ITO, Ward-7(2), Hyderabad, Hyderabad v. Konijeti Ashok Kumar, Hyderabad, Hyderabad

ITA 173/HYD/2017 | 2008-2009
Pronouncement Date: 27-05-2021 | Result: Dismissed

Appeal Details

RSA Number 17322514 RSA 2017
Assessee PAN AHBPK1507C
Bench Hyderabad
Appeal Number ITA 173/HYD/2017
Duration Of Justice 4 year(s) 3 month(s) 23 day(s)
Appellant ITO, Ward-7(2), Hyderabad, Hyderabad
Respondent Konijeti Ashok Kumar, Hyderabad, Hyderabad
Appeal Type Income Tax Appeal
Pronouncement Date 27-05-2021
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB-A
Tribunal Order Date 27-05-2021
Date Of Final Hearing 27-04-2021
Next Hearing Date 27-04-2021
Last Hearing Date 05-11-2018
First Hearing Date 13-10-2020
Assessment Year 2008-2009
Appeal Filed On 03-02-2017
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH HYDERABAD. BEFORE SHRI S.S. GODARA JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU ACCOUNTANT MEMBER (THROUGH VIRTUAL HEARING) ITA NO. & ASST. YEAR APPELLANT RESPONDENT 173/HYD/2017 2008 - 09 INCOME TAX OFFICER WARD 7(2) HYDERABAD. SHRI KONIJETI ASHOK KUMAR HYDERABAD. PAN AHBPK 1507C 1157/HYD/2017 2008 - 09 - DO - SHRI KONIJETI PAVAN KUMAR HYDERABAD. PAN AHBPK 1509N 1158/HYD/2017 2008 - 09 - DO - SMT. KONIJETI USHA RANI HYDERABAD. \ PAN AHBPK 1510H APPELLANT BY : SHRI R. DIPAK (D.R.) RESPONDENT BY : SHRI LAXMINIWAS SHARMA C.A. DATE OF HEARING : 28.04 .2021. DATE OF PRONOUNCEMENT : 27 .05. 2021. O R D E R PER LAXMI PRASAD SAHU A .M. : THESE THREE APPEALS ARE FILED BY THE REVENUE AGAINST THE ORDER S OF COMMISSIONER OF INCOME TAX (APPEALS) - 3 HYDERABAD DT.4.11.2016 AND 4.4.2017 RESPECTIVELY FOR THE ASSESSMENT YEAR 2008 - 09. 2 ITA NO S.173 1157 & 1158 /HYD/201 7 2. THE IDENTICAL GROUNDS OF APPEAL RAISED BY THE REVENUE ARE AS UNDER : ITA NO.173 /HYD/2017 1. THE LD. CIT(A) ERRED BOTH IN LAW AND ON FACTS OF THE CASE. 2. THE LD. CIT(A) OUGHT TO HAVE CONFIRMED THE SRO VALUE ADOPTED BY THE AO FOR THE PURPOSE OF WORKING OUT THE CAPITAL GAINS SINCE (I ) THE BUYERS ARE ENJOYING THE UNENCUMBERED RIGHT OVER THE PROPERTY AND (II) THE ASSESSEE CONSTRUCTED FUNCTION HALLS ON THE LAND CLAIMED TO BE UNDER THE ULC ACT AND SUPERSTRUCTURES ON THE BALANCE ADJACENT AND SOLD LATER. 3. THE LD. CIT(A) OUGHT TO HAVE TAK EN THE FACT IN COGNIZANCE THAT THE PROPERTY REMAINED AT SECTION 10(1) STAGE OF THE ULC ACT AND THAT THE LAND HAS NOT GOT VESTED WITH THE GOVERNMENT IN THE ABSENCE OF AN ORDER PASSED UNDER SECTION 10(3) OF THE ULC ACT. 4. THE LD. CIT(A) FAILED TO APPRECI ATE THAT IF THE LAND WAS REALLY UNDER THE ULC ACT THE ASSESSEE AS SELLER COULD NOT HAVE 3 ITA NO S.173 1157 & 1158 /HYD/201 7 SOLD THE LAND AND THE BUYER ALSO COULD NOT HAVE BOUGHT THE LAND FROM THE ASSESSEE. 