011
Next Hearing Date 20-04-2011
Assessment Year 2007-2008
Appeal Filed On 14-02-2011
Judgment Text
ITA NO3 AND CO 1 OF 2011 KALLAM VEERA REDDY GUNTUR PAGE 1 OF 10 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI BR BASKARAN ACCOUNTANT MEMBER ITA NO. 3/VIZAG/2011 ASSESSMENT YEAR: 2007-08 ITO WARD-2 TENALI KALLAM VEERA REDDY KILLIPARA GUNTUR (APPELLANT) VS. (RESPONDENT) PAN NO:AWZPK 9827 E C.O. NO. NO.1/VIZAG/2011) (ARISING OUT OF ITA NO. 3/VIZAG/2011) ASSESSMENT YEAR: 2007-08 ITO WARD-2 TENALI KALLAM VEERA REDDY KILLIPARA GUNTUR (APPELLANT) VS. (RESPONDENT) PAN NO:AWZPK 9827 E DEPARTMENT BY: SHRI T.H. LUCAS PETER CIT (DR) ASSESSEE BY: SHRI G.V.N. HARI CA ORDER PER SHRI B. R. BASKARAN ACCOUNTANT MEMBER: THE APPEAL OF THE REVENUE AND THE CROSS OBJECTION O F THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 01.09.2010 PAS SED BY LEARNED CIT(A) GUNTUR AND THEY RELATE TO THE ASSESSMENT YEAR 2007- 08. 2. THE GROUNDS RAISED BY THE REVENUE READ AS UNDER: (I) THE CIT (APPEALS) IS ERRONEOUS BOTH ON FACTS AN D IN LAW. (II) THE CIT (A) ERRED IN STATING THAT THE ASSESSIN G OFFICER AND DVO IGNORED THE FACT SIMPLY STATING THAT THE SR O VALUED THE SITE IN QUESTION AS ON 20.6.2005 AND 11.10.2006 WAS ONLY RS.1 150/- AS FURNISHED UNDER T HE RIGHT TO INFORMATION ACT IN VIEW OF THE FACT AS IT WAS ITA NO3 AND CO 1 OF 2011 KALLAM VEERA REDDY GUNTUR PAGE 2 OF 10 CLARIFIED BY THE SRO SUBSEQUENTLY THAT IT WAS A MISTAKENLY SHOWN. (III) THE CIT (A) ERRED IN STATING THAT THE POSSESSION WA S NOT GIVEN TO THE ASSESSEE AS WAS EVIDENT BY THE SALE DE ED WHEREIN THE ASSESSEE CONTRIBUTED HIS SIGNATURE THER EON IN THE CAPACITY OF A GPA HOLDER-CUM-HOLDER OF AGREEMENT OF SALE SINCE THE ASSESSEE HAD PAID THE ENTIRE AMOUNT AS PER SALE AGREEMENT AND ALSO IN PARTICULAR THE DEED WAS SPOKEN THE ASSESSEE AS PURCHASER. (IV) THE CIT (A) ERRED IN HOLDING THAT THE ASSESSING OFF ICER CROPPED THE ISSUE OF CAPITAL GAINS EVEN THOUGH THE ASSESSEE HAD CATEGORICALLY STATED THAT THE POSSESSI ON OF THE LAND WAS NOT GIVEN TO THE APPELLANT IN VIEW OF THE FACT THAT THE ASSESSEE HAD PAID THE FULL AMOUNT IN QUESTION BEFORE THE DEED WAS EXECUTED AND ALSO ACCOUNTED FOR THE SAME IN ACCOUNTS BOTH AT THE TIME OF PURCHASE AND ALSO AT THE TIME OF SALE AND ALSO ARRI VED AT A LOSS AND CLAIMED THE SAME WHILE FILING THE RETURN OF INCOME. (V) THE CIT (A) ERRED IN HOLDING THAT THE ASSESSEE WAS DOING CHARITY WHILE ADMITTING A SHORT TERM CAPITAL LOSS ON THE ACTIVITY SINCE THE ASSESSEE WAS EARNED CAPIT AL GAINS IN ANOTHER VENTURE WHILE WORKING OUT A CAPITA L GAIN TO THE TUNE OF RS.2 78 312/-. (VI) ANY OTHER GROUND OR GROUNDS THAT MAY BE URGED AT TH E TIME OF HEARING. ALL THESE GROUNDS ARE DIRECTED AGAINST THE DECISION OF THE LEARNED CIT (A) IN DELETING THE SHORT TERM CAPITAL GAIN ASSESSED IN TH E HANDS OF THE ASSESSEE. 