Mr. Mohammed Khan, Hyd, Hyderabad v. ITO, Ward-4(4), Hyderabad

ITA 680/HYD/2011 | 2003-2004
Pronouncement Date: 02-04-2014 | Result: Allowed

Appeal Details

RSA Number 68022514 RSA 2011
Assessee PAN AGBPB4837F
Bench Hyderabad
Appeal Number ITA 680/HYD/2011
Duration Of Justice 2 year(s) 11 month(s) 14 day(s)
Appellant Mr. Mohammed Khan, Hyd, Hyderabad
Respondent ITO, Ward-4(4), Hyderabad
Appeal Type Income Tax Appeal
Pronouncement Date 02-04-2014
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 02-04-2014
Date Of Final Hearing 11-10-2011
Next Hearing Date 11-10-2011
Assessment Year 2003-2004
Appeal Filed On 18-04-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD BEFORE SHRI CHANDRA POOJARI ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY JUDICIAL MEMBER ITA.NO. 678 679 680 & 681/HYD/2011 ASSESSMENT YEARS 2001-02 2002-03 2003-04 & 2004-0 5 MR. MOHD. AHMED KHAN L/R OF LATE MEHERUNNISA BEGUM HYDERABAD PAN AGBPB4837F VS. ITO WARD 4(4) HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : MR. S. RAMA RAO FOR RESPONDENT : MR. P. SOMASEKHAR REDDY DATE OF HEARING : 18.02.2014 DATE OF PRONOUNCEMENT : 02.04.2014 ORDER PER SAKTIJIT DEY J.M. THESE APPEALS OF THE ASSESSEE ARE AGAINST SEPARAT E ORDERS OF CIT-IV HYDERABAD PASSED UNDER SECTION 263 OF THE A CT PERTAINING TO THE ASSESSMENT YEAR 2001-02 TO 2004-05. SINCE COMMON I SSUES ARE INVOLVED IN ALL THESE APPEALS THEY ARE CLUBBED TOGETHER AND ARE BEING DISPOSED OF BY THIS SINGLE CONSOLIDATED ORDER. 2. SINCE FACTS ARE IDENTICAL IN ALL THE APPEALS FOR THE SAKE OF CONVENIENCE WE WILL DEAL WITH FACTS AS INVOLVED IN ITA.NO. 678/HYD/2011 FOR THE ASSESSMENT YEAR 2001-02. 2.1. BRIEFLY STATED THE ASSESSEE WAS AN INDIVIDUA L. INITIALLY THE ASSESSEE HAD NOT FILED ANY RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR. ON RECEIVING INFORMATION THAT THE ASSESSEE AL ONG WITH OTHERS HAD ENTERED INTO A MEMORANDUM OF UNDERSTANDING (MOU) FO R RELINQUISHING HER RIGHT IN RESPECT OF A LAND INHERITED FROM HER A NCESTORS THE ASSESSING 2 OFFICER CAME TO KNOW THAT THE ASSESSEE HAD CAPITAL GAIN OF RS.3 64 734/- IN RESPECT OF HER SHARE FOR THE IMPUGNED ASSESSMENT YEAR. HE FURTHER NOTICED THAT ASSESSMENT IN RESPECT OF OTHER LEGAL H EIRS HAD BEEN COMPLETED ON THE SAME BASIS. THE ASSESSING OFFICER THEREFORE ISSUED A NOTICE UNDER SECTION 148 OF THE ACT ON 07.03.2008 C ALLING UPON THE ASSESSEE TO FURNISH A RETURN OF INCOME. IN THE MEAN WHILE SINCE THE ASSESSEE HAD DIED ON 08.12.2007 HER LEGAL HEIR SRI AHMED MOHD. KHAN FILED THE RETURN OF INCOME ON 22.04.2008 DECLARING TOTAL INCOME OF RS.19 320/- UNDER THE HEAD INCOME FROM HOUSE PROPE RTY. IN COURSE OF RE-ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER NO TICED THAT THE ASSESSEE ALONG WITH 13 OTHER FAMILY MEMBERS HAD TRA NSFERRED THE JOINT FAMILY PROPERTY INHERITED BY THEM AT MIYAPUR ADMEAS URING AC.136.00. THIS PROPERTY ORIGINALLY BELONGED TO LATE ABDUL BAS ITH KHAN WHO HAD TWO SONS AND THREE