Sri Be Pasha, Hyderabad v. The DCIT, Circle - 6, Hyderabad

ITA 1573/HYD/2010 | 2008-2009
Pronouncement Date: 10-02-2012 | Result: Allowed

Appeal Details

RSA Number 157322514 RSA 2010
Assessee PAN ARMPN9089Q
Bench Hyderabad
Appeal Number ITA 1573/HYD/2010
Duration Of Justice 1 year(s) 1 month(s) 27 day(s)
Appellant Sri Be Pasha, Hyderabad
Respondent The DCIT, Circle - 6, Hyderabad
Appeal Type Income Tax Appeal
Pronouncement Date 10-02-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 10-02-2012
Assessment Year 2008-2009
Appeal Filed On 13-12-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH HYDERABAD BEFORE SHRI CHANDRA POOJARI A.M. & SMT. ASHA VIJAYARAGHAVAN J.M. ITA NO.1572/HYD/2010 ASSESSMENT YEAR 2008-09 MOHD. MOINUDDIN RR DISTRICT (PAN ARMPN 9089Q) VS THE DCIT CIR CLE 6 HYDERABAD APPELLANT RESPONDENT ITA NO.1573/HYD/2010 ASSESSMENT YEAR 2008-09 MS. BE PASHA HYDERABAD (PAN ANYPB 6965A) VS THE DCIT CIRCLE 6 HYDERABAD APPELLANT RESPONDENT ITA NO.1574/HYD/2010 ASSESSMENT YEAR 2008-09 MOHD. QU TUBUDDIN RR DISTRICT (PAN AAEPQ 8510B) VS THE DCIT CIRCLE 6 HYDERABAD APPELLANT RESPONDENT ITA NO.1575/HYD/2010 ASSESSMENT YEAR 2008-09 MOHD. HISMAUDDIN RR DISTRICT (PAN AAXP12136A)) VS THE DCIT CIRCLE 6 HYDERABAD APPELLANT RESPONDENT ITA NO.1580/HYD/2010 ASSESSMENT YEAR 2008-09 MOHD. KHAIRUDDIN LR SRI MOHD. MOINUDDIN RR DISTRICT (PAN AXDPK 2082 L) VS THE DCIT CIRCLE 6 HYDERABAD APPELLANT RESPONDENT ITA NO.1581/HYD/2010 ASSESSMENT YEAR 2008-09 SMT. AFSAR BEGUM RR DISTRICT PAN AOBPB 3271R) VS THE DCIT CIRCLE 6 HYDERABAD APPELLANT RESPONDENT ITA NO.ITA 1572/HYD/2010 & 14 OTHERS SHRI MOHD. MOINUDDIN & OTHERS HYD. 2 ITA NO.1582/HYD/2010 ASSESSMENT YEAR 2008-09 SMT. AKHTAR BEGUM RR DISTRICT (PAN AKIPA 2271R) VS THE DCIT CIRCLE 6 HYDERABAD APPELLANT RESPONDENT ITA NO.1583/HYD/2010 ASSESSMENT YEAR 2008-09 SMT. ISHRAT UNNISA HYDERABAD (PAN ABDPU 1044L) VS THE DCIT CIRCLE 6 HYDERABAD APPELLANT RESPONDENT ITA NO.1586/HYD/2010 ASSESSMENT YEAR 2008-09 MOHD. USUNUDDIN HYDERABAD PAN ABCPU 8632R) VS THE DCIT C IRCLE 6 HYDERABAD APPELLANT RESPONDENT ITA NO.1588/HYD/2010 ASSESSMENT YEAR 2008-09 SMT. BEGUM JANI HYDERABAD (PAN AIVPJ0465D) VS THE DCIT CIRCLE 6 HYDERABAD APPELLANT RESPONDENT ITA NO.1591/HYD/2010 ASSESSMENT YEAR 2008-09 SRI MOHD . GAYASUDDIN HYD. (PAN AMXPG 4266 D) VS THE DCIT CIRCLE 6 HYDERABAD APPELLANT RESPONDENT ITA NO.1592/HYD/2010 ASSESSMENT YEAR 2008-09 SRI ZAINULLABUDDIN HYDERABAD (AAJPZ 5100D) VS THE DCIT CIRCLE 6 HYDERABAD APPELLANT RESPONDENT ITA NO.1464/HYD/2010 ASSESSMENT YEAR 2008-09 THE ACIT CENTRAL CIRCLE 6 HYDERABAD VS SHRI MOHD. QUTUBUDDIN RR DISTRICT (PAN AAEPQ 8510B) APPELLANT RESPONDENT ITA NO.ITA 1572/HYD/2010 & 14 OTHERS SHRI MOHD. MOINUDDIN & OTHERS HYD. 3 ITA NO.1465/HYD/2010 ASSESSMENT YEAR 2008-09 THE ACIT CENTRAL CIRCLE 