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These are the latest case laws decided by various Income Tax Appellate Tribunals (ITAT) of India on Income Tax which have been published recently. The case laws are open for discussion and we invite expert comments from our members on its applicability and effect on relevant issues.

10-05-2019, Dr. Syed Rahmatullah, Section 53A, 17, 49, Tribunal Bangalore

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3 months 6 days ago #9431 by amit
Section - 53A, 17, 49, 54, 55
Order Date - 10-05-2019
Favouring - Assessee
Court - Tribunal Bangalore
Appellant - Dr. Syed Rahmatullah Azizullah
Respondent - ITO
Justice - ARUN KUMAR GARODIA AM
Citation - 519Taxpundit194
Appeal No. - ITA Nos. 240 & 241/Bang/2019
Asstt. Year - 2010-11 & 2011-12

Order

PER : A.K. Garodia

Both these appeals are filed by the assessee which are directed against two separate orders of ld. CIT (A), Kalaburagi both dated 30.11.2018 for Assessment Years 2010-11 and 20 1-12. Both these appeals were heard together and are being disposed of by way of this common order for the sake of convenience.

2. The grounds raised by the assessee for Assessment Year 2010-11 in ITA No. 240/Bang/2019 are as under.

“1. The learned Assessing Officer had erred in passing the order in the manner passed by him and the learned CIT (A) has erred in confirming the same. The orders passed being bad in law are liable to be quashed.

2.1 In any case the assessing officer had erred in re-opening the assessment by issuing the notice u/s. 148 of the Income Tax Act, 1961 and the learned CIT (A) has erred in confirming the reopening.

2.2 The condition precedent for issue of re-opening being not present, the re-opening is bad in law and therefore the impugned order passed/confirmed in consequence thereto being bad in law and liable to be quashed.

3. In any case, the assessing officer and the learned CIT(A) have not properly appreciated the facts and circumstances of the case. On proper appreciation of the facts it would be clear that the assessing officer has erred in not considering that the transfer of property took place way back in 1995 and though sale deeds were executed, there were no further transfer of property as per the sale deeds.

4.1 The learned assessing officer and the learned CIT(A) have erred in not appreciating the fact that

a. The appellant had not received any amount / consideration during the previous year relevant to year under appeal.

b. That the possession of the property was handed by the appellant over way back in 1995.

c. That the property was in the possession of the transferee much prior to the executing of sale deeds. and the transferee had even started construction on the subject property much before the execution of sale deed.

4.2 The assessing officer and the leaned CIT(A) have not verified from the purchaser in this so called sale deeds as to whether they have paid this money as stated in sale deed and whether the same is recorded in its books of account of purchaser as per sale deeds.

4.3 Therefore considering the circumstance of the case and circumstantial evidence it can never be said that there was any transfer for computing he capital gains in the year under appeal and therefore the addition as made confirmed is to be deleted.

5. In any case and without prejudice the assessing officer has erred in holding that stamp duty value is to be taken as full value of consideration and the learned Commissioner has erred in confirming the same. The provision of Sec. 50C(1) of the Income Tax Act, 1961 would not be attracted in the case. In any case adopting the stamp duty value u/s. 50C(I) without compiling with all the legal formalities is also bad in law and therefore the adoption of such deemed consideration is to be deleted.

6. In any case and without prejudice the assessing officer has erred in holding and adopting the cost as NIL and the CIT(A) have erred in confirming the same. Even as per law, the cost to the original owner should have been adopted.

7. The appellant denies the liability to pay interest u/s 234A,234B and 234D of the Act. The interests having been levied erroneously are to be deleted.

8. In view of the above and on other grounds to be adduced at the time of hearing, it is requested that the impugned orders be quashed or at least the addition made to the income returned be deleted, income as returned by the appellant be accepted and interest levied u/s 234A, 234B and 234D of the Act be also deleted.”

3. Similarly, the grounds raised by the assessee for Assessment Year 2011-12 in ITA No. 241/Bang/2019 are as under.

“1. The learned Assessing Officer had erred in passing the order in the manner passed by himand the learned CIT (A) has erred in confirming the same. The orders passed being bad inlaw are liable to be quashed.

2.1 In any case the assessing officer had erred in re-opening the assessment by issuing thenotice u/s. 148 of the Income Tax Act, 1961 and the learned CIT (A) has erred inconfirming the reopening.

2.2 The condition precedent for issue ofre-opening being not present, the re-opening is bad inlaw and therefore the impugned order passed/confirmed in consequence thereto being badin law and liable to be quashed.

3. In any case, the assessing officer and the learned CIT(A) have not properly appreciated thefacts and circumstances of the case. On proper appreciation of the facts it would be clear that the assessing officer has erred in not considering that the transfer of property tookplace way back in 1995 and though sale deeds were executed, there were no furthertransfer of property as per the sale deeds.

4.1 The learned assessing officer and the learned CIT(A) have erred in not appreciating thefact that

a. The appellant had not received any amount / consideration during the previous yearrelevant to year under appeal.

b. That the possession of the property was handed by the appellant over way back in1995.

c. That the property was in the possession of the transferee much prior to theexecuting of sale deeds. and the transferee had even started construction on thesubject property much before the execution of sale deed.

4.2 The assessing officer and the leaned CIT(A) have not verified from the purchaser in this socalled sale deeds as to whether they have paid this money as stated in sale deed and whether the same is recorded in its books of account of purchaser as per sale deeds.

4.3 Therefore considering the circumstance of the case and circumstantial evidence it can never be said that there was any transfer for computing the capital gains in the year underappeal and therefore the addition as made / confirmed is to be deleted.

5. In any case and without prejudice the assessing officer has erred in

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