3. THE FACTS RELATING TO THE CASE ARE STATED IN BRI EF. THE ASSESSEE IS DERIVING INCOME FROM MONEY LENDING AND AGRICULTURAL ACTIVITIES. HE FILED HIS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION A DMITTING A TOTAL INCOME OF RS.2 73 186/- AND THE AGRICULTURAL INCOME OF RS. 1 25 000/-. DURING THE COURSE OF SCRUTINY PROCEEDINGS IT CAME TO LIGHT TH AT THE ASSESSEE HAS SOLD AN IMMOVABLE PROPERTY CONSISTING OF A SITE ADMEASUR ING 3432 SQ. FT. AN OLD ITA NO3 AND CO 1 OF 2011 KALLAM VEERA REDDY GUNTUR PAGE 3 OF 10 RCC GODOWN AND A HOUSE COVERED BY ACC SHED WITH PLI NTH AREA OF 2682 SQ.FT AND 260 SQ.FT. RESPECTIVELY WHICH WAS SITUAT ED IN ANKIREDDIPALEM VILLAGE OF GUNTUR MUNICIPAL CORPORATION. THE ASSESS EE HAD SHOWN THE SALE VALUE AT RS. 29 75 850/- ON WHICH HE HAD COMPUTED S HORT TERM CAPITAL LOSS OF RS.14 150/-. THE SAID PROPERTY WAS ORIGINALLY OW NED BY A PARTNERSHIP CONCERN NAMED M/S SHAW ESWARLAL VADILAL. THE ASSESS EE ENTERED INTO AN AGREEMENT WITH THE PARTNERSHIP FIRM CITED ABOVE ON 20-6-2005 FOR PURCHASING THE ABOVE CITED PROPERTY. THE SAID SALE AGREEMENT WAS TITLED AS SALE AGREEMENT-CUM-GENERAL POWER OF ATTORNEY. TH E ASSESSEE ALSO PAID FULL AMOUNT OF SALE CONSIDERATION OF RS.27.00 LAKHS TO THE PARTNERSHIP FIRM ON THE DATE OF AGREEMENT ITSELF. THE SAID AGREEMENT WAS REGISTERED WITH SRO GUNTUR AS DOC. NO. 3796/05. SUBSEQUENTLY THE SAID PROPERTY WAS SOLD ON 11.10.2006 TO A CONCERN NAMED M/S KANYAKA STEELS FOR A CONSIDERATION OF RS.27.00 LAKHS (I.E. AT THE SAME VALUE AT WHICH THE ASSESSEE PURCHASED THE PROPERTY). THE CONVEYANCE DEED FOR THE SAID SA LE WAS SIGNED BY THE ASSESSEE TWO TIMES I.E. FIRST IN THE CAPACITY AS T HE GPA HOLDER OF THE ABOVE SAID PARTNERSHIP FIRM AND SECONDLY IN HIS INDIVIDUA L CAPACITY. IN THE RETURN OF INCOME THE ASSESSEE DISCLOSED RECEIPTS FROM THI S SALE TRANSACTION AT RS.29 75 850/- AND COMPUTED SHORT TERM CAPITAL LOSS OF RS.14 150/-. THE ASSESSING OFFICER ON NOTICING THAT THE SALE CONSID ERATION WAS SHOWN AT RS.27.00 LAKHS BOTH AT THE TIME OF PURCHASE AND SAL E MADE ENQUIRIES WITH THE CONCERNED SUB REGISTRAR AND ASCERTAINED THAT TH E VALUE OF THE IMPUGNED PROPERTY WAS FIXED AT RS.97 30 000/- BY TH E SUB REGISTRAR FOR THE STAMP DUTY PURPOSES. ACCORDINGLY THE ASSESSING OF FICER PROPOSED TO ADOPT THE SALE VALUE OF THE IMPUGNED PROPERTY AT RS.97 30 000/- AS PER THE PROVISIONS OF SEC.50C OF THE ACT. SINCE THE ASSESS EE OBJECTED TO THE SAID PROPOSAL THE ASSESSING