DAUGHTERS. AFTER THE DEATH OF SRI AB DUL BASITH KHAN SOME TIME IN THE YEAR 1947 HIS ELDEST SON MR. ABDUL BAQ UER KHAN SOLD THE ENTIRE LAND TO ONE MR. RAM GNANESWAR AND 4 OTHERS I N THE YEAR 1963. THEY IN TURN SOLD THE LAND TO M/S. MATRUSREE COOPE RATIVE HOUSE BUILDING SOCIETY IN THE YEAR 1979. THE SOCIETY ALSO ALLOTTED THE LAND TO ITS MEMBERS. THE OTHER FAMILY MEMBERS HAVING BECOME AWA RE OF THE SALE OF LAND BY MR. ABDUL BAQUER KHAN FILED CASES BEFORE T HE CIVIL COURT CLAIMING THEIR SHARE IN THE JOINT FAMILY LAND. THE 1 ST ADDITIONAL DISTRICT JUDGE RANGA REDDY PASSED A PRELIMINARY DECREE ON 2 9.12.2000 IN O.S.NO.38 OF 1993 AND CONFIRMED THE SHARES OF THE A SSESSEE ALONG WITH 13 OTHERS TO THE EXTENT OF 12/28 PORTION OF THE LAN D. THE ASSESSING OFFICER FURTHER NOTICED THAT THE LAND IN QUESTION H AS ALREADY BEEN SOLD TO M/S. MATRUSREE COOPERATIVE HOUSE BUILDING SOCIETY A ND WHO IN TURN HAS ALLOTTED IT TO THEIR MEMBERS WHO WERE IN POSSES SION OVER THE PROPERTY. FOR SETTLING THE DISPUTE WITH THE MEMBERS OF THE MATRUSREE COOPERATIVE HOUSE BUILDING SOCIETY AND TO DISPOSE O F THEIR SHARES IN THE PLOTS THE ASSESSEE ALONG WITH OTHER FAMILY MEMBERS HAD APPROACHED M/S. SRI VENKATESWARA BUILDERS KUKATPALLY TO MEDIA TE ON THEIR BEHALF 3 AND SETTLE THE DISPUTE. AN AGREEMENT WAS EXECUTED O N 09.12.1997 BY THE ASSESSEE ALONG WITH OTHER CO-OWNERS WITH SRI VENKAT ESWARA BUILDERS AS PER WHICH THE ASSESSEE AND OTHER CO-OWNERS RELINQU ISHED THEIR RIGHTS OVER THE SAID PROPERTY FOR AN AGREED CONSIDERATION OF RS.2.72 CRORES. THE ASSESSING OFFICER FURTHER NOTICED THAT IN CASES OF OTHER CO-OWNERS ASSESSMENTS HAVE BEEN COMPLETED BY THE CONCERNED AS SESSING OFFICER BY BRINGING TO TAX THE CAPITAL GAIN ARISING OUT OF THE RELINQUISHMENT OF RIGHT OVER THE SAID LAND IN FAVOUR OF THE MEMBERS OF MATR USREE COOPERATIVE HOUSE BUILDING SOCIETY. IN TERMS OF THE ASSESSMENT ORDERS PASSED IN CASE OF OTHER CO-OWNERS THE ASSESSING OFFICER ULTI MATELY COMPLETED THE ASSESSMENT UNDER SEC. 143(3) READ WITH SECTION 147 OF THE ACT BY COMPUTING CAPITAL GAIN OF RS.3 64 734/- FOR THE IMP UGNED ASSESSMENT YEAR. THE CIT WHILE EXAMINING THE ASSESSMENT RECORD S OF THE ASSESSEE IN EXERCISE OF POWER UNDER SECTION 263 OF THE ACT WAS OF THE VIEW THAT THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) READ W ITH SECTION 147 OF THE ACT IS ERRONEOUS AND PREJUDICIAL TO THE INTERES TS OF REVENUE AS THE ASSESSING OFFICER HAS BROUGHT TO TAX CAPITAL GAIN A T THE HANDS OF THE ASSESSED IN RESPECT OF 1/6 TH SHARE. WHEREAS SINCE THE ASSESSEE HAD RECEIVED THE SHARE OF HAFIRUNNISA BEGUM WHO DIED IS SUE-LESS THE ASSESSEES SHARE IN THE PROPERTY AND CONSEQUENTIAL SALE CONSIDERATION SHOULD HAVE BEEN TAKEN AT 1/3 RD . HE FURTHER STATED IN THE SHOW CAUSE NOTICE THAT THE COST OF ACQUISITION ADOPTED BY THE ASSESSING OFFICER AT RS.2/- PER SQ. YARD IS NOT CORRECT AS THE MARKET VA LUE OF DRY AGRICULTURAL LAND AS ON 01.04.1981 WAS RS.2/- PER ACRE AS PER TH E RECORDS OF JOINT SUB REGISTRAR OFFICE. 