5. THE LD. CIT(A) OUGHT TO HAVE REMANDED THE MATTER FOR VERIFICATION OF ADDITIONAL EVIDENCES/SUBMISSIONS MADE BY THE ASSESSEE REGARDING STRIKING OFF OF SURVEY NUMBERS OF THE LAND IN ALL DOCUMENTS AS THE SAME COULD HAVE BEEN VERIFIED WITH THE BUYER. 6. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF HEARING. FROM THE ABOVE GROUN DS OF APPEAL IT IS CLEAR THAT THE ISSUE INVOLVED IN ALL THE APPEALS ARE SIMILAR IN NATURE THEREFORE FOR THE SAKE OF CONVENIENCE AND BREVITY WE DECIDE TO TAKE UP ITA NO.173/HYD/2017 AND THE DECISION OF THIS APPEAL SHALL APPLY MUTATIS MUTANDIS TO OTHER TWO APPEALS. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008 - 09 ON 31.03.2009 DECLARING INCOME OF RS.20 13 750. LATER ON THE INVESTIGATION WING OF INCOME TAX DEPARTMENT THAT THE ASSESSEE ALO NG WITH THREE OTHER FAMILY MEMBERS HAVE SOLD 4 ITA NO S.173 1157 & 1158 /HYD/201 7 HOUSE PROPERTY DURING THE PERIOD FROM 26.11.2007 TO 15.12.2007 AND IT WAS OBSERVED THAT THERE WAS A HUGE DIFFERENCE BETWEEN SALE VALUE AND ITS SUB - REGISTRAR OFFICE VALUE (FOR STAMP DUTY PURPOSE). IT WAS ALSO NO TICED THAT SECTION 50 C IS APPLIED THEN THERE WILL BE OMISSION ON THE PART OF ASSESSEE TO AVAIL LONG TERM CAPITAL GAIN (LTCG). ACCORDINGLY A NOTICE U/S. 148 WAS ISSUED AND SERVED ON THE ASSESSEE ON 7.10.2014. IN RESPONSE TO THE NOTICE ISSUED BY THE I.T. DEPARTMENT U/S. 148 OF THE ACT THE ASSESSEE FILED A LETTER DT.4.11.2014 STATING THAT THE RETURN FILED U/S. 139 OF THE ACT MAY BE TREATED AS RETURN FILED IN RESPONSE TO THE NOTICE. SUBSEQUENTLY OTHER STATUTORY NOTICES WERE ISSUED TO THE ASSESSEES. THE ASSESSEE FILED VARIOUS DOCUMENTS RELATING TO THE URBAN LAND CEILING ACT (ULCA) AND STATED THAT THE ULC ACT IS NOT IN FORCE IN RESPECT OF THE LAND UNDER CONSIDERATION THEREFORE SECTION 50C OF THE ACT IS NOT APPLICABLE. THE AR OF THE ASSESSEE ALSO REQUEST ED TO THE ASSESSING OFFICER THAT THE MATTER 5 ITA NO S.173 1157 & 1158 /HYD/201 7 MAY KINDLY BE REFERRED TO THE DEPARTMENT VALUATION OFFICER (DVO) BUT THE ASSESSING OFFICER DENIED BY HOLDING AS UNDER : THE ASSESSEE REQUESTED TO REFER THE VALUATION TO THE VALUATION OFFICER WHICH IS REJECTED FOR THE REASON THAT WHEN THE PLEA OF URBAN LAND CEILING ITSELF IS REJECTED IT WOULD NOT BE CORRECT TO REFER THE MATTER TO DVO. MOREOVER THE VALUATION IS NOT FOR ANY APPARENT REASON I.E. LOCATION OF THE