OFFICER REFERRED THE MATTER FOR VALUATION TO THE EXECUTIVE ENGINEER OF THE VALUATION CELL (DVO) AS P ER THE PROVISIONS OF SEC.50C OF THE ACT. THE DVO ESTIMATED THE FAIR MAR KET VALUE OF THE IMPUGNED PROPERTY AT RS.1 05 29 000/-. AS PER THE PROVISIONS OF ITA NO3 AND CO 1 OF 2011 KALLAM VEERA REDDY GUNTUR PAGE 4 OF 10 SEC.50C(3) IF THE VALUE DETERMINED BY THE DVO EXCE ED THE VALUE ADOPTED FOR STAMP DUTY PURPOSES THEN THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY (SUB-REGISTRAR) SHALL BE TAKEN AS THE FUL L VALUE OF CONSIDERATION FOR THE PURPOSES OF SEC.50C OF THE ACT. ACCORDINGLY T HE ASSESSING OFFICER ADOPTED THE FULL VALUE OF SALE CONSIDERATION OF THE IMPUGNED PROPERTY AT RS.97 30 000/- AND ACCORDINGLY COMPUTED THE SHORT T ERM CAPITAL GAIN ON ITS SALE AT RS.67 70 050/-. 4. AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APP EAL BEFORE THE LEARNED CIT (A). BEFORE THE FIRST APPELLATE AUTHORI TY THE ASSESSEE CONTENDED THAT HE BECAME THE GPA HOLDER OF THE PROP ERTY WITHOUT POSSESSIONARY RIGHTS AND HENCE THE PROVISIONS OF 53 A OF THE TRANSFER OF THE PROPERTY ACT DO NOT APPLY TO HIS CASE. ACCORDINGLY IT WAS CONTENDED THAT THE PARTNERSHIP FIRM M/S SHAW ESWARLAL VADILAL CONT INUED TO OWN THE PROPERTY AND THE CAPITAL GAIN IF ANY IS ASSESSABL E IN THE HANDS OF THE SAID FIRM ONLY. BEFORE THE LEARNED CIT (A) THE ASSESSEE ALSO QUESTIONED THE VALUATION DETERMINED BY THE DVO. THE LEARNED CIT (A ) WAS CONVINCED WITH THE CONTENTIONS OF THE ASSESSEE AND ACCORDINGLY HEL D THAT THE SHORT TERM CAPITAL GAIN HAS TO BE ASSESSED IN THE HANDS OF THE FIRM ONLY AND NOT IN THE HANDS OF THE ASSESSEE. HOWEVER THE LEARNED CIT (A) DID NOT ACCEPT THE PLEA OF THE ASSESSEE THAT HE DID NOT MAKE ANY PROFI T IN THE IMPUGNED TRANSACTIONS. ACCORDINGLY THE LEARNED CIT (A) ESTIM ATED THE INCOME EARNED BY THE ASSESSEE FROM OUT OF THE IMPUGNED TRANSACTIO NS AT 10% OF THE SALE VALUE. THE LEARNED CIT (A) ALSO DIRECTED THE ASSES SING OFFICER TO INFORM THE DETAILS OF SALE TO THE ASSESSING OFFICER HAVING JUR ISDICTION OVER THE FIRM M/S SHAW ESWARLAL VADILAL. THE REVENUE WAS AGGRIEVED BY THE ORDER OF THE LEARNED CIT (A) AND HENCE THE PRESENT APPEAL WAS FI LED BEFORE US. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTE D THAT THE ASSESSEE HAS BECOME THE ABSOLUTE OWNER OF THE IMPUG NED PROPERTY BY ITA NO3 AND CO 1 OF 2011 KALLAM VEERA REDDY GUNTUR PAGE 5 OF 10 VIRTUE OF SALE AGREEMENT CUM POWER OF ATTORNEY ENTE RED ON 20.6.2005 FOR THE REASON THAT NOBODY SHALL GIVE THE FULL VALUE OF SALE CONSIDERATION FOR BECOMING A SIMPLE POWER OF ATTORNEY HOLDER. FURT HER IT IS NOT BELIEVABLE THAT THE ASSESSEE HAS