2.2. THE THIRD ISSUE ON WHICH THE ASSESSMENT ORDER WAS FOUND TO BE ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF RE VENUE IS ACCORDING TO THE CIT THE ASSESSING OFFICER HAD WRONGLY ALLOWED THE CLAIM OF DEDUCTION TOWARDS BROKERAGE WHICH IS NOT SUPPORTED BY ANY EVI DENCE. ON THE AFORESAID BASIS THE CIT NOTED THAT THE CORRECT LON G TERM CAPITAL GAIN FOR 4 ASSESSMENT YEAR 2001-02 IS RS.11 19 133/- BEING 1/3 RD OF THE NET CAPITAL GAIN OF RS.33 57 400/-. SINCE THE ASSESSING OFFICER HAD COMPUTED THE CAPITAL GAINS AT RS.3 64 734/- THE CIT DIRECTED TH E ASSESSEE TO SHOW CAUSE AS TO WHY THE ASSESSMENT ORDER PASSED SHOULD NOT BE SET ASIDE BEING ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. IN RESPONSE TO THE SHOW CAUSE NOTICE ISSUED BY THE CIT THE ASS ESSEE APPEARED BEFORE THE CIT AND MADE HIS SUBMISSIONS OBJECTING TO THE C ONCLUSION DRAWN BY THE CIT THAT THE ASSESSMENT ORDER IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. IT WAS CONTENDED BY THE ASSES SEE THAT AS PER THE PRELIMINARY DECREE PASSED BY THE 1 ST ADDITIONAL DISTRICT JUDGE RANGA REDDY DISTRICT DATED 29.12.2000 THE ASSESSEE IS EN TITLED TO ONLY 1/9 TH SHARE OF THE PROPERTY AS AGAINST 1/6 TH ASSESSED BY THE ASSESSING OFFICER. THEREFORE IT CANNOT BE SAID THAT THE ASSESSMENT OR DER IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. THE CIT H OWEVER DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE. THE CIT WAS OF THE VIEW THAT THE ENTIRE CALCULATION OF LONG TERM CAPITAL GAIN WAS DONE BY T HE ASSESSING OFFICER ON THE BASIS OF THE SHARES DETERMINED IN THE PRELIMINA RY DECREE DATED 29.12.2000 PASSED BY THE 1 ST ADDITIONAL DISTRICT JUDGE IN O.S.NO.38/93 WHICH WAS SUSPENDED BY THE HIGH COURT OF ANDHRA PRA DESH IN ORDER DATED 13.04.2001. HE THEREFORE HELD THAT AS THE O RDER OF THE ADDITIONAL DISTRICT JUDGE HAS BEEN STAYED BY THE HONBLE HIGH COURT THE ASSESSEE IS ENTITLED FOR 1/3 RD OF THE SHARE IN THE PROPERTY INCLUDING THE SHARE O F HER DECEASED SISTER HAFIZUNNISA BEGUM. HE THEREFORE DIRECTED THE ASSESSING OFFICER TO CHARGE CAPITAL GAIN TAX ON 1/3 RD SHARE IN PLACE OF 1/6 TH SHARE AS DONE BY THE ASSESSING OFFICER. SO FAR AS THE COST OF ACQUISITION OF RS.2/- PER ACRE AS ON 01.04.1981 ON THE BASIS OF JOINT SRO RATE IS CONCERNED THE ASSESSEE CONTENDED THAT THE SRO CANNOT BE TAKEN AS THE FAIR MARKET VALUE. IT WAS SUBMITTED TH AT THE ACTUAL FAIR MARKET VALUE IS MUCH MORE THAN THE SRO GUIDELINE VA LUE. IN SUPPORT OF SUCH CONTENTION THE ASSESSEE FURNISHED COPIES OF S ALE DEEDS EXECUTED BY THE MATRUSREE COOPERATIVE HOUSE BUILDING SOCIETY ON 17.07.1980 AND 5 17.02.1981 IN THE SAME SURVEY NUMBER WHERE THE VALU E PER SQ. YARD WAS WORKED OUT TO RS.6/-. THE CIT AGAIN REJECTED THE CO NTENTION OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE COULD NOT FURNISH THE ORIGINAL SALE DEEDS FOR INSPECTION AND HAS ONLY SUBMITTED CE RTIFIED COPIES OBTAINED FROM SUB REGISTRAR OFFICE. HE FURTHER HELD THAT