6 HYDERABAD VS SRI MOHD. GAYAUDDIN RR DISTRICT (PAN AMXPG 4266 D) APPELLANT RESPONDENT ITA NO.1466/HYD/2010 ASSESSMENT YEAR 2008-09 THE ACIT CENTRAL CIRCLE 6 HYDERABAD VS SRI MOHD. ZAINULLAHUDDIN RR DISTRICT (PAN AAJPZ 5100D) APPELLANT RESPONDE NT APPELLANT BY : SHRI K.A. SAI PRASAD RESPONDENT BY : SHRI V. SRINIVAS & SMT. NIVEDITA BISWAS DATE OF HEARING : 14.12.2011 DATE OF PRONOUNCEMENT : ORDER PER ASHA VIJAYARAGHAVAN JM: THERE ARE FIFTEEN APPEALS IN ALL IN THIS BUNCH. OUT OF THEM TWELVE ARE FILED BY DIFFERENT ASSESSEES WHEREAS THE REMAINING THREE ARE FILED BY THE DEPARTMENT. ALL THESE APPEALS RELATE TO THE ASSESSMENT YEAR 2008-09. THEY ARE DIRECT AGAINST SIMILAR BUT SEPAR ATE ORDERS OF THE CIT(A-I HYDERABAD. SINCE COMMON ISSUES ARE INVOLVE D THESE APPEALS ARE BEING DISPOSED OF BY A CONSOLIDATED ORDER FOR THE S AKE OF CONVENIENCE. ASSESSEES APPEALS: 2. THE FIRST ISSUE INVOLVED IN ALL THESE APPEAL S OF THE ASSESSEE RELATES TO DISALLOWANCE OF CLAIM FOR RELIEF UNDER S .54F OF THE ACT. 3. BRIEF FACTS OF THE CASE COMMON IN ALL THESE AP PEALS ARE THAT THE ASSESSEES WHO ARE IN RECEIPT OF CERTAIN CAPITA L GAINS ON SALE OF LANDED PROPERTY HAVE CLAIMED EXEMPTION U/S 54F. THE ASSE SSING OFFICER FOUND THAT THOUGH THE ASSESSEES HAD CLAIMED HOUSE CONSTRU CTION EXPENDITURE ITA NO.ITA 1572/HYD/2010 & 14 OTHERS SHRI MOHD. MOINUDDIN & OTHERS HYD. 4 AND CLAIMED DEDUCTION U/S 54F OF THE ACT THERE WAS NO EVIDENCE FURNISHED TO SUBSTANTIATE THE SAID CLAIMS WITH REGA RD TO HOUSE CONSTRUCTION EXPENDITURE. HE ACCORDINGLY DISALLOWE D THE CLAIMS OF THE ASSESSEE FOR WANT OF SUPPORTING EVIDENCE. 4. BEFORE CIT(A) THE ASSESSEES FILED VALUATION REPORTS AS ADDITIONAL EVIDENCE. THE CIT(A) DID NOT ADMIT THE ADDITIONAL EVIDENCE SINCE ACCORDING TO HIM THE CONDITIONS SPECIFIED UNDER RULE 46A ARE NOT FULFILLED AND THE ASSESSEES WERE NOT PREVENTED BY S UFFICIENT CAUSE FROM PRODUCING THE EVIDENCE IN QUESTION BEFORE THE ASSE SSING OFFICER. RELYING ON THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF USHA GUPTA VS. CIT (296 ITR 287) THE CIT(A) UPHELD THE ACTIO N OF THE ASSESSING OFFICER IN DISALLOWING THE CONSTRUCTION EXPENDITURE OF RS.1 53 15 225 U/S. 54F OF THE ACT. 5. BEFORE US THE LEARNED COUNSEL FOR THE ASSESSEES SUB MITTED THAT THE CIT(A) REFUSED TO ADMIT THE ADDITIONAL EVI DENCE IN THE FORM OF VALUATION REPORT AND THE PHOTOGRAPH OF THE BUILDING CONSTRUCTED AND FINALLY DISALLOWED THE ASSESSEES CLAIM OF EXEMPTIO N U/S. 54F OF THE ACT ON THE GROUND THAT NO EVIDENCE IN SUPPORT OF THE CO NSTRUCTION WAS PRODUCED BEFORE THE ASSESSING OFFICER. IT WAS PRAY ED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE ASSESSING O FFICER FOR FRESH CONSIDERATION ON THE BASIS OF THE ADDITIONAL EVIDEN CE PRODUCED BY THE ASSESSEE. 