Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, VISAKHAPATNAM BENCH, VISAKHAPATNAM
Before: SHRI V. DURGA RAO & SHRI D.S. SUNDER SINGH
आदेश / O R D E R
PER D.S. SUNDER SINGH, Accountant Member:
This appeal filed by the assessee is directed against order of the
Commissioner of Income Tax (Appeals)-2, Visakhapatnam vide ITA
No.38 & 39/2015-16/CIT(A)/2/W-2/SKLM/2016-17 dated 1.9.2016 for
the assessment year 2008-09.
ITA No.495/Vizag/2016 Kilim Pydireddy (Indl), Srikakulam 2. The assessee has raised following grounds of appeal:
The order of the learned Commissioner of Income Tax (Appeals)-2, Visakhapatnam is contrary to the facts and also the law applicable to the facts of the case. 2. The learned Commissioner of Income Tax (Appeals) ought to have held that the assessment done is beyond the scope of S.147 of the Income Tax Act, 1961. 3. Without prejudice to the above, a. The learned Commissioner of Income Tax (Appeals) erred in denying the existence of HUF and in upholding the assessment of capital gains in the individual status of the appellant. b. The learned Commissioner of Income Tax (Appeals) is not justified in sustaining the action of the assessing officer in computing the capital gains under the provisions of S.50C of the Act at Rs 28,71,214/- as against Rs.22,55,114/admitted by the appellant in HUF status. 4. Any other ground that may be urged at the time of appeal hearing.
Ground Nos.1 & 4 are general in nature, which does not require
specific adjudication.
Ground No.2 is related to the validity to reopening of assessment
which is not pressed by the assessee, hence this ground is dismissed as
not pressed.
Ground No.3 is related to the assessment of HUF income in
individual status and taxing the capital gains by invoking the provisions
u/s 50C of the Act. In this case, the assessee filed return of income in
the capacity of HUF admitting capital gains of ` 22,55,114/- on
31.7.2008. During the relevant assessment year, the assessee had sold
a property consisting of vacant house site admeasuring 444.44 Sq.yds. 2
ITA No.495/Vizag/2016 Kilim Pydireddy (Indl), Srikakulam with survey No.2 of Maddilapalem and Survey No.7 of Resapuvanipalem
vide registered document Nos.3413/07, 3414/07 & 3415/07 dated
30.4.2007 for a total consideration of ` 62,67,000/- and the market
value of the same was ` 66,69,000/- in HUF status. Since the assessee
has not filed the return of income in the individual status, the assessing
officer reopened the assessment u/s 147 of the Act by issuing notice u/s
148 of the Act and held that the impugned property was belonging to
the assessee in individual capacity and the property was not acquired by
the HUF, hence, held that the admission of income by the assessee in
HUF status is incorrect. The AO was of the view that the income
resulting in sale of immovable property should have been admitted as
capital gains in the hands of the assessee in individual capacity.
Accordingly, the A.O. reopened the assessment and completed the
reassessment by invoking the provisions of section 50C of the Act and
completed the assessment on total income of ` 36,26,725/- in individual
capacity but did not allow the credit for the taxes paid in HUF status.
Assessee went on appeal before the CIT(A) and the Ld. CIT(A)
upheld the assessment made by the A.O. in individual capacity and
directed the A.O. to give credit for the taxes paid in HUF status while
determining tax liability in individual hands. However, while giving
effect to the consequential order, the Ld. A.O. did not allow the credit as
ITA No.495/Vizag/2016 Kilim Pydireddy (Indl), Srikakulam per the dates of payments of the tax in HUF status and the credit was
allowed in the consequential order which resulted in huge tax burden
due to interest in the case of individual. Hence, the assessee is
aggrieved and filed appeal before this Tribunal.
During the appeal hearing, the Ld. A.R. of the assessee supported
the return of income filed in HUF capacity and argued that the
assessment should be made in the hands of the HUF but not in the
hands of individual, since the property was acquired by the father of the
assessee in HUF status. Per contra the Ld. D.R. supported the order of
the lower authorities.
We have considered the arguments of both the parties and
perused the material placed on record and gone through the orders of
the authorities as well as returns filed by the assessee in the capacity of
HUF as well as individual. The assessee has paid the taxes in HUF
capacity on various dates. For a query from the bench, the Ld. A.R.
submitted that the assessee has paid advance taxes in HUF status, if the
same is allowed credit in the hands of the individual while determining
the tax liability he would not press the remaining grounds. We are of the
considered opinion that the prayer of the Ld. A.R is reasonable and meet
the ends of justice. As per law payment of taxes should be given the
credit as per the dates of the payment of tax. In the instant case, the
ITA No.495/Vizag/2016 Kilim Pydireddy (Indl), Srikakulam assessee has paid the advance tax in HUF status. Since the assessment
was made in individual status the credit should be allowed in individual
status as per the original dates of payment. Accordingly, we direct the
A.O. to allow the prepaid taxes as per the dates of payment while
determining the tax liability in the individual hands. Accordingly, the
order of the Ld. CIT(A) is modified and the appeal of the assessee is
partly allowed.
In the result, the appeal filed by the assessee is partly allowed.
The above order was pronounced in the open court on 28th Feb’18.
Sd/- Sd/- (वी. दुगा�राव) ( ड.एस. . . . सु�दर "संह) (V. DURGA RAO) (D.S. SUNDER SINGH) �या�यक सद�य/JUDICIAL MEMBER लेखा सद�य/ACCOUNTANT MEMBER #वशाखापटणम /Visakhapatnam: 'दनांक /Dated : 28.02.2018 VG/SPS आदेश क� ��त)ल#प अ*े#षत/Copy of the order forwarded to:- 1. अपीलाथ� / The Appellant – Kilim Pydi Reddy (Indl), D.No.7-10-2/5, Saibulu Thota, Srikakulam-532 001. 2. ��याथ� / The Respondent – The ITO, Ward-2, Srikakulam 3. आयकर आयु+त / The CIT-2, Visakhapatnam 4. आयकर आयु+त (अपील) / The CIT (A)-2, Visakhapatnam 5. #वभागीय ��त�न.ध, आय कर अपील�य अ.धकरण, #वशाखापटणम / DR, ITAT, Visakhapatnam 6. गाड� फ़ाईल / Guard file आदेशानुसार / BY ORDER // True Copy // Sr. Private Secretary ITAT, VISAKHAPATNAM
ITA No.495/Vizag/2016 Kilim Pydireddy (Indl), Srikakulam
Sl. Description Date Initials No. 1. Date of dictation by the Author 22.02.2018 Sr.PS 2. Draft placed before the Dictating Member 23.02.2018 Sr.PS 3. Draft placed before the Second Member Sr. PS 4. Draft approved by the Second Member Sr. PS 5. Date of approved order comes to the Sr. PS Sr. PS 6. Date of pronouncement of order Sr. PS 7. Date of file sent to the Bench Clerk Sr. PS 8. Date on which file goes to the Head Clerk Hd. Clk 9. Date of dispatch of order Sr. PS