THE COMPARABLE INSTANCES OF SALES RELIED BY THE ASSESSEE RELATE TO FULLY DEVELOPED PLOTS WHEREAS THE ASSESSEE SOLD UNDEVELOPED DRY AGRICULT URAL LAND. ACCORDINGLY THE CIT DIRECTED THE ASSESSING OFFICER TO ADOPT THE COST OF ACQUISITION OF THE LAND AS ON 01.04.1981 AT RS.2/- PER ACRE FOR COMPUTING CAPITAL GAIN. SO FAR AS THE THIRD ISSUE O F BROKERAGE IS CONCERNED THE ASSESSEE CONTENDED THAT THE BROKERAG E WAS ACTUALLY PAID TO THE PARTIES AND IN SUPPORT OF SUCH CONTENTION T HE ASSESSEE FURNISHED COPIES OF THE CONFIRMATION LETTER DATED 11.03.2011 FROM MB KRISHNA REDDY MANAGING PARTNER OF M/S. VENKATESWARA BUILDE RS CONFIRMING PAYING OF COMMISSION THROUGH ACCOUNT PAYEE CHEQUES. THE ASSESSEE ALSO CONTENDED THAT SRI MB KRISHNA REDDY IN HIS SWORN ST ATEMENT RECORDED UNDER SECTION 131 ON 23.01.2006 HAD ALSO CATEGORICA LLY STATED ABOUT PAYMENT OF COMMISSION. THE CIT HOWEVER DID NOT ACC EPT THE CONTENTIONS OF THE ASSESSEE AND HELD THAT THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT HAS COMMITTED AN ERROR BY NOT DISALLOWIN G THE COMMISSION / BROKERAGE CLAIMED BY THE ASSESSEE. ON THE AFORESAID REASONS THE CIT ULTIMATELY HELD THAT THE ASSESSMENT ORDER PASSED UN DER SECTION 143(3) READ WITH SECTION 147 OF THE ACT IS ERRONEOUS AND P REJUDICIAL TO THE INTERESTS OF REVENUE AND WHILE SETTING ASIDE THE AS SESSMENT ORDER SO PASSED DIRECTED THE ASSESSING OFFICER TO RE-DO THE SAME AS PER THE DIRECTIONS CONTAINED IN THE ORDER PASSED UNDER SEC. 263 OF THE ACT. BEING AGGRIEVED BY THE ORDER PASSED BY THE CIT THE ASSES SEE IS IN APPEAL BEFORE US. 3. THE LEARNED A.R. SUBMITTED THAT THE EXERCISE OF JURISDICTION UNDER SECTION 263 OF THE ACT IS TOTALLY UNTENABLE A S THE ASSESSING OFFICER 6 HAS COMPLETED THE ASSESSMENT AFTER CONSIDERING ALL THE ASPECTS NOT ONLY WITH PROPER APPLICATION OF MIND BUT ALSO BY CONDUCT ING NECESSARY ENQUIRY. THEREFORE THE ORDER PASSED BY THE ASSESSI NG OFFICER CANNOT BE HELD TO BE ERRONEOUS OR PREJUDICIAL TO THE INTEREST S OF REVENUE. THE LEARNED A.R. SUBMITTED THAT SO FAR AS THE DIRECTION OF THE CIT TO ASSESS 1/3 RD SHARE AT THE HANDS OF THE ASSESSEE IS CONCERNED S UCH DIRECTION IS TOTALLY IRRELEVANT AND CONTRARY TO THE MATERIALS ON RECORD. IT WAS SUBMITTED THAT THE PRELIMINARY DECREE PASSED BY THE CIVIL COURT IN THE MEANWHILE HAS BEEN CONFIRMED BY THE HONBLE HIGH CO URT OF ANDHRA PRADESH. THEREFORE THE REASONING OF THE CIT THAT 1/6 TH SHARE DETERMINED BY THE ASSESSING OFFICER ON THE BASIS OF PRELIMINAR Y DECREE PASSED BY THE 1 ST ADDITIONAL DISTRICT JUDGE RANGA REDDY DISTRICT IS ERRONEOUS NO MORE HOLDS GOOD. IN THIS CONTEXT THE LEARNED A.R. REFER RED TO THE ORDER OF THE HONBLE HIGH COURT IN APPEAL SUIT NO.1008 AND 1161 OF 2001 CONFIRMING THE PRELIMINARY DECREE. IT WAS FURTHER CONTENDED BY THE LEARNED A.R. THAT AGAINST THE ASSESSMENT ORDER PASSED UNDER SECTION 1 43(3) READ WITH SECTION 147 OF THE ACT THE ASSESSEE HAD PREFERRED AN APPEAL BEFORE THE CIT(A). THE CIT(A) HAD CONFIRMED THE ASSESSMENT ORD ER PASSED BY THE ASSESSING OFFICER. AGAINST THE ORDER PASSED BY THE CIT(A) THE ASSESSEE HAD WENT IN FURTHER APPEAL BEFORE THE TRIBUNAL. THE TRIBUNAL IN ITS ORDER PASSED IN ITA.NO.1112 TO 1126/HYD/2009 DATED 30.09. 