Smt. Maniza Jumabhoy, Hyderabad v. ACIT, Circle 6(1), Hyderabad

ITA 655/HYD/2014 | 2008-2009
Pronouncement Date: 17-11-2017 | Result: Allowed

Appeal Details

RSA Number 65522514 RSA 2014
Assessee PAN AHLPJ3369F
Bench Hyderabad
Appeal Number ITA 655/HYD/2014
Duration Of Justice 3 year(s) 7 month(s) 7 day(s)
Appellant Smt. Maniza Jumabhoy, Hyderabad
Respondent ACIT, Circle 6(1), Hyderabad
Appeal Type Income Tax Appeal
Pronouncement Date 17-11-2017
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 17-11-2017
Date Of Final Hearing 11-04-2017
Next Hearing Date 11-04-2017
Assessment Year 2008-2009
Appeal Filed On 09-04-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B HYDERABAD BEFORE SMT. P. MADHAVI DEVI JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH ACCOUNTANT MEMBER I.T.A. NO. 655/HYD/2014 ASSESSMENT YEAR: 2008-09 SMT. MANIZA JUMABHOY HYDERABAD [PAN: AHLPJ3369F] VS ASST. COMMISSIONER OF INCOME TAX CIRCLE-6(1) HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI C.S. SUBRAHMANYAM & SHRI V. SIVA KUMAR ARS FOR REVENUE : SHRI L. RAMJI RAO DR DATE OF HEARING : 25-10-2017 DATE OF PRONOUNCEMENT : 17-11-2017 O R D E R PER B. RAMAKOTAIAH A.M. : THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS)-IV HYDERABAD DATED 25-10-2012. THE APPEAL WAS ORIGINALLY DISPOSED-OFF FOR NON-APPEARANCE VIDE THE ORDER OF ITAT DT. 5 TH AUGUST 2014 AND LATER IT WAS RECALLED BY THE ORDER DATED 18-02-2015 A S ASSESSEE PREFERRED AN MA. 2. THE APPEAL WAS FILED WITH A DELAY OF 430 DAYS. ASSESSEE HAS FILED AN AFFIDAVIT EXPLAINING THE REASONS FOR DEL AY. IT WAS SUBMITTED THAT ASSESSEE IS STAYING IN SINGAPORE AND HAS SIGNED AS I.T.A. NO. 655/HYD/2014 :- 2 - : A CONFIRMING PARTY IN A LAND TRANSACTION ENTERED BY HE R BROTHER SHRI KARIM NAWAZ ALLADIN AND THE DOCUMENTS WERE SENT BY COURIER TO HER. WHEN SHE VISITED IN THE YEAR 2008-09 HER CHAR TERED ACCOUNTANT HAS ASKED HER TO FILE THE RETURN OF INCOME AN D SUBSEQUENTLY SHE WAS NOT AWARE ABOUT ANY OF THE PROCEE DINGS. IT WAS FURTHER INFORMED THAT THE ORDER WAS NOT SERVED ON H ER AND SHE CAME TO KNOW WHEN HER BANK ACCOUNT IN RBS BANK WAS ATTA CHED BY THE DEPARTMENT IN FEBRUARY 2014. AFTER THE SAID EV ENT SHE GOT IN TOUCH WITH HER RELATIVES AND OBTAINED THE APPELLATE ORDER AND ON THE ADVICE OF THE CHARTERED ACCOUNTANT ARRANGED TO FILE THE APPEAL ON 09-04-2014. SHE HAS GIVEN LIST OF HER VISITS TO I NDIA IN THE AFFIDAVIT AND WHY SHE COULD NOT ATTEND TO THE MATTER IMM EDIATELY. CONSIDERING THE AFFIDAVIT FILED AND THE OBJECTIONS RAIS ED BY THE DR WE ARE SATISFIED THAT ASSESSEE WAS PREVENTED BY A REAS ONABLE CAUSE IN PREFERRING THE APPEAL AS SHE WAS NOT AVAILABLE IN INDIA AND HENCE THE APPEAL IS ADMITTED CONDONING THE DELAY. 3. IN THE COURSE OF PRESENT PROCEEDINGS A DOUBT HAS ARISEN WHETHER THE APPEAL WAS SIGNED BY HER OR A FAC SIMILE SIGNATURE WAS AFFIXED ON THE FORMS? IT WAS CLARIFIED THAT ASSESSEE DID INDEED SIGNED THE FORMS AND FURTHER A FRESH FORM -36 WAS ALSO FILED ON RECORD. 