The Assistant Commissioner of Income Tax, Hyderabad v. Katari Vijaya Lakshmi, Hyderabad

ITA 851/HYD/2011 | 2007-2008
Pronouncement Date: 30-03-2012 | Result: Allowed

Appeal Details

RSA Number 85122514 RSA 2011
Assessee PAN AGOPG8146R
Bench Hyderabad
Appeal Number ITA 851/HYD/2011
Duration Of Justice 10 month(s) 21 day(s)
Appellant The Assistant Commissioner of Income Tax, Hyderabad
Respondent Katari Vijaya Lakshmi, Hyderabad
Appeal Type Income Tax Appeal
Pronouncement Date 30-03-2012
Appeal Filed By Department
Order Result Allowed
Bench Allotted B
Tribunal Order Date 30-03-2012
Date Of Final Hearing 16-08-2011
Next Hearing Date 16-08-2011
Assessment Year 2007-2008
Appeal Filed On 09-05-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH HYDERABAD BEFORE SHRI CHANDRA POOJARI ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY JUDICIAL MEMBER ITA NOS. 850/HYD/2011 851/HYD/2011 ASSTT. YEARS 2007-08 ACIT CIR - 8(1) HYDERABAD. -DO- VS 1) VASAVI RAJU GUTAM KONDAPUR HYDERABAD. PAN:AGOPG 8146 R 2) SMT. KOTARI VIJAYA LAKSHMI HYDERABAD. PAN:ATQPK 6216P ( APPELLANT ) ( RESPONDENT S ) APPELLANT BY : SRI B.V. PRASAD REDDY RESPONDENT BY : SRI A.V. RAGHURAM DATE OF HEARING : 22-03-2012. DATE OF PRONOUNCEMENT : 30 -03-2012. ORDER PER SAKTIJIT DEY J.M. THESE ARE TWO APPEALS BY THE REVENUE DIRECTED AGAINST SEPARATE ORDERS DATED 11-2-2011 OF CIT (APPEALS) VIJAYAWADA AND THEY PERTAIN TO THE ASSES SMENT YEAR 2007-08 IN THE CASES OF TWO DIFFERENT ASSESSEE - RESPONDENTS. THE REVENUE HAS RAISED COMMON GROUNDS IN THESE APPEALS. HENCE THESE ARE CLUBBE D ITA NOS. 850 AND 851/HYD/2011 VASAVI RAJU GUTAM & KOTARI VIJAYALAKSHMI HYD. =============================== 2 HEARD TOGETHER AND DISPOSED OF BY THIS COMBINED ORDER FOR THE SAKE OF CONVENIENCE. 2. WE FIND THAT THE FACTS INVOLVED IN BOTH THESE APPEALS ARE COMMON AND INTERCONNECTED TO EACH OTHER FOR THE SAKE OF BREVITY WE DEAL WITH THE FACTS AS MENTIONED IN ITA NO.850/HYD/2011. THE ONLY ISSUE INVOLVED IN THIS APPEAL IS ACCEPTANCE OF ASSESSEES REVISED CLAIM OF DEDUCTION UNDER SECTION 54F OF THE ACT BY THE CIT (A). BRIEFLY THE FACTS ARE THAT THE ASSESSEE WAS THE OWNER OF DRY LAND TO THE EXTENT OF 12 HECTARES 19 A CRES CA 30 AT YANAM UNION TERRITORY OF PONDICHERRY. TH E OTHER ASSESSEE- RESPONDENT WHO HAPPENS TO BE THE MOTHER OF THE FIRST ASSESSEE-RESPONDENT IN ITA NO. 851/HYD/2011 WAS ALSO HOLDING ADJOINING LAND UNDER THE SAME SURVEY. THE ASSESSEE AND HER MOTHER SOLD THE LAND TO GUJARAT STATE PETROLEUM CORPORATION LIMITED AND SRI VASI REDDY VENKATA SRINIVASA RAO. THE ASSESSEE AFT ER SALE OF HER PORTION OF LAND RECEIVED AN AMOUNT OF RS.2 09 18 507/-. OUT OF THE AMOUNT RECEIVED FROM SALE OF LAND THE ASSESSEE ALONG WITH HER MOTHER JOINTLY PURCHASED A RESIDENTIAL HOUSE AT R.R. DISTRICT. WH ILE COMPUTING THE LONG TERM CAPITAL GAINS IN HER RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007-08 THE ASSESSEE CLAIMED DEDUCTION U/S 54F OF AN AMOUNT OF RS.42 92 535. IN THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESS EE REVISED HER CLAIM OF DEDUCTION UNDER SEC. 54F OF TH E ACT AND SUBMITTED THAT ACTUALLY SHE HAD INVESTED A SUM OF RS.86 29 440/- FOR PURCHASE OF A NEW HOUSE. THE ASSESSEE EXPLAINED BEFORE THE AO THAT THE DEDUCTION WAS ERRONEOUSLY CLAIMED AT THE LESSER AMOUNT OF RS.42 9 2 535 ITA NOS. 850 AND 851/HYD/2011 VASAVI RAJU GUTAM & KOTARI VIJAYALAKSHMI HYD. =============================== 3 DUE TO A MISTAKE IN THE WORK SHEET IN WHICH THE DEDUCTION WAS COMPUTED. THE ASSESSEE PRODUCED A CO PY OF THE AGREEMENT ENTERED WITH M/S ARUNACHALA LOGIST ICS PRIVATE LIMITED AND M/S NIVEE PROPERTY DEVELOPERS P RIVATE LIMITED FOR CONSTRUCTION AT A COST OF RS.62 70 600 AND ALSO PRODUCED BILLS AND VOUCHERS IN SUPPORT OF HER CLAIM THAT INVESTMENT OF RS.86 29 440/- WAS MADE IN THE NEW HOUSE. THE AO REJECTED THE ASSESSEES CLAIM ON THE GROUND THAT SHE DID NOT FILE ANY REVISED RETURN REC TIFYING THE MISTAKE. THE AO FURTHER OBSERVED THAT THE ASSE SSEE HAD REVISED HER CLAIM OF DEDUCTION U/S 54F ONLY BEC AUSE HER CLAIM WITH REGARD TO COST OF IMPROVEMENTS HAS N OT BEEN ACCEPTED IN THE ASSESSMENT. THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER BEFORE THE CIT (A). THE CIT (A) AFTER CONSIDERING THE CONTENTIONS OF THE AS SESSEE AND GOING THROUGH THE EVIDENCES PRODUCED BEFORE HI M ACCEPTED THE CLAIM AND DIRECTED THE AO TO RE-COMPUT E THE DEDUCTION U/S 54F BY ADOPTING INVESTMENT OF THE ASS ESSEE IN THE NEW HOUSE AT RS.86 29 440/-. 3. THE LEARNED DR SUBMITS THAT THE ORDER OF THE CIT (A) IS THOROUGHLY CONFUSING SINCE IT IS NOT KNOWN W HERE FROM HE HAS ADOPTED THE FIGURE OF RS.91 24 629/- B EING THE ORIGINAL INVESTMENT CLAIMED BY THE ASSESSEE. T HE LEARNED DR FURTHER SUBMITS THAT IN THE ABSENCE OF R EVISED RETURN THE AO WAS JUSTIFIED IN NOT ENTERTAINING TH E REVISED CLAIM MADE BY THE ASSESSEE IN THE COURSE OF ASSESSMENT PROCEEDINGS. 4. THE LEARNED AR OF THE ASSESSEE SUBMITS THAT THE ASSESSEE IN THE COURSE OF ASSESSMENT PROCEEDINGS HA D ITA NOS. 850 AND 851/HYD/2011 VASAVI RAJU GUTAM & KOTARI VIJAYALAKSHMI HYD. =============================== 4 SUBMITTED ALL EVIDENCES LIKE AGREEMENT BILLS AND V OUCHERS IN SUPPORT OF HER REVISED CLAIM THAT THE ACTUAL INV ESTMENT MADE IN THE NEW HOUSE WAS RS.86 29 447/-. THE LD. AR SUBMITS THAT THE DEDUCTION WAS ERRONEOUSLY CLAIMED IN THE RETURN UNDER SEC. 54F AT A LESSER AMOUNT WHICH IS VERY MUCH EVIDENT FROM THE COMPUTATION SHEET ITSELF WHERE IN THE INNER COLUMN HIGHER FIGURE OF INVESTME NT HAS BEEN MENTIONED. THE LD. AR FURTHER SUBMITS THAT TH E ASSESSEE HAVING PRODUCED ALL EVIDENCES TO PROVE THE FACT OF HIGHER INVESTMENT MADE BY HER THE AO SHOULD NOT HAVE REJECTED THE SAME ONLY ON THE GROUND THAT THE ASSESSEE HAS NOT FILED REVISED RETURN. THE LEARNE D AR SUBMITS THAT EVEN IN THE ABSENCE OF REVISED RETURN THE AO WAS DUTY BOUND TO COMPUTE THE TOTAL INCOME ON THE B ASIS OF EVIDENCE PRODUCED BEFORE HIM. IN SUPPORT OF HIS CONTENTION THE LEARNED AR RELIED UPON THE DECISION OF DELHI HIGH COURT IN THE CASE OF CIT VS. BHARAT ALUM INIUM CO. LTD. (163 TAXMAN 430). 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF THE PARTI ES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AFTE R GOING THROUGH THE ORDER OF THE CIT (A) WE FIND THAT HE H AS NOT PROPERLY DEALT WITH THE FACTS WHILE DIRECTING THE A O TO RE- COMPUTE THE DEDUCTION U/S 54F BY ADOPTING THE AMOUN T OF RS.86 29 440/-. 6. AT THE SAME TIME THE AO IS ALSO NOT JUSTIFIED I N REJECTING THE REVISED CLAIM OF DEDUCTION UNDER SECT ION 54F OF THE ACT MADE BY THE ASSESSEE WITHOUT VERIFYING T HE EVIDENCES PRODUCED BEFORE HIM ONLY ON THE GROUND TH AT ITA NOS. 850 AND 851/HYD/2011 VASAVI RAJU GUTAM & KOTARI VIJAYALAKSHMI HYD. =============================== 5 THE ASSESSEE HAS NOT FILED ANY REVISED RETURN. IF AN ASSESSEE IN THE COURSE OF ASSESSMENT PROCEEDINGS MA KES A CLAIM BEFORE THE AO BACKED BY EVIDENCE AND IF SUC H CLAIM IS ALLOWABLE UNDER THE PROVISIONS OF THE ACT THEN THE AO SHOULD CONSIDER THE ALLOWABILITY OF SUCH CLAIM. THIS IS BECAUSE OF THE FACT THAT THE ASSESSMENT IS A METHOD FOR DETERMINING THE REAL INCOME OF THE ASSESSEE. AT TH E TIME OF MAKING AN ASSESSMENT WHILE THE AO IS REQUIRED T O GUARD THAT THERE IS NO LOSS TO THE REVENUE AT THE SAME TIME THE AO MUST SEE TO IT THAT THE ASSESSEE IS ALS O NOT DEPRIVED FROM GETTING DEDUCTION AND ALLOWANCES WHIC H THE ASSESSEE IS OTHERWISE ENTITLED TO GET UNDER THE PR OVISIONS OF THE ACT. IN THE AFORESAID VIEW OF THE MATTER W E THINK IT JUST AND PROPER TO RESTORE THE MATTER BACK TO TH E AO WITH A DIRECTION TO EXAMINE THE ASSESSEES CLAIM OF DEDUCTION U/S 54F AFTER TAKING INTO CONSIDERATION T HE DOCUMENTS AND EVIDENCES PRODUCED IN THIS BEHALF. I F THE AO FINDS THAT THE ASSESSEES CLAIM OF INVESTMENT IN THE PURCHASE OF NEW HOUSE AT THE HIGHER FIGURE IS SUPPO RTED BY SOUND EVIDENCE THEN HE SHOULD ALLOW THE CLAIM OF THE ASSESSEE IN ACCORDANCE WITH THE PROVISIONS OF SECTI ON 54F OF THE ACT. THE AO SHALL AFFORD A REASONABLE OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE BEFORE COMPLETING TH E ASSESSMENT. ITA NOS. 850 AND 851/HYD/2011 VASAVI RAJU GUTAM & KOTARI VIJAYALAKSHMI HYD. =============================== 6 7. IN THE RESULT BOTH THE APPEALS FILED BY THE REV ENUE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 30 -03-2012. SD/- SD/- (CHANDRA POOJARI) ACCOUNTANT MEMBER SD/- (SAKTIJIT DEY) JUDICIAL MEMBER DATED THE 30 TH MARCH 2012. COPY FORWARDED TO: 1. ACIT CIR-8(1) IT TOWERS HYDERABAD. 2. VASAVI RAJU GUTAM FLAT NO.403 BLOCK -1B SMR VINAY ACROPOLIS KONDAPUR HYDERABAD. 3. SMT. KOTARI VIJAYALAKSHMI FLAT NO.403 VINAY ACROPOLIS KONDAPUR HYDERABAD. 4. CIT (A) VIJAYAWADA. 5. CIT CONCERNED HYDERABAD. 6. THE DR ITAT HYDERABAD JMR* ITA NOS. 850 AND 851/HYD/2011 VASAVI RAJU GUTAM & KOTARI VIJAYALAKSHMI HYD. =============================== 7 ITA NOS. 850 AND 851/HYD/2011 VASAVI RAJU GUTAM & KOTARI VIJAYALAKSHMI HYD. =============================== 8