2010 WHILE CONFIRMING THE ORDER OF THE ASSESSING OFFICER ON TH E CHARGEABILITY OF CAPITAL GAIN HAD ONLY REMITTED THE ISSUE TO THE FIL E OF THE ASSESSEE FOR THE LIMITED PURPOSE OF DECIDING THE YEAR OF CHARGEABIL ITY. IT WAS THEREFORE CONTENDED THAT THE ISSUE HAVING ALREADY BEEN DECIDE D BY THE CIT(A) AND TRIBUNAL THE CIT CANNOT EXERCISE JURISDICTION UNDE R SECTION 263 OF THE ACT TO REVISE AN ASSESSMENT WHICH HAS ALREADY MERGE D WITH THE ORDER OF THE FIRST APPELLATE AUTHORITY. SO FAR AS THE DIRECT ION OF THE CIT TO ADOPT THE COST OF ACQUISITION AT RS.2/- PER ACRE AS ON 01 .04.1981 AND DISALLOWANCE OF BROKERAGE THE LEARNED A.R. SUBMITT ED THAT BOTH THE ISSUES ARE ALSO COVERED BY THE DECISION OF THE CIT( A) AND TRIBUNAL. THE 7 ASSESSMENT ORDER HAVING MERGED WITH THE ORDERS OF T HE APPELLATE AUTHORITIES THE CIT CANNOT EXERCISE JURISDICTION U NDER SECTION 263 OF THE ACT. 4. THE LEARNED D.R. WHILE SUPPORTING THE ORDER OF THE CIT SUBMITTED THAT THE HONBLE HIGH COURT WHILE DISPOSI NG OF THE APPEAL AGAINST THE PRELIMINARY DECREE IN PARA 19 OF THE JU DGMENT HAS OBSERVED THAT THE PRELIMINARY DECREE CONTINUES TILL THE FINA L DECREE IS PASSED. THEREFORE THE ACTUAL SHARE OF THE PARTIES CANNOT B E DETERMINED ON THE BASIS OF THE PRELIMINARY DECREE. THE LEARNED D.R. S UBMITTED THAT THE ASSESSING OFFICER HAVING DETERMINED THE SHARE OF TH E ASSESSEE AT 1/6 TH OF THE TOTAL EXTENT OF LAND AND ALSO IN THE SALE CONSI DERATION THE ASSESSMENT ORDER PASSED HAS THEREFORE BECOME ERRON EOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. SO FAR AS THE ISSUE OF ADOPTING OF COST OF ACQUISITION AND PAYMENT OF BROKERAGE IS CON CERNED THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT SINCE TH E ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT HAS NOT APPLIED HIS MIND TO THESE ISSUES. THE CIT WAS JUSTIFIED IN REVISING THE ASSES SMENT ORDER UNDER SECTION 263 OF THE ACT. 5. WE HAVE HEARD THE SUBMISSIONS OF THE PARTIES AN D PERUSED THE ORDERS PASSED BY THE REVENUE AUTHORITIES AS WEL L AS OTHER MATERIALS ON RECORD. AS IS APPARENT FROM THE NOTICE ISSUED UN DER SECTION 263 OF THE ACT AS WELL AS THE REVISION ORDER PASSED BY THE CIT HE HAS HELD THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) READ W ITH SECTION 147 OF THE ACT TO BE ERRONEOUS AND PREJUDICIAL TO THE INT ERESTS OF REVENUE DUE TO THE FOLLOWING THREE REASONS : (I) THE ASSESSING OFFICER HAS TAKEN 1/6 TH SHARE IN THE PROPERTY SOLELY RELYING ON THE PRELIMINARY DECREE PASSED BY THE 1 ST ADDITIONAL DISTRICT JUDGE RANGA REDDY DISTRICT WHI CH HAS BEEN STAYED BY THE HONBLE HIGH COURT OF ANDHRA PRA DESH. 8 (II) THE COST OF ACQUISITION AS ON 01.04.1981 HAS BEEN ERRONEOUSLY ADOPTED AT RS.2/- PER SQ. YARD INSTEAD OF RS.2/ PER ACRE. (III) BROKERAGE CLAIMED HAS BEEN ALLOWED WITHOUT ANY SUPP ORTING EVIDENCE. 