6. ON THE OTHER HAND THE LEARNED DR FAIRLY AGREE D FOR THE REMITTING THE MATTER TO THE FILE OF THE CIT(A) IN STEAD OF ASSESSING OFFICER TO CONSIDER THE ADDITIONAL EVIDENCE PRODUCED BY THE ASSESSEE BY WAY OF VALUATION REPORT AND PHOTOGRAPH OF THE BUILDING AND TO CONSIDER THE CLAIM OF EXEMPTION U/S. 54F OF THE ACT ACCORDINGLY. ITA NO.ITA 1572/HYD/2010 & 14 OTHERS SHRI MOHD. MOINUDDIN & OTHERS HYD. 5 7. WE HEARD THE PARTIES. AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE IN TOTALITY WE FEEL IT J UST AND PROPER TO RESTORE THE ISSUE TO THE FILE OF THE CIT(A) FOR FRESH CONSI DERATION OF THE CLAIM OF THE ASSESSEES FOR EXEMPTION U/S. 54F ON THE BASIS O F THE ADDITIONAL EVIDENCE FILED BEFORE THE CIT(A). THE CIT(A) SHALL AFFORD REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEES AND ALSO TH E ASSESSING OFFICER IN THE LIGHT OF THE ADDITIONAL EVIDENCE IN QUESTION. THE CIT(A) SHALL EXAMINE ALL THE FACTUAL ASPECTS OF THE MATTER IN EACH CASE FULFILMENT OF REQUISITE CONDITIONS SPECIFIED IN S.54F OF THE ACT AND CONSEQ UENT ENTITLEMENT OF THE ASSESSEES TO THE CLAIMS FOR RELIEF UNDER S.54F AND DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW. WE ARE SUPPORTED IN THIS BEHALF BY THE DECISION OF THE TRIBUNAL IN THE CASES OF SHRI MOHD. SHUJAUDD IN NARSINGHI R.R. DISTRICT AND OTHERS (ITA NO.1576/HYD/2010 AND OTHER S ) FOR ASSESSMENT YEAR 2008-09 WHEREIN THE TRIBUNAL VIDE ITS ORDER DATED 28.2.2011 UNDER SIMILAR CIRCUMSTANCES SET ASIDE THE MATTER T O THE FILE OF THE CIT(A) WITH THE FOLLOWING OBSERVATIONS- 5. ..AFTER CONSIDERING THE FACTS AND CIRCUMSTANCE S OF THE CASE IN TOTALITY WE FEEL IT JUST AND PROPER TO RESTORE TH E ISSUE TO THE FILE OF THE CIT(A) FOR FRESH CONSIDERATION THE CLAIM OF THE ASSESSEE FOR EXEMPTION UNDER SECTION 54F OF THE ACT ON THE BASIS OF THE ADDITIONAL EVIDENCE FILED. THE CIT(A) SHALL AFFORD AN OPPORTUNITY TO THE ASSESSEE AND DECIDE THE ISSUE AFRESH IN THE LIGHT O F THE ADDITIONAL EVIDENCE FILED. THIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS GROUND OF THE ASSESSEES IS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 8. THE NEXT ISSUE INVOLVED IN ALL APPEALS EXCEPT I TA NOS.1572/HYD/2010; 1573/HYD/2010; 1580/HYD/2010 AND 1588/HYD/- 2010 IS WITH REGARD TO DISALLOWANCE OF ADDITIONAL GROUND RAISED BY THE ASSESSEES WITH REGARD TO THE SUM RECEIVED AS ADVANC E. SINCE THE GROUNDS OF THE ASSESSEES ARE IDENTICAL EXCEPT FOR THE AMOU NT OF ADVANCE INVOLVED WE REPRODUCE HEREUNDER THE GROUND TAKEN BY THE ASSE SSEE IN THE CASE OF MOHD. QUTUBUDDIN (ITA NO.1574/HYD/2010)- ITA NO.ITA 1572/HYD/2010 & 14 OTHERS SHRI MOHD. MOINUDDIN & OTHERS HYD. 6 2 (I) THE LEARNED COMMISSIONER OF INCOME-TAX(APPEAL S) IS NOT JUSTIFIED IN DISALLOWING THE FOLLOWING ADDITIONAL GROUN D RAISED BY THE APPELLANT IN REGARD TO THE SUM OF RS. 2 L AKHS RECEIVED AS ADVANCE ON THE GROUND THAT THE ADDITIONAL GROUND