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O R D E R Per Laliet Kumar, J.M. The captioned five appeals filed by different assessees are against the separate orders passed by the learned Commissioner of Income Tax (Appeals) – 11, Hyderabad for the assessment year 2017-18.
Before us, at the outset, both the parties submitted that the facts and issues are identical in all the appeals except the amounts involved. In view of the aforesaid submissions, we, for the sake of convenience proceed to dispose of all the captioned appeals by a consolidated order but however, refer to the facts in .
3. In all the appeals, though, the assessee has raised as many as 21 grounds, but its sole controversy is with respect to making of addition of Rs.18,46,153/- as undisclosed capital gains by the Assessing Officer.
The brief facts of the lead appeal are that assessee has filed its original return of income for A.Y. 2017-18 on 31.03.2018 declaring loss of Rs.1,36,71,286/-. Subsequently, search and seizure operations u/s 132 of the IT Act, 1961 were carried out in the case of M/s. Goldstone Infratech Ltd. And its other associated companies on 09.11.2017. The case had been centralized and notice u/s 153A had been issued to the assessee and in response, the assessee filed its return of income for A.Y. 2017-18 on 25.09.2019 declaring loss of Rs.1,36,71,286/-. Thereafter, the assessment was completed u/s 143(3) r.w.s. 153C of the I.T. Act by making an addition of Rs.18,46,153/- as undisclosed capital gains accruing on account of sale of land.
5. Feeling aggrieved with the order of AO, assessee carried the matter before ld.CIT(A), who partly allowed the appeal of assessee.
Before us, ld. AR for the assessee submitted that in an identical case i.e. Smt. Indrani Prasad Vs. ACIT (ITA No.402/Hyd/2021 dt.08.04.2022), the Tribunal has remanded the matter to the file of 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.
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.11032, 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 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.
This assessee's appeal is allowed for statistical purposes in above terms.”
Ld.AR further submitted that similar directions may be issued in the present cases.
ld. DR for the Revenue has raised no objection for remanding the matter back to the file of Assessing Officer for fresh adjudication in the light of the decision of Co-ordinate Bench of the Tribunal in the case of Smt. Indrani Prasad (supra).
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. Ld.AR for the assessee argued that the title of the alleged property vide document no.3867/2016 dt.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, ld. 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 afresh assessment. In the light of the above, we restore the instant issue back to the learned assessing authority for its fresh adjudication. Ordered accordingly.
In the result, the appeal of assessee in is allowed for statistical purposes.
As far as the other three appeals of assessee are concerned, in view of the submission of both the parties that the issues raised in ITA 388/Hyd/2021 are identical to the other appeals, we for the reasons stated hereinabove while deciding the appeal in ITA 388/Hyd/2021 and for similar reasons, allow the other appeals i.e, ITA 389 to 392/Hyd/2021 for statistical purposes.
To sum up, all the captioned appeals are allowed for statistical purposes. A copy of this common order be placed in respective case files.
Order pronounced in the Open Court on 19th October, 2022.