5.1. AS CAN BE SEEN FROM THE FACTS AND MATERIALS O N RECORD THE ADDITIONAL DISTRICT JUDGE RANGA REDDY DISTRICT HAS PASSED A PRELIMINARY DECREE ON 29.12.2000 IN OS.NO.38 OF 1993 PARTITIONI NG THE SUIT PROPERTY TO 28 SHARES AND FOR ALLOTMENT OF 12 SHARES TO PLAI NTIFFS ASSESSEE BEING ONE OF THEM. THE ASSESSING OFFICER ON THE BASIS OF THE AFORESAID PRELIMINARY DECREE DETERMINED THE SHARE OF THE ASS ESSEE AT 1/6 TH OF THE TOTAL EXTENT OF LAND AND ALSO COMPUTED THE CAPITAL GAIN ACCORDINGLY. IT ALSO APPEARS THAT ASSESSMENT ORDERS IN CASE OF OTHE R CO OWNERS WERE ALSO COMPLETED ON THE BASIS OF THE PRELIMINARY DECREE PA SSED BY THE 1 ST ADDITIONAL DISTRICT JUDGE. IT IS VERY MUCH EVIDENT FROM THE ORDER PASSED UNDER SECTION 263 OF THE ACT THAT THE CIT HAS REFUS ED TO ACCEPT THE FACT THAT THE ASSESSEE IS ENTITLED TO 1/6 TH SHARE ONLY ON THE GROUND THAT THE PRELIMINARY DECREE HAS BEEN SUSPENDED BY THE HONBL E HIGH COURT OF ANDHRA PRADESH. HOWEVER FACT REMAINS THAT HONBLE HIGH COURT OF A.P. HAS DISPOSED OF THE APPEAL AGAINST THE PRELIMINARY DECREE BY DISMISSING IT AND CONFIRMING THE PRELIMINARY DECREE PASSED BY THE CIVIL COURT. THEREFORE THE VERY BASIS ON WHICH THE CIT HAS HELD THE ASSESSMENT ORDER TO BE ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE HAS BECOME REDUNDANT. THAT APART IT IS A FACT ON RECORD THAT THE ISSUE WITH REGARD TO SHARING OF THE PROPERTY BETWEEN THE CO-OWNERS IS ST ILL PENDING BEFORE THE CIVIL COURT. THAT BEING THE CASE THE CIT CANNOT DE TERMINE THE SHARE OF THE ASSESSEE IN THE DISPUTED PROPERTY WHEN THE MATT ER IS STILL PENDING FOR DECISION IN CIVIL COURT WHICH ALONE IS COMPETENT TO DECIDE THE RIGHT TITLE AND INTEREST OF THE PARTIES IN RESPECT OF THE PROPE RTY IN QUESTION. THEREFORE IN OUR VIEW THE CIT CANNOT DIRECT THE A .O. TO DETERMINE ASSESSEES SHARE IN PROPERTY AS WELL AS IN CAPITAL GAIN AS 1/3 RD . 9 THEREFORE TO THAT EXTENT CITS DIRECTION CANNOT B E SUSTAINED. HOWEVER IF THERE WILL BE ANY CHANGE IN ASSESSEES SHARE AS A R ESULT OF THE FINAL DECREE TO BE PASSED BY THE CIVIL COURT THE SAME HAS TO BE TAKEN NOTE BY THE A.O. AND CONSEQUENTIAL ACTION NEEDS TO BE TAKEN BY HIM. 6. SO FAR AS THE ADOPTION OF COST OF ACQUISITION A S ON 01.04.1981 AT RS.2/- PER SQ.YARD BY THE ASSESSING O FFICER IS CONCERNED IT HAS TO BE NOTED THAT THE ASSESSEE DURING THE REVISI ON PROCEEDING BEFORE THE CIT HAD PRODUCED CERTIFIED COPIES OF THE SALE D EEDS IN CASE OF TWO COMPARABLE INSTANCES OF SALE OF LAND IN THE SAME SU RVEY NUMBER AT RS.6/- PER SQ. YARD. HOWEVER THE CIT HAS REFUSED T O TAKE COGNIZANCE OF THEM ON A FLIMSY GROUND THAT THE ASSESSEE HAS FAILE D TO PRODUCE THE ORIGINAL SALE DEEDS. SUCH REASONING OF THE CIT IN O UR VIEW IS NOT AT ALL ACCEPTABLE. WHEN THE ASSESSEE IS PRODUCING CERTIFIE D COPIES OF THE SALE DEEDS THE CIT IS BOUND TO ACCEPT THEM AND CANNOT I NSIST UPON THE ASSESSEE TO PRODUCE THE ORIGINAL SALE DEEDS WHICH I S AN IMPOSSIBLE ACT TO DO. SIMILARLY THE CIT CANNOT DETERMINE THE COST O F ACQUISITION SOLELY RELYING UPON THE SRO RATE AS TIME AND AGAIN IT HAS BEEN HELD BY DIFFERENT BENCHES OF THE TRIBUNAL AS WELL AS THE JURISDICTION AL HIGH COURT THAT SRO RATE CANNOT BE CONSIDERED TO BE REFLECTING THE FAIR MARKET VALUE. 