DOES NOT EMANATE FROM THE ASSESSMENT ORDER. SINCE THE SUM OF RS.2 LAKHS/- BEING ADVANCE RECEIVED FROM SRI V.RAMACHANDER RAO TO WHOM THE SAME LAND WAS PROPOSED TO BE SOLD EARLIER WAS WRONGLY ADDED TO THE SALE PROCEEDS IN THE COMPUTATION OF CAPITAL GAINS THE LEARNED ASSESSING OFFICER OUGHT TO HAVE DELETED THE SAME FROM THE CONSIDERATION RECEIVED AND DEDUCTED SUCH SUM FROM THE COST OF THE ASSET AS PROVIDED U/S. 51 (EVEN THOUGH THE APPELLANT HIMSELF ADDED/ADMITTED THIS AMOUNT BY INADVERTENCE/IGNORANCE). II) THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS) IS NOT JUSTIFIED IN THE CIRCUMSTANCES OF THE CASE IN CON CLUDING THAT THERE IS NO MERIT IN THE APPELLANTS CLAIM U/S. 51 SINCE THE APPELLANT (I) COULD NOT ESTABLISH THE EXISTENCE OF THE FAILED TRANSACTION (II) DID NOT SHOW THAT THE AMOUNT ALLEGEDLY RECEIVED WAS LYING WITH HIM AS AN ADVANCE AN D (III) NO CAPITAL ACCOUNT OR BALANCE SHEET WAS PRODUCE D IN THIS REGARD. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE CIT(A) HAS R EJECTED THE ADDITIONAL GROUND RAISED BY THE ASSESSEES BEFORE HIM ON ITS MERITS A ND AS SUCH IT IS NOT CORRECT FOR THE ASSESSEES TO SAY THAT THE CIT(A) HAS HELD T HE SAME AS NOT EMANATING FROM THE ASSESSMENT ORDER. WE FURTHER FIND THAT T HE REASONS DISCUSSED BY THE CIT(A) FOR REJECTING THE ADDITIONAL GROUND TAKEN BY THE ASSESSEES IN PARA 07.-0 OF HIS ORDER ON PAGES 4 AND 5 THEREOF IN THE CASE OF MD. QUTBUDDIN (IDENTICAL REASONS GIVEN IN CORESPODNING PARAS IN THE OTHER IM PUGNED ORDERS) WHICH HAVE BEEN SUMMARIZED BY THE ASSESSEES THEMSELVES IN THE LATTER PART OF GROUND OF APPEAL ITSELF TAKEN BY THEM EXTRACTED ABOVE ARE S OUND AND VALID AND WE ARE ITA NO.ITA 1572/HYD/2010 & 14 OTHERS SHRI MOHD. MOINUDDIN & OTHERS HYD. 7 IN AGREEMENT WITH THE SAME. WE ACCORDINGLY UPHOLD THE ORDERS OF THE CIT(A) ON THIS ISSUE AND REJECT THE GROUNDS OF THE ASSESSE E IN THIS BEHALF. 10. NEXT GROUND OF THE ASSESSEES COMMON IN ALL THESE APPEALS EXCEPT ITA NOS.1592 AND 1572/HYD/2010 IS WITH REGAR D TO DISALLOWANCE OF ASSESSEES CLAIMS FOR RELIEF UNDER S.54B OF THE ACT. 11. THE LEARNED AUTHORIZED REPRESENTATIVE FAIRLY CONCEDED THAT THIS ISSUE HAS BEEN DECIDED AGAINST THE ASSESSEE BY THE ORDER OF THE TRIBUNAL IN THE CASES OF SHRI MOHD. SHUJAUDDIN NAR SINGHI R.R. DISTRICT AND OTHERS (ITA NO.1576/HYD/2010 AND OTHERS) FOR AS SESSMENT YEAR 2008-09 WHEREIN THE TRIBUNAL VIDE ITS ORDER DATED 28.2.2011 NOTED ABOVE UNDER SIMILAR CIRCUMSTANCES CONFIRMED THE O RDER OF THE CIT(A) OBSERVING IN E PARA 12 OF THE SAID ORDER AS FOLLOWS - 12. ..........THE ASSESSEE HAS NOT PRODUCED ANY EVIDE NCE BEFORE THE CIT(A) TO ESTABLISH THAT THE ASSESSEE IN FACT E NTERED INTO ANY NEGOTIATIONS FOR TRANSFER OF THE ASSET UNDER CONSIDERA TION AND RECEIVED ADVANCE AND RETAINED THE SAME. THE ASSESSEE FAILED TO SHOW THAT THE