BLOCKED HIS FUNDS TO THE TUNE OF RS.27.00 LAKHS FOR MORE THAN ONE YEAR IN THE IMPUGNED TRANSACTIONS WIT HOUT EXPECTING ANY RETURN. ACCORDINGLY HE SUBMITTED THAT THE SHORT TE RM CAPITAL GAIN COMPUTED BY THE ASSESSING OFFICER IN ACCORDANCE WITH THE PRO VISIONS OF 50C OF THE ACT HAS TO BE ASSESSED IN THE HANDS OF THE ASSESSEE ONL Y. HE FURTHER SUBMITTED THAT THE INCOME FROM THE IMPUGNED TRANSACTIONS ESTI MATED AT 10% BY THE LEARNED CIT (A) IS NOT IN ACCORDANCE WITH THE PROVI SIONS OF THE ACT. 6. ON THE OTHER HAND THE LEARNED AUTHORISED REPRESE NTATIVE SUBMITTED THAT THE ASSESSEE DID NOT TAKE POSSESSION OF THE IM PUGNED PROPERTY AND HENCE IT CANNOT BE SAID THAT THE ASSESSEE HAS BECOM E THE OWNER OF THE PROPERTY. IN THIS REGARD HE SUBMITTED THAT THE MAI N CONDITION STATED IN THE PROVISIONS OF SEC.53A OF THE TRANSFER OF THE PROPER TY ACT IS THAT THE POSSESSION OF THE PROPERTY SHOULD HAVE BEEN GIVEN I N PART PERFORMANCE OF THE CONTRACT. ACCORDINGLY HE CONTENDED THAT THE A SSESSING OFFICER ERRED IN LAW IN TREATING THE ASSESSEE AS THE OWNER WITHOUT R EALIZING THAT THE ASSESSEE HEREIN DID NOT TAKE THE POSSESSION OF THE PROPERTY AT ALL. IN SUPPORT OF HIS CONTENTIONS THE LEARNED AUTHORISED REPRESENTATIVE INVITED OUR ATTENTION TO THE SALE DEED DATED 11.10.2006 EXE CUTED IN FAVOUR OF M/S KANYAKA STEELS. HE SUBMITTED THAT THE SAID SALE DE ED WAS EXECUTED BY THE ASSESSEE ONLY IN HIS CAPACITY AS GPA HOLDER OF THE FIRM. HE ALSO JOINED AS CO-EXECUTANT SINCE HE WAS HAVING RIGHT OVER THE PR OPERTY BY VIRTUE OF THE SALE AGREEMENT EXECUTED EARLIER. IN THE SAID SALE D EED IT IS CLEARLY MENTIONED THAT THE POSSESSION OF THE PROPERTY IS HA NDED OVER BY THE FIRM TO THE BUYER. ACCORDINGLY THE LEARNED AUTHORISED REPRE SENTATIVE SUBMITTED THAT THE CAPITAL GAIN IN THE IMPUGNED TRANSACTIONS HAS TO BE ASSESSED IN THE HANDS OF THE FIRM ONLY. BY INVITING OUR ATTENTION T O PARA NO.4.3 OF THE ORDER ITA NO3 AND CO 1 OF 2011 KALLAM VEERA REDDY GUNTUR PAGE 6 OF 10 OF THE LEARNED CIT (A) THE LEARNED AUTHORISED REPR ESENTATIVE SUBMITTED THAT THE FIRST APPELLATE AUTHORITY HAS DIRECTED THE ASSESSING OFFICER TO INFORM THE DETAILS OF SALE TO THE ASSESSING OFFICER HAVING JURISDICTION OF THE FIRM AND HENCE HIS ORDER CANNOT BE FOUND FAULT WITH. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND CARE FULLY PERUSED THE RECORD. THE ASSESSEE HEREIN HAS ENTERED INTO SALE AGREEMEN T CUM GENERAL POWER OF ATTORNEY WITH A PARTNERSHIP FIRM NAMED M/S SHAH ESWARLAL VADILAL ON 20-06-2005 WHEREIN THE SALE CONSIDERATION WAS STAT ED AS RS.27.00 LAKHS. ON THE DATE OF EXECUTION OF THE SAID AGREEMENT ITSE LF THE ASSESSEE HEREIN PAID THE ENTIRE SALE CONSIDERATION BY WAY OF DEMAND DRAFTS THE RECEIPT OF THE SAME WAS ALSO ACKNOWLEDGED IN THE AGREEMENT ITS ELF BY THE PARTNERSHIP FIRM. THE ASSESSEE HEREIN WAS GIVEN GENERAL POWER OF ATTORNEY FOR THE FOLLOWING REASONS MENTIONED IN THE SAID SALE AGREEM ENT. THE ASSESSEE HEREIN IS REFERRED AS PURCHASER IN THE SALE AGREE MENT: AS THE PURCHASER HAS NOT PREPARED TO GET THE SALE PROPERTY REGISTERED IN FAVOUR OF THE PURCHASER OR H IS/HER NOMINEES IMMEDIATELY AND AS THE VENDOR FIRM MAY NOT BE AVAILABLE TO REGISTER THE PROPER SALE DEED/DEEDS IN FAVOUR OF THE PURCHASER OR HIS/HER NOMINEES WHENEVER THE PURCHASER ASK THE VENDOR FIRM HEREBY CONSTITUTE AN D APPOINT THE PURCHASER I.E. SRI KALLAM VEERA REDDY S /O KRISHNA REDDY AGED ABOUT 51 YEARS R/O HOUSE NO.73/ B KOLLIPARA VILLAGE KOLLIPARA MANDAL GUNTUR DT AS I TS GENERAL POWER OF ATTORNEY AGENT (HEREINAFTER CALLED AS AGEN T) TO EXECUTE PROPER SALE DEED/DEEDS IN FAVOUR OF THE PUR CHASER OR HIS/HER NOMINEES WHENEVER THE PURCHASER DEMANDS AND TO PRESENT THE SALE DEED/DEEDS EXECUTED ON BEHALF O F THE VENDOR FIRM BY THE ABOVE SAID GENERAL POWER OF ATTO RNEY AGENT BEFORE THE CONCERNED SUB-REGISTRAR AND TO ADM IT EXECUTION TO DELIVER THE POSSESSION OF THE SALE P ROPERTY AND TO SING ON ALL NECESSARY PAPERS WHICHEVER ARE REQUI RED FOR THE COMPLETION OF THIS TRANSACTION. ITA NO3 AND CO 1 OF 2011 KALLAM VEERA REDDY GUNTUR PAGE 7 OF 10 HOWEVER THE SAID AGREEMENT IS SILENT ABOUT THE HAN DING OVER OF THE POSSESSION OF THE IMPUGNED PROPERTY. 8. THE IMPUGNED PROPERTY WAS SOLD THEREAFTER ON 11.10.2006 BY THE ASSESSEE HEREIN FOR A CONSIDERATION OF RS.27.00 LAK HS AND AS STATED EARLIER HE EXECUTED THE RELEVANT CONVEYANCE DEED BOTH IN HI S CAPACITY AS THE GPA HOLDER AND ALSO IN HIS INDIVIDUAL CAPACITY. AS NO TICED BY THE ASSESSING OFFICER THE IMPUGNED PROPERTY WAS SOLD AT THE SAME RATE AT WHICH IT WAS PURCHASED BY THE ASSESSEE AS PER THE SALE AGREEMENT . IT IS PERTINENT TO MENTION HERE THAT THE ASSESSEE WAS NOT OBJECTING TO ACTION OF THE ASSESSING OFFICER IN INVOKING THE PROVISIONS OF SEC.50C OF TH E ACT. HIS MAIN OBJECTION BEFORE THE LEARNED CIT(A) WAS THAT HE CANNOT BE TAK EN AS THE OWNER OF THE IMPUGNED PROPERTY AND HENCE THE CAPITAL GAIN HAS TO BE ASSESSED IN THE HANDS OF THE FIRM ONLY. 9. THUS IN OUR VIEW WE HAVE TO DECIDE FIRST THE QUESTION VIZ. WHETHER THE LEARNED CIT(A) IS JUSTIFIED IN HOLDING THAT THE CAP ITAL GAIN ARISING ON THE SALE OF IMPUGNED PROPERTY IS ASSESSABLE IN THE HANDS OF THE PARTNERSHIP FIRM ONLY AND NOT IN THE HANDS OF THE ASSESSEE HEREIN. THE ONLY DEFENSE TAKEN BY THE ASSESSEE IN THIS REGARD IS THAT HE HAS NOT T AKEN