7. SIMILARLY SO FAR AS THE PAYMENT OF BROKERAGE I S CONCERNED IN OUR VIEW THE CIT WAS NOT JUSTIFIED IN HOLDING TH E ASSESSMENT ORDER TO BE ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF RE VENUE SINCE THE ASSESSEE HAS PRODUCED THE NECESSARY EVIDENCES IN SU PPORT OF THE BROKERAGE CLAIMED AND THE ASSESSING OFFICER HAS PAS SED THE ORDER AFTER APPLYING HIS MIND TO THE MATERIALS AVAILABLE ON REC ORD AS WELL AS CONDUCTING NECESSARY ENQUIRY. A PERUSAL OF THE ASSE SSMENT ORDER CLEARLY REVEALS THE FACT THAT THE ASSESSING OFFICER HAS NOT ONLY APPLIED HIS MIND BUT HAS ALSO MADE NECESSARY ENQUIRY WHILE BRINGING THE CAPITAL GAINS TO TAX. IT IS ALSO A FACT THAT AGAINST THE AFORESAID A SSESSMENT ORDER THE 10 ASSESSEE HAS PREFERRED AN APPEAL BEFORE THE CIT(A). THE CIT(A) HAS DEALT IN DETAIL WITH THE VARIOUS ISSUES RELATING TO CAPIT AL GAIN IN COURSE OF DISPOSAL OF THE APPEAL PREFERRED BY THE ASSESSEE AN D HAS ULTIMATELY PASSED AN EXHAUSTIVE ORDER WHEREIN HE HAS CONSIDERE D ALL THE ASPECTS RELATING NOT ONLY TO THE COMPUTATION OF CAPITAL GAI N BUT ALSO WITH REGARD TO THE VARIOUS EXPENSES CLAIMED BY THE ASSESSEE INC LUDING BROKERAGE. THE AFORESAID ORDER OF THE CIT(A) WAS CHALLENGED BEFORE THE ITAT IN THE APPEALS PREFERRED BY THE ASSESSEE. A PERUSAL OF THE ORDER PASSED BY THE ITAT IN ITA.NO.1122 TO 1126/HYD/2009 DATED 30.06.20 10 A COPY OF WHICH IS PLACED AT PAGE 68 OF THE PAPER BOOK REVEA LS THE FACT THAT THE TRIBUNAL HAS MORE OR LESS CONFIRMED THE ORDER OF TH E CIT(A) EXCEPT FOR THE LIMITED ISSUE OF YEAR OF ASSESSABILITY OF CAPITAL G AIN AND REMITTED THE MATTER TO THE FILE OF THE CIT(A) TO DECIDE THE SAME . FOR THE SAKE OF CONVENIENCE THE FINDING OF THE TRIBUNAL IS EXTRACT ED HEREUNDER : 8. WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF SEC. 2(47) OF THE ACT WHICH READS AS FOLLOWS: 'SEC.2(47) 'SEC.2( 4 7): TRANSFER IN RELATION TO A CAPITAL ASS ET INCLUDES -- (I) THE SALE EXCHANGE OR RELINQUISHMENT OF THE A SSET; OR (II) THE EXTINGUISHMENT OF ANY RIGHTS THEREIN OR (III) THE COMPULSORY ACQUISITION THEREOF UNDER AN Y LAW; OR (IV) IN A CASE WHERE THE ASSET IS CONVERTED BY TH E OWNER THEREOF INTO OR IS TREATED BY HIM AS STOCK-IN-TRADE OF A BUSINESS CARRIED ON BY HIM SUCH CONVERSION OR TREATMENT ; OR (V) ANY TRANSACTION INVOLVING THE ALLOWING OF THE POSSESSION OF ANY IMMOVABLE PROPERTY TO BE TAKEN OR RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION53A OF THE TRANSFER OF PROPERTY ACT 1882 ( 4 OF 1882) OR (VI) ANY TRANSACTION (WHETHER BY WAY OF BECOMING A MEMBER OF OR 11 ACQUIRING SHARES IN A CO OPERATIVE SOCIETY COMPAN Y OR OTHER ASSOCIATION OF PERSONS OR BY WAY