PROPERTY DISTANCE FORM THE MAIN ROAD SURROUNDINGS AND UNEVEN/BARREN LAND ETC. BUT ONLY A PRETEXT WHICH DID NOT PREVENT ANY ACTIVITY CARRIED ON IN THE LAND. THE ASSESSING OFFICER HAS ALSO EXAMINED THE DETAILS AS FILED BY T HE ASSESSEE AND ACCORDINGLY HE COMPUTED THE CAPITAL GAINS. THE PROCEEDINGS ALSO MADE IN RESPECT OF OTHER TWO ASSESSEES I.E. SHRI K. PAVAN KUMAR AND SMT. K. USHA RANI IN THE RATIO OF 50:50. FEELING AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(APPEALS) AND CIT(APPEALS) OBSERVED AFTER EXAMINING THE DETAILS FILED BY THE ASSESSEE HE ALLOWED THE APPEAL OF THE ASSESSEE AND IN RESPECT OF PROTECTIVE ASSESSME NTS 6 ITA NO S.173 1157 & 1158 /HYD/201 7 ALSO. FEELING AGGRIEVED BY THE ORDER OF THE CIT(APPEALS) THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE CIT(APPEALS) HAS WRONGLY CONSIDERED THE ULC ACT WHICH HAS BEEN RE PEALED BY THE STATE LEGISLATURE VIDE RESOLUTION DT.27.03.200 8 AND THE ASSESSEE HAS UNENCUMBERED RIGHT ON THE PROPERTY AND HAS CONSTRUCTED FUNCTION HALL ON THE LAND AND LATER ON SOLD THE PROPERTY AND HE ALSO STRONGLY OBJECTED THAT THE OTHER ADDITIONAL EVIDENCES WERE SUBMITTED BUT THE CIT(APPEALS) DID NOT GIVE ANY OPPORTUNITY TO THE ASSESSING OFFICER BEFORE ACCEPTING THE ADDITIONAL EVIDENCES. THEREFORE HE REQUESTED THE ISSUE IN THIS GROUND BE RESTORED TO ASSESSING OFFICER FOR EXAMINATION AFRESH. 5. ON THE O THER HAND THE LD. AR RELIED ON THE ORDER OF THE CIT(APPEALS) AND SUBMITTED THAT I F ULC ACT IS ADMISSIBLE IN THE CASE ON HAND THEN SECTION 50C CANNOT BE APPLIED. HE FURTHER SUBMITTED THAT THE ASSESSEE HAD 7 ITA NO S.173 1157 & 1158 /HYD/201 7 REQUESTED THE ASSESSING OFFICER TO REFER THE MATT ER TO THE DVO BUT THE ASSESSING OFFICER DENIED. IN ADDITION TO THE ABOVE HE HAS FILED WRITTEN SYNOPSIS AS UNDER : 8 ITA NO S.173 1157 & 1158 /HYD/201 7 6. AFTER HEARING BOTH THE SIDES AND PERUSAL OF THE RECORD AVAILABLE WE OBSERVE THAT THE CIT(APPEALS) HAS DECIDE D THE ISSU E IN FAVOUR OF THE ASSESSEE BY HOLDING AS UNDER : 6(B) ALL THE SURVEY NUMBERS TOTALING TO 5.35 ACRES WERE SUBJECT MATTER OF ULCA (URBAN LAND CEILING ACT.) 9 ITA NO S.173 1157 & 1158 /HYD/201 7 THEREFORE THE APPELLANT FILED A SUIT BEFORE HONBLE HIGH COURT OF ANDHRA PRADESH IN 2002 AGAINST GOVERNMENT OF ANDHRA PRADESH; COMMISSIONER OF LAND REVENUE AP; SPECIAL OFFICER AND COMPETENT AUTHORITY ULC; MRO ASIF NAGAR AND DISTRICT COLLECTOR HYDERABAD. 