4. BRIEFLY STATED ASSESSEE IS AN INDIVIDUAL AND AFT ER ISSUANCE OF NOTICE U/S. 148 OF THE ACT BY THE DEPARTMENT SHE FILED RETURN OF INCOME ON 11-11-2011 FOR THE AY. 2008-09 D ECLARING TOTAL INCOME OF RS. 29 644/-. THE PROCEEDINGS WERE IN ITIATED AS THERE WAS A SALE OF IMMOVEABLE PROPERTY DURING THE PR EVIOUS YEAR RELEVANT TO AY. 2008-09 PROPERTY OF 28.08 KUNTAS WHI CH WAS SOLD I.T.A. NO. 655/HYD/2014 :- 3 - : TO M/S. SUNRISE BUILDERS AND DEVELOPERS BY ASSESSEE HER BROTHER SRI KARIM NAWAZ ALLADIN AND ALSO SMT. FARIDA ALLADIN . AS AGREEMENT OF SALE CUM GENERAL POWER OF ATTORNEY REGI STERED WITH A SUB-REGISTRAR INDICATED THAT ASSESSEE IS ALSO A VENDOR PROCEEDINGS U/S. 147 WERE INITIATED FOR BRINGING IT TO TAX THE CAP ITAL GAINS IN THE SAID TRANSACTION. DURING THE COURSE OF ASSESSMENT PRO CEEDINGS ASSESSEE SUBMITTED THAT SHE HAS SIGNED ONLY AS A CONSEN TING PARTY AT THE INSTANCE OF BUYER AND ENTIRE CONSIDERATION WAS RE CEIVED BY HER BROTHER SHRI KARIM NAWAZ ALLADIN. AO HOWEVER DID NOT AGREE AND RELIED ON THE AGREEMENT OF SALE CUM GENERAL POWE R OF ATTORNEY (TREATING IT AS SALE DEED) TO HOLD THAT ASSESS EE WAS STATED TO BE OWNER OF 1/3 RD OF THE PROPERTY AND ACCORDINGLY INVOKING THE PROVISIONS OF SECTION 50C DETERMINED THE CAPITAL GAIN S AT RS. 1 31 53 067/- IN THE HANDS OF ASSESSEE BEING 1/3 RD OF THE CAPITAL GAINS IN THE TRANSACTION. 5. BEFORE THE LD.CIT(A) ASSESSEE FILED AN AFFIDAVI T FROM SHRI KARIM NAWAZ ALLADIN OWNING UP THE TOTAL TRANSACTIO N AND CONFIRMING THAT ASSESSEE DID NOT RECEIVE ANY PORTION O F THE SALE CONSIDERATION. IT WAS ALSO INFORMED THAT THE SUBJECT PRO PERTY WAS MATTER OF DISPUTE IN SUIT IN O.S. NO. 844 OF 2007 AND PENDING THAT DISPUTE HER BROTHER SHRI KARIM NAWAZ ALLADIN SOLD THE PROPERTY TO M/S. SUNRISE BUILDERS & DEVELOPERS FOR A CONSIDERATION OF RS. 84 58 000/- AND THE AGREEMENT OF SALE INCLUDED HER NAME AS A VENDOR AT THE INSTANCE OF BUYER TO AVOID FURTHER LEGAL DISPUTES FROM THE FAMILY. SHE ALSO AFFIRMED THAT SHE DID NOT RECEIVE ANY CONSIDERATION NOR CLAIMED ANY TITLE TO THE PROPERTY NOR SHE HAS ANY TITLE AGAINST HER BROTHER. LD.CIT(A) REFERRED TO THE NAR RATIONS IN THE DEED TO CONFIRM THE AOS OPINION THAT ASSESSEE ENTERED TH E I.T.A. NO. 655/HYD/2014 :- 4 - : TRANSACTION AS A VENDOR AND NOT AS A CONFIRMING PARTY AND DISMISSED THE APPEAL. HENCE THE PRESENT APPEAL. 6. ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN HOLDING THE ASSESSEE AS LIABLE FOR CAPITAL GAINS THOUGH SHE HAS NOT RECEIVED ANY SALE CONSIDERATION. 2. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT T O HAVE CONSIDERED THE AFFIDAVIT FILED BY THE SELLER AS WELL AS THE ASSESS EE STATING FACTS OF THE CASE REGARDING THE SALE TRANSACTION. 