OF ANY AGREEMENT O R ANY ARRANGEMENT OR IN ANY OTHER MANNER WHATSOEVER) WHIC H HAS THE EFFECT OF TRANSFERRING OR ENABLING THE ENJOYMENT OF ANY IMMOVABLE PROPERTY. EXPLANATION- FOR THE PURPOSES OF SUB CLAUSES (V) AN D (VI) IMMOVABLE PROPERTY SHALL HAVE THE SAME MEANING AS IN CLAUSE ( D) OF SECTION 269UA).' CLAUSE (V) AND (VI) CLEARLY SAY THAT ANY TRANSACTIO N INVOLVING ALLOWING OF THE POSSESSION TO BE RETAINED IN PURSUANCE OF A CONTRACT OR ALLOWING THE ENJOYMENT OF THE IMMOVABLE PROPERTY WOULD ALSO AMOUNTS TO A TRANSFER. WE FIND THAT IN RESPECT OF THE VERY SAME PROPERTY IN THE CASE OF OTHER CO-OWNERS IN ITA NOS. 1220 TO 1236/HYD/09 THE TRIBUNAL CONSIDERED THE YEAR OF ASSESSABILITY AND REMITTED T HE MATTER TO THE FILE OF THE CIT(A) FOR CONSIDERATION. THEREFORE FOR THE SAKE OF CONSISTENCY WE REMIT THE ISSUE OF YEAR OF ASSESSABILITY TO THE FILE OF THE CIT(A). THE CIT(A) SHALL DECIDE THE ISSUE IN ACCORDANCE WITH LA W AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE. 7.1. ON A PLAIN READING OF THE FINDING OF THE TRIB UNAL EXTRACTED HEREINABOVE IT BECOMES CLEAR THAT EXCEPT THE YEAR OF ASSESSABILITY THE OTHER ASPECTS OF COMPUTATION OF CAPITAL GAIN HAS AT TAINED FINALITY. THAT BEING THE CASE THE ASSESSMENT ORDER ON THE ISSUE O F CAPITAL GAIN HAVING MERGED WITH THE ORDER PASSED BY THE CIT(A) AND ITAT WILL NOT BE AMENABLE TO REVISIONARY PROCEEDING UNDER SECTION 26 3 OF THE ACT IN VIEW OF THE SPECIFIC BAR CONTAINED UNDER SECTION 263(1) EXPLANATION (C). THEREFORE CONSIDERED IN THE AFORESAID PERSPECTIVE THE EXERCISE OF JURISDICTION UNDER SECTION 263 OF THE ACT IN THE PR ESENT CASE IS NOT ONLY CONTRARY TO LAW BUT AGAINST THE STATUTORY MANDATE. THEREFORE IN THE FACTS AND CIRCUMSTANCES OF THE CASE WE HAVE NO HESITATIO N TO HOLD THAT THE ORDER PASSED UNDER SECTION 263 OF THE ACT IS LEGALL Y UNSUSTAINABLE EXCEPT TO THE EXTENT OF ASSESSEES SHARE IN THE PROPERTY W HICH WILL DEPEND UPON THE FINAL DECREE TO BE PASSED BY THE CIVIL COURT. A CCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE CIT UNDER SECTION 263 OF TH E ACT. 8. WITH RESPECT TO OTHER ITA.NO.679 680 & 681/HYD /2011 FACTS BEING IDENTICAL RESPECTFULLY FOLLOWING OUR V IEW IN PARA NO. 5 TO 7.1. 12 HEREINABOVE WE HOLD THAT THE ORDER PASSED BY THE C IT UNDER SECTION 263 OF THE ACT IS LEGALLY UNSUSTAINABLE. ACCORDINGLY W E SET ASIDE THE SAME IN THESE APPEALS ALSO. 9. IN THE RESULT APPEALS OF THE ASSESSEE ARE ALLO WED TO THE EXTENT INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 02.04.2014. SD/- SD/- (CHANDRA POOJARI) (SAKTIJIT DEY) ACOUNTANT MEMBER JUDICI AL MEMBER HYDERABAD DATED 02 ND APRIL 2014 VBP/- COPY TO : 1. MR. MOHD. AHMED KHAN L/R OF LATE MEHERUNNISA BEGUM L/R OF LATE MRS. MEHERUNNISA BEGUM H.NO.3-6-17 6/1 HYDERGUDA HYDERABAD C/O. M/S. M.A. MOHIADDIN & CO. C.AS. 307 LENAINE ESTATE ABID ROAD HYDERABAD 5 00 001. 2. ITO WARD 4(4) HYDERABAD 3. CIT - IV HYDERABAD. 4. ADDL. CIT RANGE - 4 HYDERABAD 5. D.R. ITAT A BENCH HYDERABAD.