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Income Tax Appellate Tribunal, HYDERABAD BENCHES “SMC”, HYDERABAD
Before: SMT. P. MADHAVI DEVI
This appeal filed by the assessee is directed against the order of the Commissioner of Income Tax (Appeals)–4, Hyderabad, dated 28-11-2017 for the AY.2008-09.
Brief facts of the case are that, assessee, an individual, along with 25 others, sold landed property in Survey Nos.102 to 109, 120 to 123, 126 to 142, 144 to 154 and 161 vide Document No.9843/07, dt.10-09-2007 consisting of Acres 74.20 equivalent to 2968 guntas situated at Thimmapur Village, Hanamkonda Revenue Mandal and Survey Nos.281 and 282 of Ursu Village of Warangal (RM) for a consideration of Rs.1,11,30,000/-, whereas the property was valued by the Sub-Registrar at Rs.1,25,88,825/- on which stamp duty and registration charges were paid. The Assessing Officer (AO)
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therefore issued a notice u/s.148 of the Income Tax Act [Act] to the assessee on 16-03-2015 to bring the capital gains to tax. He adopted the value u/s.50C of the Act and observed that assessee is eligible for 1/26th share of the sale consideration. Assessee claimed that as per the Islamic Sharia (Muslim Personal Law), her share of eligibility is @ 0.7378%, which works out to Rs.46,291/- and filed the copy of the certificate issued by Government Qazi of Warangal District in support of her contention. AO, however, did not accept the assessee’s contention and treated the 1/26th of the consideration as assessee’s share, i.e., Rs.3,14,360/-. Thereafter, he proceeded to consider assessee’s claim of exemption u/s.54F of the Act. Assessee had claimed that the said amount was used for construction of residential house during the period i.e., Financial Years 2008-09 to 2010-11. The AO, however, observed that the assessee has not furnished any proof that the consideration/capital gains has been deposited in any bank/institution. He therefore disallowed the claim of exemption u/s.54F of the Act.
2.1. Aggrieved, the assessee preferred an appeal before the CIT(A), wo confirmed the assessee’s share to be 1/26th of the total consideration received. However, she directed the AO to verify the assessee’s claim of exemption u/s.54F of the Act. Thus, the appeal was partly allowed. Against the said order of CIT(A), the assessee is in second appeal before the ITAT, raising the following Grounds:
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“1. The order of the learned commissioner of Income-tax (Appeals) is erroneous to the extent it is prejudicial to the appellant. 2. The learned commissioner of Income-Tax (Appeals) erred in confirming the action of the Assessing Office in holding that the share of the appellant in the ancestral property inherited by her is 1/26th of 1,25,88,825 and the amount of capital gain worked out by the Assessing Officer is in order.
The learned commissioner of Income-Tax (Appeals) erred in confirming the action of the Assessing officer in applying the provisions of sec.50C of the I.T.Act.
The learned commissioner of Income-Tax (Appeals) ought to have observed that the appellant is governed by Muslim personal law and she is entitled for 0.7378% share in the property.
Any other ground that may be urged at the time of hearing”.
At the outset, the Ld.Counsel for the assessee has drawn my attention to the Family Tree at Pgs.3 to 6 of the Paper Book, filed by the assessee, according to which, the assessee is the grand-daughter of the original owner i.e., Shri Syed Mohiuddin Pasha Quadri, whose land was sold. He therefore submitted that as per the Muslim Personal Law, ladies get only half of the share which a male shareholder would get and therefore, the assessee’s share has to be calculated as per the Muslim Personal Law and submitted that both the AO as well as the CIT(A) have failed to consider this fact.
Ld.DR, however, supported the orders of authorities below.
Having regard to the rival contentions and material on record, I agree with the contention of Ld.Counsel for the
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assessee that as far as the assessee’s share in the property is concerned, it is to be arrived at as per the Muslim Personal Law. Assessee is the grand-daughter of the original owner of the land and therefore, her share as per the Muslim Personal Law alone has to be taken into consideration. Assessee has filed the certificate issued by Government Qazi of Warangal District and the same should be considered for computation of share of the assessee. I direct the AO accordingly. Ld.Counsel for the assessee submitted that assessee does not have any objection to application of provisions of Section 50C of the Act is considered. Therefore, the ground on this issue i.e., Ground No.3, is rejected, as not pressed. Accordingly, the appeal of assessee is treated as partly allowed.
Order pronounced in the open court on 16th August, 2019
Sd/- (P. MADHAVI DEVI) JUDICIAL MEMBER Hyderabad, Dated 16th August, 2019 TNMM
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Copy to :
S.Q.Nasreen Quadri, Plot No.39, Manovikas Nagar, Opp: NIHM, Bowenpally, Secunderabad. 2. Income Tax Officer, Ward-13(3), Hyderabad.
CIT(Appeals)-4, Hyderabad.
Pr.CIT-4, Hyderabad.
D.R. ITAT, Hyderabad.
Guard File.