SANJAY KUMAR AGARWAL ,HYDERABAD vs. INCOME TAX OFFICER, WARD-4(4), HYDERABAD

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH “SMC”, HYDERABAD (Through Virtual Hearing) BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA No.1420/Hyd/2019 A.Y. 2011-12 Sanjay Kumar Agarwal, VS. Income Tax Officer, Hyderabad. Wrd-4(4), PAN: AIJPA 8621 Q Hyderabad. (Appellant) (Respondent) Assessee by: Shri Hari Agarwal Revenue by: Shri Waseem Ur Rahman, DR Date of hearing: 03/05/2021 Date of pronouncement: 04/05/2021 ORDER This appeal is filed by the assessee against the order of the Ld. CIT(A)-1, Hyderabad in appeal No. 10450/2018-19/ITO 4(4)/CIT(A)- 1/Hyd/2019-20, dated 28/06/2019 passed U/s. 143(3) r.w.s 147 and U/s. 250(6) of the Act for the A.Y. 2011-12. 2. The assessee has raised five grounds in his appeal and they are extracted herein below for reference:- “1. The order passed by the Ld. CIT(A) is against the facts and circumstances of the appellant’s case and is contrary to the provisions of the Act. 2. The Ld. CIT(A) while passing the appellate order ought to have considered the fact that the Ld. A.O. has failed to communicate the reasons for reopening of assessment inspite of the request made for the

same by the appellant. Hence, the reassessment U/s. 147 is bad in law. 3. The Ld. CIT(A) ought to have considered the fact that the notice issued by the Learned A.O. U/s. 148 of the Act is invalid and bad in law, since the approval is required to be obtained from one of them i.e, either from PCIT or from CIT but the same is not specifically mentioned. Accordingly, the assessment order passed based on invalid proceedings U/s. 148 of the Act cannot be sustained. 4. The Hon’ble CIT(A) has erred in confirming the addition made by the Ld. A.O. for Rs. 21,57,905/- under the head income from capital gains. The Ld. CIT(A) has failed to appreciate the fact that there was neither any receipt of sale consideration nor the possession of property was given, which concludes that the transfer as per sec. 2(47) of the Income Tax Act, 1961 has not taken place. 5. The Ld. CIT(A) has not properly appreciated the fact that the learned A.O. has not passed the assessment before the last date of passing the assessment order ie., 31/12/2018 as specified under the IT Act, 1961. The appellant has received the assessment order on 5/1/2019 through the post.” 3. At the outset, the Ld. AR submitted that though the sale deed was executed by the assessee the sale has not concluded because the assessee has not received the sale consideration. The Ld. AR further submitted that on that regard there were disputes and the assessee has filed suit for cancelling the sale deed before the Hon’ble City Civil Court. The Ld. AR argued that these aspects were not properly considered by the ld. Revenue Authorities and on a mechanical basis invoked the provisions of section 50C of the Act and made addition in the hands of

the assessee. It was therefore pleaded that the matter may be remitted back to the file of the Ld. AO thereby affording one more opportunity to the assessee of being heard to justify his stand before the Ld. Revenue Authorities. The Ld. DR on the other hand argued in support of the orders of the Ld. Revenue Authorities and prayed for confirming the same. 4. After hearing both sides, we find some merit in the case of the assessee. If the assessee has not received the sale consideration from the purchaser, then obviously it cannot be stated that the sale has taken place. Therefore, if the submission of the Ld. AR is genuine and true then, it would not be necessary to invoke the provisions of section 45 & 50C of the Act in the case of the assessee. Hence, in the interest of justice, we hereby remit the entire matter back to the file of the ld. AO for de-novo consideration. 5. In the result, appeal of the assessee is allowed for statistical purposes.

Pronounced in the open Court on the 04th May, 2021.

Sd/- (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER Hyderabad, Dated: 04th May, 2021.

OKK

Copy to:- 1) Sanjay Kumar Agarwal, 3-5-45, Ramkote, Hyderabad. 2) Income Tax Officer, Ward-4(4), IT Towers, AC Guards, Masab Tank, Hyderabad. 3) The CIT (A)-1, Hyderabad. 4) The Pr. CIT-1, Hyderabad. 5) The DR, ITAT, Hyderabad 6) Guard File