6.1. ASSESSEE ALSO RAISED FURTHER ADDITIONAL GROUND S AS UNDER: THE LEVY OF CAPITAL GAINS IN THE HANDS OF THE APPE LLANT DOES NOT SURVIVE IN THE LIGHT OF THE FACT THAT THE APPELLANT HAS BEEN A DJUDICATED AS NOT HAVING TRANSFERABLE TITLE TO THE PROPERTY BY DECREE IN O.S . NO. 844 OF 2007 DATED 06-03-2015. 7. LD. COUNSEL REFERRING TO THE FACTS OF THE CASE SUB MITTED THAT ASSESSEE HAS SIGNED ON THE AGREEMENT OF SALE CUM GPA ON A DISPUTED PROPERTY. IT WAS FURTHER SUBMITTED THAT SHE HAS NOT RECEIVED ANY MONEY AND HER BROTHER HAS RECEIVED SOME CONSIDERATION WHICH SHE IS NOT AWARE. REFERRING TO THE AGREEMENT OF SALE IT WAS FURTHER SUBMITTED THAT IT IS ONLY AN AGRE EMENT OF SALE BUT NOT A SALE DEED AS MENTIONED BY THE AO AND CIT(A). IT WAS THE CONTENTION THAT TRANSFER BY WAY OF GENERAL POWER OF ATTOR NEY HAS NOT BEEN APPROVED BY THE HON'BLE SUPREME COURT AND ACC ORDINGLY THE AGREEMENT OF SALE CUM IRREVOCABLE GENERAL POWER O F ATTORNEY HAS NO LEGAL SANCTITY. FURTHER IT WAS SUBMITTED THAT TH E PROPERTY WAS IN DISPUTE IN THE PROCEEDINGS BEFORE THE 1 ST ADDITIONAL COURT RANGA REDDY DISTRICT IN O.S. NO. 844 OF 2007. IT WAS SUBMITTED THAT THIS CASE WAS DECREED BY THE ORDERS OF 3 RD ADDITIONAL DISTRICT I.T.A. NO. 655/HYD/2014 :- 5 - : JUDGE RANGA REDDY DISTRICT ON 06-03-2015 WHEREIN IT WAS HELD THAT THE PARTIES DO NOT HAVE ANY TITLE TO THE IMPUGNED PROPE RTY AS THE PROPERTY WAS IN POSSESSION OF HYDERABAD WATER WO RKS DEPARTMENT FROM 1975 ONWARDS AND ACCORDINGLY THE OWNE RSHIP ITSELF WAS NOT ESTABLISHED. THEREFORE THE CAPITAL GAIN S CANNOT BE BROUGHT TO TAX. IT WAS REQUESTED THAT THE MATTER MAY BE R EMITTED TO THE FILE OF AO AS THE ORDERS OF THE HON'BLE COURT HA VE BEEN ISSUED SUBSEQUENTLY AND THESE ARE NOT BEFORE THE AO. I T WAS FURTHER SUBMITTED THAT ASSESSEE HAS NOT RECEIVED ANY CON SIDERATION AND IF ANY GAINS IS TO BE ASSESSED THE SAME MAY BE ASSESSED IN THE HANDS OF SHRI KARIM NAWAZ ALLADIN. 8. LD.DR HOWEVER RELIED ON THE ORDERS OF THE AUTHO RITIES TO SUBMIT THAT ASSESSEE HAS BEEN SHOWN AS 1/3 RD OWNER OF THE PROPERTY ACCORDINGLY THE CAPITAL GAINS HAVE BEEN AS SESSED IN HER HANDS. 9. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUS ED THE DOCUMENTS PLACED ON RECORD. WHAT THE ASSESSEE HAS ENTERED INTO IS NOT A SALE DEED AS CONSIDERED BY THE AO AND CIT(A) BUT ONLY AN AGREEMENT OF SALE CUM IRREVOCABLE GENERAL P OWER OF ATTORNEY FOR A PROPERTY WHICH THE HON'BLE COURT HAS HELD THAT THESE THREE PARTIES HAVE NO OWNERSHIP RIGHTS OR TITLE AN D NOW PROPERTY WAS/IS IN THE POSSESSION OF HYDERABAD WATER WORKS DEPARTMENT FOR A LONG PERIOD. WITHOUT ESTABLISHING THAT TH E ASSESSEE HAS TITLE TO THE PROPERTY AND ALSO WITHOUT ANY S ALE DEED OF THE TRANSACTION THE AGREEMENT OF SALE REGISTERED MAY NO T GIVE RISE TO TRANSFER OF RIGHTS IN A PARTICULAR PROPERTY PARTICU LARLY IN VIEW OF THE FACT THAT THE HON'BLE SUPREME COURT DID NOT APPROVE THE I.T.A. NO. 655/HYD/2014 :- 6 - : TRANSFER OF PROPERTY BY WAY OF GPA. IN THESE CIRCUMS TANCES THE VERY BASIS FOR LEVY