AMOUNT ALLEGEDLY RECEIVED WAS LYING WITH HIM AS AN ADVANCE. NO EVIDENCE WAS PRODUCED BEFORE THE CIT(A) OR EVEN BEFORE US. ................CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE WE DO NOT SEE ANY MERIT IN ADMITTING THE ADDITIONA L GROUNDS TAKEN BY THE ASSESSEE. FACTS AND CIRCUMSTANCES IN THE PRESENT CASES BEING IDENTICAL RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE TRIBUNAL WE FI ND NO MERIT IN THE GROUND OF THE ASSESSEES. ACCORDINGLY THIS GROUND O F THE ASSESSEES IN ALL THESE APPEALS IS REJECTED. 12. THE NEXT GROUND OF THE ASSESSEES COMMON IN T HESE APPEALS READS AS FOLLOWS- WITHOUT PREJUDICE TO THE ABOVE GROUNDS THE APPELLANT SU BMITS THE FOLLOWING NEW GROUND FOR THE FIRST TIME BEFORE THE HONBLE INCOM E TAX APPELLATE TRIBUNAL: ITA NO.ITA 1572/HYD/2010 & 14 OTHERS SHRI MOHD. MOINUDDIN & OTHERS HYD. 8 THE RELEVANT ASSET DOES NOT COME WITHIN THE PURVIEW OF THE CAPITAL ASSET AS DEFINED IN SECTION 2(14) AND THEREFORE GAIN ARISING FROM THE SALE OF THIS ASSET I S NOT TAXABLE. ........ 13. ON CAREFUL CONSIDERATION OF THE RIVAL SUBMISS IONS WE FIND THAT THOUGH THE ASSESSEE CLAIMS THAT THIS GROUND IS COVE RED BY THE DECISION OF THE TRIBUNAL IN THE CASE OF SRINIVAS PANDIT (30 SOT 350 ) WE FIND NO JUSTIFICATION TO ENTERTAIN THE SAID ADDITIONAL GROUND AT THIS SECOND APPELLATE STAGE MORE SO SINCE IT WAS NEVER THE CASE OF THE ASSESSEES THAT P ROPERTY SOLD WAS NOT A CAPITAL ASSET WITHIN THE MEANING OF S.2(14) OF TH E ACT AND ON THE CONTRARY THE ASSESSEES THEMSELVES OFFERING CAPITAL GAINS AR ISING ON THE TRANSFER OF THE PROPERTY TO TAX CLAIMING HOWEVER EXEMPTION IN RE SPECT OF THE SAME UNDER S.54F OF THE ACT. FURTHER THE ASSESSEE HAS NOT B ROUGHT ANY EVIDENCE NOR FURNISHED ANY EXPLANATION OR REASON WHY THIS GROUND WAS NOT TAKEN BEFORE THE LOWER AUTHORITIES. WE ACCORDINGLY DECLINE TO ENTERT AIN THE ADDITIONAL GROUNDS SOUGHT TO BE RAISED BY THE ASSESSEES IN THESE APPEA LS. 14. THE NEXT ISSUE THAT ARISES FOR CONSIDERATION ONLY IN APPEAL ITA NO.1581/HYD/2010 IS WITH REGARD TO THE LEGALITY AN D VALIDITY OF THE ACTION OF THE CIT(A) IN NOT ADMITTING THE APPEAL OF THE AS SESSEE ON THE GROUND OF NON-PAYMENT OF ADMITTED TAXES. 15. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS ALREADY PAID THE ADMITTED TAXES AND T HERE IS NO JUSTIFICATION FOR THE CIT(A) FOR NOT ADMITTING THE APPEAL FILED B Y THE ASSESSEE. HE SUBMITTED THAT THE ASSESSEE IN FACT PAID THE ADMITT ED TAXES BY WAY OF ADVANCE TAX WITH THE RETURN ITSELF AND AS SUCH THE CIT(A) WAS NOT JUSTIFIED IN CONCLUDING THAT THERE WAS DEFAULT ON T HE PART OF THE ASSESSEE IN MAKING PAYMENT OF THE TAXES DUE ON THE RETURNED INCOME BY THE TIME OF THE FILING OF THE RETURN. HE ALSO PLACED RELIAN CE ON THE DECISION OF THE ITA NO.ITA 1572/HYD/2010 & 14 OTHERS SHRI MOHD. MOINUDDIN & OTHERS HYD. 9 PUNJAB AND HARYANA HIGH COURT IN THE CASE OF JAGDIS H RAJ CHOUHAN V/S. CIT(109 TAXMAN 291) IN THIS BEHALF. 16. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND STRONGLY SUPPORTED THE ORDER OF THE CIT(A) AND IN A NY EVENT PLEADED THAT THE MATTER MAY BE SET ASIDE TO THE FILE OF THE CIT( A) FOR VERIFYING THE CLAIM OF THE ASSESSEE WITH REGARD TO THE PAYMENT OF ADMITTED TAXES BY THE TIME OF FILING OF THE RETURN ITSELF. 17. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE ORDERS OF THE LOWER AUTHORITIES. IN VIEW OF THE AS SERTION OF THE LEARNED COUNSEL FOR THE ASSESSEES BEFORE US THAT THE ASSESS EE HAS ALREADY PAID THE ADMITTED TAXES BY WAY OF ADVANCE TAXES AND BY T HE TIME OF THE FILING OF THE RETURN ITSELF THE MATTER NEEDS VERIFICATION AT THE END OF THE CIT(A). EVEN IF IT IS FOUND THAT THE ASSESSEE HAS NOT PAID SUCH TAXES BY THE DATE OF FILING OF THE RETURN BUT PAID SOMETIME LATER S AY BY THE TIME OF FILING OF THE APPEAL BEFORE THE CIT(A) OR EVEN BY THE TIME OF PASSING THE ORDER BY THE TRIBUNAL THIS TRIBUNAL HAS BEEN CONSISTENTLY H OLDING THAT THE APPEAL BEFORE THE CIT(A) IS MAINTAINABLE SUBJECT TO CERTAI N CONDITIONS. IN THE RECENT DECISION OF THIS TRIBUNAL DATED 20.1.2012 IN THIS BEHALF IN THE CASE OF M/S. DEMI REALTORS HYDERABAD (ITA NO.334/HYD/20 11) WHEREIN APPEAL WAS NOT ADMITTED ON ACCOUNT OF NON-PAYMENT O F ADMITTED TAXES IT WAS HELD VIDE PARA 8 OF ITS ORDER DATED 20.1.2012 AS FOLLOWS- 8. ....CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE AND THE DECISION OF THE TRIBUNAL IN THE C ASE OF D.S.KARUNAKAR REDDY V/S. DCIT IN ITA NO.402/HYD/2011 F OR THE ASSESSMENT YEAR 2008-08 RELIED UPON BY THE LEARNED COUN SEL FOR THE ASSESSEE BEFORE US WE ARE INCLINED TO SET ASIDE THE MATTER TO THE FILE OF THE CIT(A) TO VERIFY WHETHER AS ON THE DATE OF THIS ORDER THE ASSESSEE PAID THE ADMITTED TAX. IF THE ASS ESSEE IS FOUND TO HAVE PAID THE ADMITTED TAXES AGGREGATING TO RS.77 99 676 THE CIT(A) MAY DISPOSE OF THE APPEAL BEFOR E HIM AFRESH ON THE MERITS OF THE ISSUES RAISED THEREIN AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE IF ANY FOR THE DELAY IN THE FILING OF THE APPEAL. WE MAY NOTE AT THIS JUNCTU RE SHORT-FALL IN ITA NO.ITA 1572/HYD/2010 & 14 OTHERS SHRI MOHD. MOINUDDIN & OTHERS HYD. 10 THE PAYMENT OF ADMITTED TAX IS A CURABLE DEFECT AND TI LL SUCH TIME SUCH DEFECT IS CURED APPEAL IS ONLY DEFECTIVE AND AS SOON AS SUCH DEFECT IS CURED THE APPEAL BECOMES VALID. IN THIS VIE W OF THE MATTER SINCE THE APPEAL FILED BY THE ASSESSEE BEFORE T HE CIT(A) WAS NOT VALID AS ON 3.2.2010 WHEN IT WAS FILED ON ACC OUNT OF DEFECT OF NON-PAYMENT OF ADMITTED TAXES AND IT BECOMES VAL ID ONLY WHEN THE ADMITTED TAXES ON THE RETURNED INCOME ARE PAID. CON SEQUENTLY TILL SUCH TIME THE DEFECT IS NOT CURED THE DELAY IN T HE FILING OF THE APPEAL BY THE