INDRANI PRASAD,HYDERABAD vs. ACIT, CENTRAL CIRCLE-3(2), HYDERABAD

Before the Tribunal, the learned AR for the assessee submitted that in an identical case in assessee’s own case in dated 8.4.2022, the Tribunal has remanded the matter to the file of the Assessing Officer with the following observations: “2. Coming to the assessee's sole substantive grievance that both the lower authorities have erred in law and on facts in making undisclosed income addition of the alleged capital gains income of Rs.16,66,666/- in the course of assessment dt.27.12.2019 as upheld in the CIT(A)'s order, learned counsel's first and former argument is that the very sale transfer deed herein stands annulled in hon'ble jurisdictional high court's detailed judgment dt. 16.08.2018 and therefore, the impugned addition has no legs to stand. 3. The Revenue's case on the other hand is that the assessee has raised the foregoing argument for the first time before the tribunal which requires afresh factual verification. 4. We have given our thoughtful consideration to the preceding rival submissions and find merit in both parties stands in principle. Case records prima facie suggest that hon'ble jurisdictional high court's common detailed judgment in W.P Nos.1 1032, 11034 and 11037 of 2018 dt. 16.08.2018 hereinabove has indeed quashed the Revenue's action in issue therein. The fact also remains that whether or not the assessee's capital asset

ITA 400 of 2022 Indrani Prasad forming subject matter of transfer herein is covered under the said decision or not indeed requires the Assessing Officer’s factual verification. We thus restore the instant issue back to the learned assessing authority for its fresh adjudication. We make it clear that in case it is found that the impugned transfer itself stands annulled, the impugned addition would be treated to be non-est since having no legs to stand. Ordered accordingly.

“9. We have heard the rival submissions and perused the material on record. In the present case, the sole grievance of the assessee is that both the lower authorities passed an erroneous order by making addition of Rs.18,46,153/- u/s 50C of the Act. Learned AR for the assessee argued that the title of the alleged property vide document No.3867/2016 dated 24.04.2016 was in dispute before the Hon'ble High Court of Telangana and in various other courts and as such the question of applicability of provisions u/s 45 and 50C of the Act will not arise and hence, the impugned addition has no legs to stand. Whereas, learned DR before us contended that the assessee has raised the foregoing argument for the first time before the Tribunal which requires afresh factual verification. In view of the rival submissions of the parties and on perusal of the case record, we feel that the matter requires fresh adjudication for determination of capital gain arising out of the transfer of capital asset, which as per the case of the assessee is covered by the decision of jurisdiction High Court in the case referred W.P. Nos.11032, 11034 and 11037 of 2018 dt. 16.08.2018 hereinabove. The Assessing Officer is directed to record categorical finding with respect to owning of capital asset, if any, by the assessee or not and the effect of decision of jurisdictional High Court on the ownership of the capital asset by the assessee. After deciding the factual issues referred hereinabove, the Assessing Officer shall conduct fresh assessment. In the light Page 3 of 6

ITA 400 of 2022 Indrani Prasad of the above, we restore the instant issue back to the learned assessing authority for its fresh adjudication. Ordered accordingly”. 7. The learned Counsel for the assessee further submitted that similar directions may be issued in the present case also.

“9. On further appeal, Tribunal dismissed the appeal on 02.09.2022 holding as follows: We have given our thoughtful consideration to rival pleadings against and in support of the impugned addition. We find no reason to express our concurrence with this taxpayer's stand. This is for the reason that he has already executed the impugned registered sale deed; treated as a valid transfer u/s.2(47)(1) of the Act which is deemed to have superseded the oral as well as un-reg1stered documents between the vendor and the vendee, as the case may be. And also that whatever are the documents sought to be filed by way of additional evidence, the same only contain pleadings before the respective civil and criminal (supra) which are yet to attain finality. We are unable to treat the assessee or his family members' pleadings or evidence therein as forming the sole basis so far as assessment of his impugned capital gains is concerned. We wish to refer to hon'ble apex court's decision in CIT VS. Balbir Singh Maini (2017 86 taxmann.com 94 rejecting the department's plea seeking to invoke a transfer of registered document, thereby squarely covering the Issue so far as the facts herein are involved as this assessee had not only appeared before the registration authority claiming therein that he had indeed transferred peaceful vacant possession of the relevant capital asset but received the entire corresponding sale consideration. Any prior or subsequent document therein to, oral as well as unregistered one ought to be taken as superseded by the foregoing registered transfer document in issue. We there quote hon'ble apex court's yet another decision CIT K.Y.Pilliah (1967) [63 ITR 411| (SC) to express our concurrence With the CIT(A)'s detailed discussion under challenge. The assessee’s strong endeavor to rely on the foregoing litigation (supra) as well as evidence deserves to be declined in light of his

ITA 400 of 2022 Indrani Prasad registered sale deed dt.20-04-2O09. We accordingly uphold the Impugned long term capital gain addition in assessee’s hands. All the assessee's applications/petitions seeking to admit additional grounds and evidence shall be deemed to have been disposed of in light of our foregoing detailed discussion. We lastly acknowledge that although the instant lis is being decided after a period of 90 days from the date of hearing as per Rule 34(5) of the ITAT Rules, 1963, the same however, does not apply in the covid lockdown situation as per Hon'ble apex Court’s recent directions dated 27.04.2001 in M.A No.665/2021 in SM(W)C No.3/2020 “in Re Cognizance for extension of limitation’ making it clear that in such cases where the limitation period (including that prescribed for institution as well as termination) shall stand excluded from 14th of March, 2021 till further orders in the above terms.

10. Thus, according to the Tribunal, appellant had already executed a registered sale deed which is treated as valid transfer u/s 2(47)(V) of the Act. The other documents relied upon by the appellant were only pleadings before civil and criminal courts, which proceedings were yet to attain finality. Accordingly, Tribunal upheld the addition of long term capital gains made by the Assessing Officer as confirmed by the CIT (A). After holding so, Tribunal noted that the appeal was decided after a period of 90 days from the date of hearing, the same was because of the covid lock down situation and referred to the orders passed by the Supreme Court extending limitation”.

9. However, the learned DR has no objection, if the matter is remanded back to the file of the Assessing Officer for fresh adjudication in the light of the decision of the Coordinate Bench of the Tribunal cited (supra). It was also the contention of the learned DR that while remanding the matter, the above judgment should also be considered by the Assessing Officer.

ITA 400 of 2022 Indrani Prasad Officer for fresh adjudication with the direction to decide a fresh by following the directions earlier issued in the cases refereed herein above . That the Assessing Officer shall consider the judgments quoted by both the assessee and the learned DR.