ASHOK PHILLIPS KOYYURU ,HYDERABAD vs. INCOME TAX OFFICER, WARD-10(1), HYDERABAD

For Assessee : Shri Pawan Kumar Chakrapani, AR For Revenue : Shri Sunil Kumar Pandey, DR Date of Hearing : 31-12-2020 Date of Pronouncement : 05-01-2021 O R D E R PER S.S.GODARA, J.M. :

This assessee’s appeal for AY.2010-11 arise from the CIT(A)-6, Hyderabad’s order dated 01-03-2019 passed in case No.10289/2018-19/A3/CIT(A)-6, in proceedings u/s.144 r.w.s.147 of the Income Tax Act, 1961 [in short, ‘the Act’]. Heard both the parties. Case file perused.

“1. The order of the learned Authorities below in so far as it is against the Appellant is opposed to law, equity, weight of evidence , probabilities and the facts and circumstances in the Appellant's case. 2. The learned Commissioner of Income-tax (Appeals)-6, Hyderabad, is not justified in dismissing the appeal preferred by the Appellant by stating that the appellate authorities are allowed to admit additional

:- 2 -: ITA No. 1027/Hyd/19 grounds of appeal emanating from the facts of the case, even when the Appellant has not raised any additional ground, under the facts and circumstances of the case.

3. The learned Commissioner of Income-tax (Appeals)-6, Hyderabad, ought to have appreciated the fact that the order passed by the learned Assessing Officer is under section 144 r.w.s. 147 of the Act, and there is no evidence placed before the learned Assessing Officer to treat the submissions made before the appellate authorities as additional evidence, under the facts and circumstances of the case.

4. The Appellant denies itself liable to the assessed on a total income of Rs.1,48,64,750/-, under the facts and circumstances of the case.

5. Whether the learned Authorities below are justified in not appreciating the fact that there is no transfer during the impugned assessment year 2010-2011, of the property as per the definition of Transfer under section 2(47) of the Act, under the facts and circumstances of the case.

6. Whether the learned Authorities below are justified in not appreciating the fact that the sale deed executed by the Appellant on 06/0812009, is cancelled by the order of the Honorable Court vide order dated 28/0812018, under the facts and circumstances of the case.

7. Whether the learned Commissioner of Income-tax (Appeals)-6, Hyderabad, is justified in not considering the order dated 28/08/2018, of the Honorable Court treating the sale deed bearing no.1228/2009, dated 06/08/2009, as null and void, under the facts and circumstances of the case”.

3. Learned counsel invited our attention to the CIT(A)’s detailed discussion affirming the impugned long term capital gain addition of Rs.1,48,64,752/- made in the course of assessment framed on 30-03-2016. Learned authorised representative vehemently contended during the course of hearing that both the lower authorities have erred in law and on facts in making the impugned addition in assessee’s hands. He took us to his detailed paper book running into 37 pgs. inter alia containing his written submissions, copy of sale deed dt.06-08-2009, decree sheet dt.28-08-2018 in City Civil Suit

:- 3 -: ITA No. 1027/Hyd/19 O.S.No.27/2018 decreeing the tax payer’s suit filed against M/s.Chadalavada Infratech Ltd., seeking cancellation of the sale deed dt.06-08-2009 forming the basis of the impugned addition.

3.1. The assessee’s only case therefore is that once the sale deed itself stands declared as null and void by way of declaration coming from a civil court, the impugned addition does not survive. The Revenue fails to dispute this clinching development during the course of hearing. We therefore conclude that once the impugned alleged sale deed itself has been declared null and void by way of a civil court’s decree, the same must imply that the impugned transfer dt.06-08-2009 giving rise to the long term capital gain in issues; had never taken place. We conclude that the Assessing Officer as well as the CIT(A) have erred in law and on facts in assessing the long term capital gain to the tune of Rs.1,48,64,752/- in the assessee’s hands. The same is directed to be deleted therefore as a necessary corollary to the civil courts decree hereinabove.

Order pronounced in the open court on 5th day of January, 2021