ASSESSEE BEFORE THE CIT(A) CONTINUES AND THE ASSESSEE HAS TO EXPLAIN THE SAME FOR SEEKING CONDONA TION OF DELAY BY FILING NECESSARY PETITION IN THAT BEHALF. IN CASE THE ASSESSEE FILES NECESSARY PETITION SEEKING CONDONATION OF DELAY RESULTING ON ACCOUNT OF DELAYED PAYMENT OF ADMITTED TAXES CONSEQUENT LY EXPLAINING THE DELAYED PAYMENT OF ADMITTED TAXES THE CIT( A) MAY CONSIDER THE SAME APPROPRIATELY AND DISPOSE OF THE APPEA L BEFORE HIM AFRESH ON MERITS IN CASE HE FINDS MERIT IN SUCH PETITION OF THE ASSESSEE SEEKING CONDONATION OF DELAY. IN THIS VIEW OF THE MATTER WE SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE CIT(A) FOR PR OPER ADJUDICATION OF THE APPEAL BEFORE HIM AFTER VERIFYING THE CORRECTNESS OF THE CLAIM OF THE ASSESSEE HAVING PAID THE ADMITTED TAXES WITHIN TIM E. EVEN IF IT IS FOUND THAT THE ADMITTED TAXES WERE NOT PAID BY THE TIME O F THE FILING OF THE RETURN BUT SOMETIME LATER BEFORE THIS ORDER OF THE TRIBUNAL HE MAY EXAMINE THE ADMISSIBILITY OF THE APPEAL BEFORE HIM AFTER GIVING THE ASSESSEE DUE OPPORTUNITY TO FILE PETITION FOR CONDO NATION OF DELAY TILL SUCH TIME THE ADMITTED TAXES HAVE BEEN PAID AND MAY PRO CEED TO DISPOSE OF THE APPEAL ON MERITS IF THERE IS REASONABLE CAUSE FOR THE DELAY IN THE PAYMENT OF ADMITTED TAXES. THE CIT(A) IS THUS DIR ECTED TO ADJUDICATE THE APPEAL BEFORE HIM AFRESH EITHER ON MERITS OR OTHERW ISE IN THE LIGHT OF THE ABOVE OBSERVATIONS IN ACCORDANCE WITH LAW AFTER GI VING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. REVENUES APPEALS: 18. GROUNDS OF APPEAL OF THE REVENUE COMMON IN AL L THE THREE APPEALS EXCEPT FOR THE AMOUNTS INVOLVED AS TAKEN F ROM ITA NO.1464/HYD./2010 READ AS FOLLOWS- ITA NO.ITA 1572/HYD/2010 & 14 OTHERS SHRI MOHD. MOINUDDIN & OTHERS HYD. 11 1) THE CIT(A) ERRED ON FACTS AND IN LAW IN DIRECTING TO DELETE THE ADVANCE AMOUNTS RECEIVED FROM SRI RAMACHANDRA RAO(RS.25 50 000/-) BY THE ASSESSEE AND RS.3 12 500 R ECEIVED BY THE FATHER OF THE ASSESSEE. 2) THE CIT(A) OUGHT TO HAVE APPRECIATED THE FACT THAT THE PAYMENTS RECEIVED EARLIER AS ADVANCES ACCRUED AS INCOME DURING TH E YEAR BECAUSE THE LAND TRANSFER TOOK PLACE DURING THE YEAR. 3) THE CIT(A) ERRED ON FACTS IN DISTINGUISHING THE TRANS ACTION OF SALE MADE DURING THE YEAR AND THE LAND TRANSACTION WHICH THE ASSESSEE RECEIVED ADVANCES AS TWO DIFFERENT TRANSACTIONS. 19. WE HEARD THE PARTIES AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. WE FIND THAT THE CIT(A) DELETED THE D ISPUTED ADDITIONS MADE BY THE ASSESSING OFFICER OBSERVING THAT THE AMOUNTS IN QUESTION WERE RECEIVED IN AN EARLIER FINANCIAL YEAR AND FOR A DIF FERENT TRANSACTION THAN THE ONE WITH DLF AND THE SAME CANNOT BE TAXED IN T HE YEAR UNDER CONSIDERATION. NO EVIDENCE TO CONTRADICT THE ABOV E FINDINGS OF THE CIT(A) HAS BEEN BROUGHT ON RECORD BEFORE US BY THE REVENUE . IN THE CIRCUMSTANCES WE UPHOLD THE ORDERS OF THE CIT(A) AND REJECT THE GROUNDS OF THE REVENUE IN THESE APPEALS. 