10 ITA NO S.173 1157 & 1158 /HYD/201 7 THEREFORE AS THE PROPERTY WAS COVERED BY ULC ACT SEC. 50C CANNOT BE INVOKED AND SR O VALUE CANNOT BE TAKEN AS THE SALE CONSIDERATION. IN RESULT 1 ST 2 ND 3 RD 4 TH AND 5 TH GROUNDS OF APPEALS ARE TREATED AS ALLOWED. FROM THE ABOVE IT IS CLEAR THAT THE CIT(APPEALS) HAS EXAMINED THE ISSUE ON THE BASIS OF DOCUMENTS AVAILABLE BEFORE HIM AND HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY STATING THAT THE LAND WAS UNDER THE ULC ACT AND IN SUCH SITUATION THE SECTION 50C OF THE ACT CANNOT BE APPLIED. WE A LSO GONE THROUGH THE ORDER OF THE ASSESSING OFFICER AND SUBMISSIONS MADE BY THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE WE NOTICE THAT THE SALE DOCUMENTS WERE EXECUTED AS UNDER : 11 ITA NO S.173 1157 & 1158 /HYD/201 7 WE FURTHER NOTICE THAT ON THE ABOVE DATE OF SALE THE LAND WAS UNDER THE ULC ACT AND THE STATE LEGISLATURE REPEALED ON 27.3.2008 AND THEREAFTER DIVISION OF HONBLE JURISDICTIONAL HIGH COURT THE STATE GOVERNMENT ISSUED A MEMO ON 11.7.2012 DECLARING THAT THE PROPERTY DOES NOT ATTRACT THE PROVISIONS OF ULC ACT AND THE REAFTER THE TAHSILDAR VIDE LETTER DT.24.5.2014 ALLOWED THE CONSTRUCTION ON THE LAND. WE DO NOT FIND ANY SUBSTANCE IN THE ARGUMENTS ADVANCED BY THE LD. DR AND THERE IS NO INFIRMITY IN THE ORDER OF CIT(APPEALS). THEREFORE WE DISMISS THE APPEAL OF THE REVEN UE. 7. FURTHER THE ASSESSING OFFICER HAS MADE PROTECTIVE ASSESSMENTS IN RESPECT OF KONIJETI PAVAN KUMAR (ITA NO.1157/HYD/2017) AND SMT. USHA RANI (ITA 12 ITA NO S.173 1157 & 1158 /HYD/201 7 NO.1158/HYD/2017); THE ISSUE IN THE SAID PROPERTY HAS BEEN DECIDED (SUPRA) . SINCE WE HA VE DECIDED THE APPEAL OF REVENUE ON SIMILAR ISSUE IN RESPECT OF SHRI KONIJETI ASHOK KUMAR (ITA NO.173/HYD/2017) THEREFORE THE DECISION OF ITA 173/HYD/2017 SHALL APPLY MUTATIS MUTANDIS IN THE CASE OF ITA NOS.1157/HYD/2017 & 1158/HYD/2017 ALSO. THE CIT(APPEALS) IN RESPECT OF PROTECTIVE ASSESSMENTS ARE ALSO DISMISSED. 8. IN THE RESULT ALL THE THREE APPEALS OF REVENUE ARE DISMISSED. A COPY OF COMMON ORDER PASSED SHOULD BE KEPT IN RESPECTIVE FILES. ORDER PRONOUNCED IN THE OPEN COURT ON 27TH MAY 2021. SD/ - SD/ - ( S.S. GODARA ) ( LAXMI PRASAD SAHU ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD DT. 27 .05 .2021. * REDDY GP 13 ITA NO S.173 1157 & 1158 /HYD/201 7 COPY TO : 1. I) SHRI KONIJETI ASHOK KUMAR H.NO.13 - 6 - 447 KONIJETI ENCLAVE GUDIMALKAPUR HYDERABAD. II) SHRI KONIJETI PAVAN KUMAR KONIJETI ENCLAVE HYDERABAD. III) SMT. USHA RANI K KONIJETI ENCLAVE HYDERABAD. 2. PR. CIT - 3 HYDERABAD. 3. C I T (A) - 3 HYDERABAD. 4 . DR ITAT HYDERABAD. 5 . GUARD FILE. BY ORDER SR. PVT. SECRETARY ITAT HYDERABAD.