POSSESSION OF THE PROPERTY WHICH IS HARD TO BELIEVE. WE SAY SO FOR THE REASON THAT THE ASSESSEE IS IN MONEY LENDING BUSINESS WHERE MONEY IS THE STOCK IN TRADE AND A PRUDENT BUSINESS MAN WILL ALWAYS TRY TO MULTI PLY HIS MONEY. THE ASSESSEE HEREIN IS CLAIMING THAT HE HAS BLOCKED A H UGE AMOUNT OF RS.27.00 LAKHS AT FREE OF COST IN ORDER TO GET A SIMPLE GEN ERAL POWER OF ATTORNEY. HENCE IT IS HARD TO BELIEVE THAT A PERSON SHALL BE COME A SIMPLE POWER OF ATTORNEY HOLDER BY PAYING THE FULL SALE CONSIDERAT ION OF RS.27.00 LAKHS WITHOUT TAKING POSSESSION OF THE IMPUGNED PROPERTY. THE SAID CLAIM IS BEYOND THE COMPREHENSION OF HUMAN PROBABILITIES. I N THIS REGARD THE LEARNED A.R HEAVILY RELIED UPON THE AVERSION MADE I N THE SALE DEED ITA NO3 AND CO 1 OF 2011 KALLAM VEERA REDDY GUNTUR PAGE 8 OF 10 EXECUTED ON 11.10.2006. HOWEVER IT IS INTERESTIN G TO NOTICE THAT THE SALE DEED WAS EXECUTED BY THE ASSESSEE HIMSELF IN HIS CA PACITY AS GPA HOLDER AND ALSO IN HIS INDIVIDUAL CAPACITY. THOUGH THE A CTION OF THE GPA IS CONSIDERED AS THE ACTION OF THE PRINCIPAL IN THE P ECULIAR CIRCUMSTANCES OF THE CASE IT CANNOT BE SAID THAT THE SAID PARTNERSH IP FIRM I.E. THE ORIGINAL OWNER OF THE IMPUGNED PROPERTY VIZ. M/S SHAH ESWAR LAL VADILAL WAS AWARE OF THE AVERSIONS MADE IN THE SALE DEED WITH REGARD TO THE POSSESSION. THE ASSESSEE ALSO COULD NOT PRODUCE ANY OTHER EVIDE NCE IN SUPPORT OF HIS CONTENTIONS THAT HE DID NOT TAKE POSSESSION OF THE IMPUGNED PROPERTY. 10. DURING THE COURSE OF HEARING THE LEARNED A .R WAS SPECIFICALLY ASKED TO SUBMIT THE DETAILS OF RETURNS OF INCOME OF THE A BOVE SAID PARTNERSHIP FIRM OR SUCH OTHER EVIDENCES TO SHOW THAT THE SAID PARTN ERSHIP FIRM HAS FULLY DISCLOSED THE IMPUGNED SALE THAT TOOK PLACE ON 11.1 0.2006. HOWEVER THE LEARNED A.R EXPRESSED HIS INABILITY TO FURNISH SUCH DETAILS EXCEPT PLACING HEAVY RELIANCE ON THE DIRECTION GIVEN BY LEARNED CI T(A) TO THE ASSESSING OFFICER IN THIS REGARD. 11. FROM THE COPIES OF RETURNS OF INCOME FILED B Y THE ASSESSEE IT IS NOTICED THAT THE ASSESSEE HAS SHOWN THE SALE CONSID ERATION OF THE IMPUGNED PROPERTY AT RS.29 75 850/- AND ALSO COMPUTED THE SH ORT TERM CAPITAL GAIN AT RS.14 150/-. IT IS ALSO PERTINENT TO NOTE THAT THE ASSESSEE HAS ONLY OBJECTED TO THE PROPOSAL OF THE ASSESSING OFFICER TO ADOPT T HE VALUE OF SALE CONSIDERATION AS THE VALUE ASSESSED BY THE STAMP VA LUATION AUTHORITY I.E. HE DID NOT RAISE ANY OBJECTION ABOUT THE OWNERSHIP OF THE PROPERTY. 