OF CAPITAL GAINS IS IN DOUBT. HO WEVER THE ORDER OF THE COURT HAS BEEN PRONOUNCED SUBSEQUENTLY AND THER E MAY BE FURTHER CONTENTIONS ON THE ISSUE BETWEEN THE PARTIES. TH EREFORE IT IS BETTER IF AO EXAMINES THE ISSUE AFRESH IN THE LIGH T OF THE ORDERS OF THE HON'BLE COURT ON THE ISSUE AND ALSO THE FACT IS THAT IT IS ONLY AN AGREEMENT OF SALE NOT A SALE DEED. 10. APART FROM THE LEGALITY OF THE TRANSACTION ASSESSE E IS ALSO CONTENDING THAT SHE HAS NOT RECEIVED ANY CONSIDER ATION IN THE TRANSACTION EVEN THOUGH HER NAME IS MENTIONED. IT IS ON RECORD THAT HER BROTHER HAS GIVEN AN AFFIDAVIT THAT SHE HAS NOT R ECEIVED THE CONSIDERATION. PARA H IN PAGE 3 OF THE REGISTER ED AGREEMENT OF SALE ALSO INDICATE THAT : WHEREAS DURING THE LIFE TIME OF SMT. BILKIZ ALLADIN ALONG WITH THE VENDORS SHE HAD ENTERED INTO AN AGREEMENT WITH THE VENDEE FOR SALE OF THE SAID PROPERTY. ACCORDINGLY THE VENDEE HAD PAID SUBSTANTIAL AMOUNT TO THEM TOWARDS PART OF SALE CON SIDERATION. HOWEVER INITIALLY DUE TO HER ILL HEALTH AND LATER THE DEATH OF SMT. BILKIZ ALLADIN THE SALE TRANSACTION COULD NOT BE C OMPLETED. AS SEEN FROM THIS THE CONSIDERATION WAS ALSO STATED TO HAVE BEEN RECEIVED BY SMT. BILKIZ ALLADIN. HOW MUCH OF THE MON EY HAS BEEN RECEIVED BY SMT BILKIZ ALLADIN OR/ AND ASSESSEES BR OTHER AND WHETHER ASSESSEE HAS RECEIVED ANY CONSIDERATION IN TH E TRANSACTION HAS NOT BEEN EXAMINED BY THE AO AT ALL. JUST BECAUSE H ER NAME WAS MENTIONED AS A VENDOR 1/3 RD OF THE CAPITAL GAINS HAVE BEEN BROUGHT TO TAX IN HER HANDS WITHOUT EXAMINING WHETHER SHE HAD ANY TITLE TO THE PROPERTY AND WHETHER SHE HAD RECEIVED ANY CONSIDERATION. I.T.A. NO. 655/HYD/2014 :- 7 - : 10.1. NOW THAT THE TITLE ITSELF IS DISPUTED WE ARE OF THE OPINION THAT THE ORDERS PASSED BY THE AO AND CIT(A) ARE TO BE SET ASIDE AND THE ENTIRE MATTER IS TO BE RESTORED TO THE FILE OF AO TO EXAMINE AFRESH AND DETERMINE WHETHER ASSESSEE HAS A NY TITLE TO THE PROPERTY AND WHETHER SHE HAS RECEIVED ANY CONSIDE RATION. AO IS FREE TO EXAMINE ALL THE ASPECTS AND DETERMINE IT AF RESH ON THE FACTS OF THE CASE AND AS PER THE PROVISIONS OF LAW. W ITH THESE DIRECTIONS THE ORDERS OF THE AUTHORITIES ARE SET ASIDE AND THE ENTIRE ISSUE IS RESTORED TO THE FILE OF AO FOR FRESH CONSIDER ATION. ASSESSEE SHOULD BE GIVEN DUE OPPORTUNITY TO MAKE THE SUBMISSIONS/PRESENTATION OF FACTS. 11. IN THE RESULT APPEAL OF ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH NOVEMBER 2017 SD/- SD/- (P. MADHAVI DEVI) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEM BER HYDERABAD DATED 17 TH NOVEMBER 2017 TNMM I.T.A. NO. 655/HYD/2014 :- 8 - : COPY TO : 1. SMT. MANIZA JUMABHOY C/O. M. BHASKARA RAO & CO. CHARTERED ACCOUNTANTS 5-D FIFTH FLOOR KAUTILYA 6-3-652 SOMAJIGUDA HYDERABAD. 2. THE ASST. COMMISSIONER OF INCOME TAX CIRCLE-6(1 ) HYDERABAD. 3. CIT (APPEALS)-IV HYDERABAD. 4. THE CIT-III HYDERABAD. 5. D.R. ITAT HYDERABAD. 6. GUARD FILE.