20. IN THE RESULT ALL THE TWELVE APPEALS OF THE A SSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES AND THE THREE APPE ALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10.2.2012 SD/- SD/- (CHANDRA POOJARI) ( (ASHA VIJAYA RAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 10 TH FEBRUARY 2012 ITA NO.ITA 1572/HYD/2010 & 14 OTHERS SHRI MOHD. MOINUDDIN & OTHERS HYD. 12 COPY FORWARDED TO: 1. SHRI MOHD. MOINUDDIN (NARSINGH VILLAGE R.R.DI STRICT) M/S. CH. PARTHASARATHY & CO. 1-1-298/2/B/3 1 ST FLOOR SOWBHAGYA AVENUE ST. NO. 1 ASHOKNAGAR HYDERABAD-500 020. 2. SHRI BE PASHA (NARSINGH VILLAGE R.R.DISTRICT) C/O. M/S. CH. PARTHASARATHY & CO. 1-1-298/2/B/3 1 ST FLOOR SOWBHAGYA AVENUE ST. NO. 1 ASHOKNAGAR HYDERABAD-500 020. 3. SHRI MOHD. QUTUBUDDIN C/O. M/S. CH. PARTHASA RATHY & CO. 1-1-298/2/B/3 1 ST FLOOR SOWBHAGYA AVENUE ST. NO. 1 ASHOKNAGAR HY DERABAD-500 020 4. SHRI MOHD. HISMAUDDIN (NARSINGH VILLAGE RR DIS TRICT) C/O. M/S. CH. PARTHASARATHY & CO. 1-1-298/2/B/3 1 ST FLOOR SOWBHAGYA AVENUE ST. NO. 1 ASHOKNAGAR HYDERABAD-500 020. 5. SHRI MOHD. MOINUDDIN L/R OF LATE SHRI MOHD. KHA URUDDIN(NARSINGH VILLAGE RR DISTRICT) C/O. M/S. CH. PARTHASARATHY & CO. 1- 1-298/2/B/3 1 ST FLOOR SOWBHAGYA AVENUE ST. NO. 1 ASHOKNAGAR HYDERABAD- 500 020. 6. SMT. AFSAR BEGUM (NARSINGH VILLAGE RR DISTRICT) C/O. M/S. CH. PARTHASARATHY & CO. 1-1-298/2/B/3 1 ST FLOOR SOWBHAGYA AVENUE ST. NO. 1 ASHOKNAGAR HYDERABAD-500 020. 7. SMT. AKHTAR BEGUM (NARSINGH VILLAGE RR DISTRICT) C/O. M/S. CH. PARTHASARATHY & CO. 1-1-298/2/B/3 1 ST FLOOR SOWBHAGYA AVENUE ST. NO. 1 ASHOKNAGAR HYDERABAD-500 020. 8. SMT. ISHRAT UNNISA (NARSINGH VILLAGE RR DISTRICT) C/O. M/S. CH. PARTHASARATHY & CO. 1-1-298/2/B/3 1 ST FLOOR SOWBHAGYA AVENUE ST. NO. 1 ASHOKNAGAR HYDERABAD-500 020. 9 SMT. BEGUM JANI (NARSINGH VILLAGE RR DISTRICT) C /O. M/S. CH. PARTHASARATHY & CO. 1-1-298/2/B/3 1 ST FLOOR SOWBHAGYA AVENUE ST. NO. 1 ASHOKNAGAR HYDERABAD-500 020. 10 SHRI MOHD. GAYASUDDIN (NARSINGH VILLAGE RR DISTRIC T) C/O. M/S. CH. PARTHASARATHY & CO. 1-1-298/2/B/3 1 ST FLOOR SOWBHAGYA AVENUE ST. NO. 1 ASHOKNAGAR HYDERABAD-500 020. 11. SHRI ZAINULLABUDDIN (NARSINGH VILLAGE RR DISTRICT ) C/O. M/S. CH. PARTHASARATHY & CO. 1-1-298/2/B/3 1 ST FLOOR SOWBHAGYA AVENUE ST. NO. 1 ASHOKNAGAR HYDERABAD-500 020. 12. SHRI MOHD. USUNUDDIN (NARSINGH VILLAGE RR DIST RICT) C/O. M/S. CH. PARTHASARATHY & CO. 1-1-298/2/B/3 1 ST FLOOR SOWBHAGYA AVENUE ST. NO. 1 ASHOKNAGAR HYDERABAD-500 020. ITA NO.ITA 1572/HYD/2010 & 14 OTHERS SHRI MOHD. MOINUDDIN & OTHERS HYD. 13 13. THE DCIT CENTRAL CIRCLE 6 HYDERABAD. 14. THE CIT(A)-I HYDERABAD. 15. THE CIT (CENTRAL) HYDERABAD. 16. THE DR B BENCH ITAT HYDERABAD NP/B.V.S.