12. ACCORDINGLY CONSIDERING THE FACTS AND CIRCU MSTANCES SURROUNDING THE CASE WE HOLD THAT THE ASSESSEE HAS TAKEN THE POSSE SSION OF THE IMPUGNED PROPERTY AT THE TIME OF MAKING PAYMENT AS PER THE S ALE AGREEMENT. HENCE WE ARE OF THE VIEW THAT THE ASSESSEE HEREIN HAS BEC OME THE OWNER OF THE ITA NO3 AND CO 1 OF 2011 KALLAM VEERA REDDY GUNTUR PAGE 9 OF 10 PROPERTY BY VIRTUE OF THE PROVISIONS OF SEC.53A OF THE TRANSFER OF PROPERTY ACT AND THE CAPITAL GAIN ON THE SALE OF IMPUGNED PR OPERTY IS ASSESSABLE IN HIS HAND ONLY. 13. IN THE CROSS OBJECTION THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS. (I) THE LEARNED CIT (A) ERRED IN ESTIMATING THE GAIN IN THE HANDS OF THE RESPONDENT AT RS.2 70 000/- AS AGAINST SHORT-TERM CAPITAL LOSS OF RS.14 150/- COMPUTED BY THE RESPONDENT. (II) THE LEARNED CIT(A) OUGHT TO HAVE HELD THAT THE RESPONDENT ERRED IN COMPUTING THE LOSS UNDER THE HE AD CAPITAL GAINS AND OUGHT TO HAVE RECOMPUTED THE LOSS UNDER THE HEAD PROFITS & GAINS OF BUSINESS. (III) THE LEARNED CIT (A) OUGHT TO HAVE HELD THAT THE PROVISIONS OF S.50C ARE NOT APPLICABLE FOR COMPUTAT ION UNDER THE HEAD PROFITS & GAINS OF BUSINESS OR PROFESSION. (IV) ANY OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF APPEAL HEARING. THE LEARNED A.R SUBMITTED THAT THE ASSESSEE HAS PUR CHASED MANY PROPERTIES AND HENCE THE IMPUGNED TRANSACTIONS OF P URCHASE AND SALE ARE TO BE TAKEN AS HIS BUSINESS TRANSACTIONS. WE DO NOT F IND ANY MERIT IN THE SAID CONTENTIONS OF THE ASSESSEE. IT IS WELL SETTLED TH AT THE INTENTION OF THE ASSESSEE AT THE TIME OF PURCHASING A PARTICULAR ASS ET DETERMINES THE NATURE OF TRANSACTION. THE ASSESSEE HIMSELF HAS COMPUTED T HE CAPITAL GAINS IN HIS RETURN OF INCOME. HENCE HIS INTENTIONS ARE CLEAR T HAT HE WAS MAKING ONLY INVESTMENT IN THE PROPERTIES AND HE DID NOT CONSIDE R THEM AS HIS BUSINESS ASSETS. ACCORDINGLY WE DISMISS BOTH THE RELEVANT G ROUNDS IN THE CROSS OBJECTION FILED BY THE ASSESSEE. THE ASSESSEE IS A LSO AGGRIEVED BY INCOME ITA NO3 AND CO 1 OF 2011 KALLAM VEERA REDDY GUNTUR PAGE 10 OF 10 OF RS.2 70 000/- ESTIMATED BY THE LEARNED CIT(A). THE SAID GROUND DOES NOT SURVIVE IN VIEW OF OUR DECISION IN THE APPEAL F ILED BY THE REVENUE. 14. IN VIEW OF THE FOREGOING DISCUSSIONS WE SET ASIDE THE ORDER OF LEARNED CIT(A) AND RESTORE THAT OF THE ASSESSING OF FICER. 15. IN THE RESULT THE APPEAL OF THE REVENUE IS ALL OWED AND THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 14.7.2011. SD/- SD/- (SUNIL KUMAR YADAV) (B R BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM DATE: 14 TH JULY 2011. COPY TO 1 THE ITO WARD-2 TENALI 2 SRI KALLAM VEERA REDDY S/O KRISHNA REDDY. H.NO.1 6-74 POTHURAJU DONKA KOLLIPARA KOLLIPARA MANDAL GUNTUR 3 4. THE CIT GUNTUR THE CIT(A) GUNTUR 5 THE DR ITAT VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM