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Income Tax Appellate Tribunal, Hyderabad ‘ A ‘ Bench, Hyderabad
Before: Shri R.K. Panda & Shri K. Narasimha Chary
Per R.K. Panda, A.M The above 3 appeals filed by the assessee are directed against the separate orders dated 29.07.2022 of the learned CIT (A)- 11, Hyderabad relating to A.Ys. 2011-12, 2013-14 & 2015-16 respectively. Since identical grounds have been raised by the assessee in these 3 appeals, therefore, for the sake of convenience, these were heard together and are being disposed of by this common order.
Facts of the case, in brief, are that the assessee is an individual and filed his return of income u/s 139(1) of the I.T. Act on 9.7.2011 declaring total income of Rs.1,24,014/-. Subsequently, the case was reopened and the assessment u/s 143(3) r.w.s. 147 of the I.T. Act was completed on 29.11.2018 wherein addition of Rs.13,67,30,000/- was made being capital gain on account of sale of land in Survey No.172 of Hydernagar Village vide document No.4354/2011 dated 26.08.2010. The assessee preferred an appeal before the learned CIT (A) who allowed the appeal in favour of the assessee on merit. Aggrieved by the order of the learned CIT (A), the Revenue preferred appeal before the Tribunal and the Tribunal vide order dated 8.9.2021 dismissed the appeal filed by the Revenue.
Subsequently, a search and seizure operation u/s 132 of the I.T. Act was conducted in the case of M/s. Goldstone Infratech Ltd and its other associated companies on 9.11.2017. The residential premises of the assessee was also covered u/s 132 of the I.T. Act. In response to notice u/s 153A, dated 23.5.2019, the assessee filed the return on 5.9.2019 declaring total income of Rs.1,24,014/-. The Assessing Officer completed the assessment u/s 143(3) r.w.s. 153A on 26.11.2019 determining the total income of the assessee at Rs.70,42,84,340/- by making the following additions by invoking the provisions of section 50C of the I.T. Act:
S.No Addition Amount 1. Capital gains in respect Res.48,40,00,000 of sale of land vide Doc. No.5188/2010 dated 26.08.2010 2 Capital gains in respect Rs. 8,34,30,330 of sale of land vide several documents 3 Capital gains in respect Rs.13,67,30,000 of sale of land vide Doc. No.4354/2011 dated 26.08.2010 Total Rs.70,41,61,330
The assessee preferred appeal before the CIT (A) who vide order dated 29.7.2022 partly allowed the appeal filed by the assessee by deleting the addition of Rs.13,67,30,000/-. He however, sustained the remaining two additions. The relevant observation of the learned CIT (A) reads as under:
Aggrieved with such order of the learned CIT (A), the assessee is in appeal before the Tribunal by raising the following grounds: “1. The Ld. CIT(A) erred in partly allowing the appeal. a. The Ld. CIT(A) erred in dismissing ground nos. 3, 6 & 7 taken before him. b. The Ld. CIT(A) erred in holding that the sale deeds found during the course of search would surely constitute incriminating material dehors the fact that the sale deeds are public documents which are available on public domain. c. The Ld. CIT(A) ought to have appreciated that there is no seized material based on which all the additions are made. d. The Ld. CIT(A) ought to have deleted all the additions made in the assessment made u/s 143(3) r.w.s. 153A of the Act on the ground that they are not based on any seized material. e. The Ld. CIT(A) ought to have appreciated that the assessment for the year under consideration is an "unabated assessment". f. The Ld. CIT(A) ought to have appreciated that an addition which is not based on seized material, can be considered to be made in the assessment completed u/s 143(3) r.w.s. 153A of the Act only when the assessment is abated. g. The Ld. CIT(A) ought to have appreciated that since the time for issue of notice u/s 143(2) of the Act has already lapsed on 31.03.2012 in the appellant’s case, the assessment cannot be said to be an "abated assessment". h. The Ld. CIT(A) ought to have appreciated that for the assessment under consideration i.e., assessment year 2011-12, notice u/s 143(2) of the Act could be given only within the time specified u/s 139(4) of the Act i.e., on or before 31.03.2012 and that, therefore, the assessment for the assessment year 2011-12 is an unabated assessment. Page 28 of 41
i. The Ld. CIT(A) ought to have appreciated that since the impugned assessment is unabated, all the additions made in the assessment which are not based on any seized material, are void ab initio. j. The Ld. CIT(A) ought to have appreciated that by no stretch of imagination, the impugned registered documents based on which all1 the additions have been made u/s 50C of the Act, can be taken as the material seized in the search. k. The Ld. CIT(A) ought to have appreciated that the entire information with regard to the impugned documents is available on regard not only with the Assessing Officer but also in public domains much earlier to the date of search. (3) a. Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) erred in confirming the addition of Rs.48,40,00,000/- made u/s 50C of the Act. b. Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) erred in dismissing ground nos.9, 13, 14, 17 to 25 taken before him. (4) a. Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) erred in| dismissing ground nos.18, 19, 20, 21, 23, 24, 25 taken before him. b. Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) erred in confirming the addition of Rs.8,34,30,330/- made u/s 50C of the Act. (5) a. Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) erred in | appreciating that the transaction with regard to the document | no.5188/2010 has already been offered for taxation by the Company viz., Infraventures Limited in its returns of income for the assessment a. years 2009-10 and 2010-11 which has been accepted by the Ld. CIT(A)- 11, Hyderabad in his appeal order dated 03.08.2020 in respect of the | order u/s 143(3) r.w.s. 147 in the appellant's case for the same assessment year 2011-12. b. Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) erred in appreciating that the appellant has transferred the impugned land to M/s. Inn Tack Control Pvt. Ltd., vide document no.5188/2010 dated 26.08.2010 in his capacity of General Power Attorney Holder and not in his individual capacity. c. Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) erred in appreciating that the sale consideration with regard to the impugned land has already been offered to tax by the real transferor, M/s. Trinity Infraventures Limited for the assessment years 2009-10 and 2010-11. d. Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) erred in | appreciating that when the sale consideration in respect of document no.5188/2010, has been offered to tax for the assessment years 2009- Page 29 of 41 10 and 2010-11, by M/s. Trinity Infraventures, taxing of the sale consideration again in the hands of the general power of Attorney holder, the appellant, tantamounts to double laxation. 6.Without prejudice to ground nos. 2(a) to 2(k), the Lal. CIT(A) ought to have appreciated that there is no valid transfer of the impugned property because the title of the impugned lands in Sy.No.172 of Hydernagar Village and Sy.No.78 of Hafezpet is the subject matter of Civil Suit in C.S.No.14/1958 in Telangana High Court where in the property is shown at item no.37 &38 of Schedule IV (A) of the Plaint Schedule Properties.
7. Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) ought to have appreciated that the title of the impugned property is in dispute as on date vide Gazette Notification of Govt. of Telangana in G.0. M.S. No.863 dated 26.09.2013.
Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) erred in being silent on the appellant's argument that the capital gains arising out of the sale of the impugned land has already been taxed in the hands of M/s. Trinity Infraventures Limited for the assessment years 2009-10 and 2010-11. a. Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) having extracted certain paras of the Bombay High Court order in Suit No.643 of 2014 dated 28.04.2017 where in the appellant herein, was none other than the holder of Power of Attorney and not the owner of the impugned land, has erred in holding that it clearly implies that the appellant was the owner of the subject lands in legal terms. b. Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) erred in holding that the appellant is supposed to enjoy all the benefits and incur all the liabilities with regard to the impugned properties. c. Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) erred in holding that the taxability and its liability will also be in the hands of the appellant. d. Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) erred inholding that the appellant is the owner of the impugned properties having the possession and has also decided to sell to the person it desires and also decides the consideration in respect of the properties. e. Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) erred in holding that the appellant is held as the owner of the property within the meaning of Income Tax Act and the said transfer of the properties will be liable for capital gains in the hands of the appellant as per the manner provided in the Act and this is not a case of holding a simple Power of Attorney.
f. Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) erred in observing that it is not a simple GPA but effectively an ownership within the meaning and intent of the Income Tax Act and all the benefits have gone to the appellant. g. Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) erred in observing that the appellant has been vested with all the rights for the properties mentioned in Schedule II of the impugned documents.
10. Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) erred in holding that the transfer of the impugned properties will be liable for capital 1gains in the hands of the appellant. 11. a. Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) erred in holding that it is fair to conclude that the appellant has accepted the valuation of the impugned properties. b. Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) ought to have appreciated that the Assessing Officer has not referred the valuation to the DVO as stipulated in section 50C(2) of the Act. c. Without prejudice to ground nos. 2(a) to 2(k), the Ld. CIT(A) ought to have appreciated that if the stamp duty valuation is higher than the consideration received, the Assessing Officer is obliged to refer the valuation to the DVO even if there is no request made by the assessee in this regard.
The appellant may, add or alter or amend or modify or substitute or delete and/or rescind all or any of the grounds of appeal at any time before or at the time of hearing of the appeal.”
Ground of appeal No.1 & 12 being general in nature are dismissed.
The learned Counsel for the assessee did not press Ground of appeal No.2 for which the learned DR has no objection. Accordingly, ground of appeal No.2 is dismissed as not pressed.
8. The remaining grounds relate to the order of the learned CIT (A) in sustaining the addition of Rs.48,40,00,000/- and Rs.8,34,30,330/- respectively.
9. So far as the first addition of Rs.48,40,00,000/- is concerned, the learned Counsel for the assessee submitted that the transfer of land in Survey No.172 of Hydernagar Village vide document No.5188/2010 dated 26.08.2010 has been made in his capacity of “General Power of Attorney holder” and not in the capacity of real owner. Similarly, the transfer of land in survey No.78 of Hafeezpet vide several documents has also been made by the assessee in his capacity as “GPA holder” and not in the capacity of real owner. The above fact is not disputed by the Revenue authorities. Therefore, the income arising from transfer of all the above-mentioned properties by the assessee, who is a mere GPA holder, cannot be taxed in the hands of the assessee. For the above proposition, he relied on the following decisions: i) JCIT vs. D. Seshagiri Rao (2018) 89 Taxmann.com 3 (Hyd. Trib) ii) Suraj Lamps & Industries (P) Ltd vs. State of HNaryana (2012) 340 ITR 1 (S.C)
The learned Counsel for the assessee drew the attention of the Bench to the order of the CIT (A) in assessee’s own case for the same A.Y in the first round of litigation vide order passed u/s 143(3) r.w.s. 147 of the Act dated 29.11.2018 wherein the CIT (A) has observed as under:
“5.3 On consideration of the above, it is seen that the above consent terms has not conferred any right as owner to the assessee. The consent terms reiterate that the assessee is GPA holder and remains so. The finding of the Assessing Officer that in terms of the consent terms the appellant is conferred ownership rights is not established. The undertaking of appellant to pay arrears of taxes cannot be considered as transfer of ownership. At the best the appellant liable to reimburse the taxes, if any, payable on Page 32 of 41 account of transactions in the scheduled property. In view of the above, the appellant is only GPA holder in respect of the above property and the capital gains arising out of the transaction is not assessable in appellant’s hands. The addition made is accordingly, deleted”.
He submitted that when the Revenue filed appeal against the order of the learned CIT (A), the Tribunal vide dated 8.9.2021 at para 5 of the order has upheld the order of the learned CIT (A) by holding that the income arising from transfer of property by the GPA holder would not be taxable in the hands of the assessee. He accordingly submitted that since the issue stands covered in favour of the assessee by the decision of the Hon’ble Supreme Court and by the decision of the Coordinate Bench of the Tribunal in assessee’s own case to the proposition that the income arising from transfer of property by the GPA holder would not be taxable in the hands of the GPA holder, therefore, both the additions made by the Assessing Officer i.e. Rs.48,40,00,000/- and Rs.8,34,30,330/- u/s 50C of the Act do not survive and is liable to be deleted.
12. Without prejudice to the above submission, the learned Counsel for the assessee submitted that the sale proceeds have already been offered to tax in the hands of M/s. Trinity Infraventures Ltd in the earlier A.Ys i.e. in the A.Y 2009-10 and 2010-11 which is discernible from the order of the learned CIT (A)-11 Hyderabad vide his order dated 3.8.2020 in the case of Trinity Infraventures Ltd. He drew the attention of the Bench to the order of the learned CIT (A) in the case of M/s. Trinity Infraventures Ltd for the A.Y 2010-11 copy of which is placed at page 29 to 91 of the Paper Book, and submitted that the learned CIT (A) has clearly accepted that the sales in question have Page 33 of 41 already been taxed in the hands of M/s. Trinity Infraventures Ltd for the A.Y 2009-10 in respect of total consideration of Rs.155.00 crores in respect of the total land sold in the group case to the extent of 34 acres 61 guntas of survey No.172 at Hydernagar in A.Y 2009-10 and 2010-11. He accordingly submitted that addition of the same will amount to double taxation and therefore, the same should be deleted.
The learned Counsel for the assessee drew the attention of the Bench to the extracts of the sale deed wherein it is clearly mentioned that the sale consideration so made is in favour of Goldstone Exports Ltd (presently known as Trinity Infraventures Ltd).
“That a total sale consideration of Rs.10.00 crores (Rupees Ten Crores only) has been paid to the Vendor’s Nominee hereto vide demand drafts bearings Nos.072381, 072382 and 072383 each of Rs.2,50,00,000/- (Rupees Two crores fifty lakhs only) drawn in favour of the Nominee of the Vendor hereto issued by Axis Bank Ltd, R.P. Road Branch, Secunderabad. The payments so made are made in favour of M/s. Goldstone Exports Ltd., the nominee of the vendor herein with the explicit consent and also at the instructions and request of the Vendor herein towards the full and final sale consideration due to it and the receipt of which is admitted and acknowledged by the Vendor hereto as well as the said nominee”.
Referring to page 13 of the sale deed, he drew the attention of the Bench to the status of the assessee according to which Vendor M/s. Cyrus Investment is represented by his GPA Dr. P.S. Prasad i.e. the assessee. He accordingly submitted that since the assessee is the GPA holder and not the real owner of the property and since the sale proceeds have already been offered to tax in the hands of M/s Trinity Infraventures Ltd for the earlier Page 34 of 41 A.Y i.e. A.Y 2009-10 and 2010-11, therefore, taxing the same again in the hands of the assessee for the A.Y 2011-12 is not correct and should be deleted.
So far as the addition of Rs.8,34,30,330/- is concerned, he submitted that the transfer of land in Survey No.78 of Hafeezpet vide several documents has also been made by the assessee in capacity of GPA holder and not in capacity of real owner. He further submitted that some portion of the land has already been occupied/encroached by villagers and whatever amount has been received by the assessee has been offered as “other income” and accordingly the taxes have been paid. Therefore, no addition is called for.
The learned DR, on the other hand, heavily relied on the order of the learned CIT (A). He submitted that the learned CIT (A) has given justifiable reasons while sustaining the addition of Rs.48,40,00,000/- and Rs. 8,43,30,330/- respectively. Since he has passed an exhaustive order giving reasons while sustaining the addition, therefore, the same should be upheld and the grounds raised by the assessee on this issue should be dismissed.
We have heard the rival arguments made by both the sides, perused the orders of the Assessing Officer and the CIT (A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the Assessing Officer in the assessment order passed u/s 143(3) r.w.s. 153A of the Act made three additions on account of sale of land by the assessee. The first addition of Rs.48,40,00,000/- on account of sale of land vide document No.5188/2010 dated Page 35 of 41 26.8.2010 was made by him being sale of land on agreed consideration of Rs.10,00,00,000/- as against the registered value of the property at Rs.48.40 crores and the assessee did not provide any details with regard to the cost price of the land and also any expenses incurred for the sale of the property. He, therefore, invoking the provisions of section 48 r.w.s 50C r.w.s. 2(47) of the I.T. Act made addition of Rs.48,40,00,000/- to the total income of the assessee. Similarly, the Assessing Officer made another addition of Rs.8,34,30,330/- being the sale of land vide several documents for a consideration of Rs.8,34,30,330/- which were purchased for Rs.20.00 lakhs under CS 14, as per GPA dated 7.1.2005on the ground that here also the assessee did not produce any details regarding the cost price of the land and any expenses incurred. So far as the 3rd addition is concerned i.e. the addition of Rs.13,67,30,000 in respect of sale of land vide document No.4354/2011 dated 26.8.2010, we find the learned CIT (A) deleted the same on the ground that the same addition was already made in the assessment u/s 147/143(3) which was completed before the 153A proceedings and the Revenue is not in appeal and therefore, we are not concerned with the same.
So far as the first two additions are concerned, the learned CIT (A) has sustained both the additions, the reasons of which have already been reproduced in the preceding paragraph. It is the submission of the learned Counsel for the assessee that since the assessee sold the above lands in his capacity as GPA Holder, therefore, in view of the various decisions cited by him and in view of the decision of the Tribunal in assessee’s own case for the same year in the quantum proceedings u/s 147/143(3) no amount is to be taxed in the hands of the assessee. It is also his Page 36 of 41 alternate contention that charging to tax in the hands of the assessee will lead to double taxation in the hands of the assessee since the sale proceeds have already been offered to tax in the hands of M/s. Trinity Infraventures for the earlier A.Ys i.e. 2009- 10 and 2010-11 which has been recorded by the CIT (A) in his order dated 3.8.2020 in the case of M/s. Trinity Infraventures.
We find the learned CIT (A) in the instant case has given finding (i) that the said properties were sold by the assessee on the basis of General Power of Attorney Holders which in fact give the assessee factually full ownership and no sale consideration was required to be given to M/s. Cyrus Investments Ltd, (ii) that the possession was in the hands of the assessee which was also transferred to the transferee, (iii) that the titles were already conferred on Mr. PS Prasad by the Hon'ble High Court at Hyderabad vide various orders wherein Mr. PS Prasad i.e. the assessee had to move to the Court on account of termination notices by M/s. Cyrus Investments Ltd (iv) that since the assessee was in the possession of the land and also disposed of the property at will and decided the value and not a single rupee has been paid out of any of these transactions to M/s. Cyrus Investment Ltd, then the natural corollary is that the assessee has enjoyed all the benefits and therefore, the liability of taxation will arise in the hands of the assessee.
However, in our opinion, if the company which has received the payments from the buyers at the instance of the assessee, has already paid taxes on account of the sale of the aforementioned properties, then in our opinion, there is no Page 37 of 41 question of taxing the same in the hands of the assessee. We further find under same analogy the addition of Rs.13,67,30,000/- added by the Assessing Officer was deleted by the CIT (A) in the first round of litigation inter alia by observing as under:
“5.3 On consideration of the above, it is seen that the above consent terms has not conferred any right as owner to the assessee. The consent terms reiterate that the assessee is GPA holder and remains so. The finding of the 'AO' that in terms of the consent terms the appellant is conferred ownership rights is not established. The undertaking of appellant to pay arrears of taxes cannot be considered as transfer of ownership. At the best the appellant liable to reimburse the taxes if any payable on account of transactions in the scheduled property. In view of the above, the appellant. is only GPA holder in respect of the above property and the capital gains arising out of the transaction is not assessable in appellant's hands. The addition made is accordingly, deleted".
We find the Tribunal in appeal filed by the Revenue dismissed the appeal by observing as under: “5. The first and foremost arguments between the parties before us is qua assessment of the impugned un-disclosed income in assessee's hands. The Revenue's case in light of the assessment findings is that the assessee had been declared as the original owner of the property in hon'ble Mumbai high court in suit No.643/2014, dt.28-04-2017. It fails to rebut the clinching fact that the CIT(A) has already examined the terms of dispute in the said civil suit wherein this appellant has been held as a GPA holder only than having title of the asset. We note in this clinching factual backdrop that the learned co- ordinate bench's order in JCIT Vs. V.D.Seshagiri Rao (2018) [89 taxmann.com 3 (ITAT Hyd) holds that the income arising from transfer of property by the GPA holder would not be taxable in his hands. We therefore affirm the CIT(A)'s action deleting the impugned addition for this precise reason alone.
We therefore, find merit in the argument of the learned Counsel for the assessee that since the impugned sale proceeds have already been offered to tax in the hands of M/s Trinity Infraventures for the earlier A.Ys, therefore, taxing the same in the hands of the assessee in his capacity as GPA Holder will Page 38 of 41 amount to double taxation. We therefore, deem it proper to restore the issue to the file of the Assessing Officer with a direction to re- adjudicate the issue keeping in mind the decision of the Tribunal in the case of the assessee regarding the applicability of provisions of section 50C to GPA Holder while adjudicating the issue of Rs.13,67,30,000/- in the first round of litigation. He shall also consider the argument of the learned Counsel for the assessee that tax has already been paid by M/s Trinity Infraventures on this very sale of land. Needless to say, the Assessing Officer shall give due opportunity of being heard to the assessee. The grounds raised by the assessee are accordingly allowed for statistical purposes.
So far as the 2nd addition is concerned, i.e., Rs.8,34,30,330/-, it is the submission of the learned Counsel for the assessee that he has sold the above property in his capacity as GPA holder and not in capacity of real owner and therefore, provisions of section 50C are not applicable. Since the above issue also has got a bearing in the light of our finding in the preceding paragraph, therefore, grounds relating to this issue are also restored to the file of the Assessing Officer with similar direction. The Assessing Officer shall re-adjudicate the issue after giving due opportunity of being heard to the assessee. We hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes.
In the result, appeal filed by the assessee is partly allowed for statistical purposes. & 392/Hyd/2022 – A.Y 2013-14 & 2015-16 25. After hearing both the sides, we find the grounds raised by the assessee in the above two appeals are identical to the grounds raised in A.Y 2011-12 except the quantum. We have already decided the issue and the grounds raised by the assessee are allowed for statistical purposes. Following similar reasonings, the effective grounds raised in the above two appeals are also allowed for statistical purposes with similar directions.
In the result, all the 3 appeals filed by the assessee are partly allowed for statistical purposes.
SA Nos.20 to 22/Hyd/2022
The assessee through these stay applications has requested for stay of realization of outstanding demand. Since the appeals of the assessee have been heard and the matter is restored back to the file of the Assessing Officer, therefore, the stay applications have become infructuous. Accordingly, all the 3 Stay Applications filed by the assessee are dismissed.
To sum up, all the 3 appeals filed by the assessee are partly allowed for statistical purposes and the 3 SAs filed by the assessee are dismissed.