Income Tax Appellate Tribunal - Hyderabad
Soldier Scholars Study Circle, ... vs Income Tax Officer, Ward-6(3), ... on 17 August, 2018
ITA No 314 of 2018 Soldier Scholars Study Circle Hyderabad.
IN THE INCOME TAX APPELLATE TRIBUNAL
Hyderabad ' B ' Bench, Hyderabad
Before Smt. P. Madhavi Devi, Judicial Member
AND
Shri Inturi Rama Rao, Accountant Member
ITA No.314/Hyd/2018
(Assessment Year: 2009-10)
Soldier Scholars Study Vs Income Tax Officer
Circle, Hyderabad Ward 6(3)
PAN: AAITS6048Q Hyderabad
(Appellant) (Respondent)
For Assessee : Shri Laxminiwas Sharma
For Revenue : Smt. M. Narmada, DR
Date of Hearing: 13.08.2018
Date of Pronouncement: 17.08.2018
ORDER
Per Smt. P. Madhavi Devi, J.M.
This is assessee's appeal for the A.Y 2009-10 against the order of the learned CIT (A)-IV, Hyderabad, dated 18.01.2013.
2. At the outset, it is noticed that there is a delay of 1760 days in filing of the appeal before us. The assessee has filed an application for condonation of delay alongwith an affidavit stating as under:
"BEFORE THE INCOME TAX APPELLATE TRIBUNAL, HYDERABAD I, Pandu Ranga Reddy, president of Soldier Scholars study circle (PAN: AAITS6048Q), , resident of Flat no. 501 Shanti Soudha Apartments, Erramanzil Colony, Somajiguda Hyderabad 500004, hereby solemnly affirm and declare as under:Page 1 of 6
ITA No 314 of 2018 Soldier Scholars Study Circle Hyderabad.
Soldier Scholars Study Circle ("Assessee") is a registered educational society and has been providing guidance to the aspiring candidates to civil services since 1983. Society is set up to educate and train students and to undertake research in related fields.
Assessee filed its return of income for the assessment year 2009-10, declaring a total income of Rs.44,19,890/- .The case was selected for scrutiny, assessing officer passed an order u/s 143(3) determining total income of Rs.5,10,18,594/-. During the F.Y 2008-09, assesse has sold a property for a sale consideration of Rs.3,00,00,000/-. While passing the assessment order, AO invoked the provisions of section 50C and adopted registered value of Rs.5,16,67,000/- as sale consideration and re-computed the total , income.
Aggrieved by the addition made, we filed an appeal before C.I.T (A) - IV, Hyderabad and the learned CIT(A) vide its order ITA 481/ITO 6(3)/CIT(A)-IV /2011-12 dated 18/01/2013 partly allowed the appeal in our favour and directed AO to consider the fair market value of Rs.3,80,12,000/- estimated by the DVO. However the fair market value estimated by DVO is also excessive as the same is not estimated by considering the peculiar facts of the case Le the property sold is situated in a non-municipal area, is subject to many restrictions from government like maintaining of buffer zone, handing over the area for road widening without any compensation, development of roads etc. and in these circumstances the property will not fetch the fair market value as estimated by the DVO.
During the time when proceedings were going on before CIT-CA) and when the appellate order was passed, I made lot of efforts to collect supporting document but as this document is not publicly available, I did not have this document to produce before CITCA) and therefore I couldn't prefer second appeal .However now after continuously striving for almost five years I am able to obtain Government's order imposing restrictions on the area in which this property is located. This document would have been available with DVO and the DVO ought to have considered this while estimating the value.
The above cited GO mandates 100/30 meters buffer zone from the tank while obtaining permission. This Page 2 of 6 ITA No 314 of 2018 Soldier Scholars Study Circle Hyderabad.
buffer zone area is 784 Sq. yards. The Government widened the road and 1628 Sq. yards was taken and no compensation was paid. Further in the plan open space of 528 Sq. yards was left. Therefore this area was never available with assesse for sale and therefore the value as adopted for full area should not be taken as sale consideration by invoking provision of section 50C.
I am a senior citizen and do not earn so much of income to afford to pay huge tax liability and interest there on. I am being harassed by department from long-time for the outstanding demand. A lot of hardship is being caused to be due to this demand. With lot of difficulty I have been able to obtain the supporting document and with the help of it I will be able to prove as to why the value adopted by DVO should not be considered as sale consideration, hence provisions of section 50C are not applicable in my case.
In view of the foregoing I pray your good-selves to please condone the delay of 1,767 days in filing of this appeal and allow me to present my case.
Pandu Ranga Reddy President Soldier Scholars Study Circle Date: 22/03/2018 Place: Hyderabad"
3. The learned Counsel for the assessee reiterated the submissions made in the affidavit and in support of his contention that he has been pursuing before the State Government for securing the copy of the G.O, he has filed the copies of two letters dated 4.1.2013 and 7.4.2015. In the letter dated 4.1.2013, the assessee has stated that the land of three acres has been sold in July, 2008 and the sale consideration was Rs.3.00 crores and that the buyer has informed that the land is subject to various restrictions in construction vide G.O. No.71 and requested copy of the said G.O. There is a reference to this letter also in the letter dated 7.4.2015. Therefore, the assessee Page 3 of 6 ITA No 314 of 2018 Soldier Scholars Study Circle Hyderabad.
appears to have been pursuing with the Department of Municipal Administration, GHMC, Hyderabad for the copy of the GO, though not very diligently. The learned Counsel for the assessee submitted that though nothing has been filed in writing, the assessee has been pursuing the Department personally and faced difficulties and that the assessee has received a copy of the G.O in 2018 when the permission for construction was also granted and thereafter, the assessee had immediately filed the appeal before the Tribunal. He submitted that in the interest of justice, the delay should be condoned and the valuation of the property should be considered in the light of GO No.71.
4. The learned DR, however, opposed the condonation of the delay. She submitted that the assessee has failed to prove that he has been diligent in pursuing the application before the Govt. and had not given any explanation as to why he could not file the appeal without the copy of the G.O. Therefore, according to her, the delay is not to be condoned. Both the parties relied upon case law in favour of their contentions.
5. Having regard to the rival contentions and the material on record, we find that the assessee is an educational institution and has sold a property and the dispute was only with regard to the valuation u/s 50C of the Act. The assessee is taking refuge under the GO No.71 for the restrictions placed on constructions in the property for taking a lower value. He stated that the purchaser had applied for permission for construction and obtained the permission only in the year 2018 wherein there is a Page 4 of 6 ITA No 314 of 2018 Soldier Scholars Study Circle Hyderabad.
reference to the G.O and had thus stated that the assessee could obtain the copy of the G.O only in 2018 and has filed the appeal thereafter. We find that the assessee has made an application on 4.1.2003, i.e. even when the proceedings were pending before the CIT (A) for the copy of the GO, and had filed another letter in the year 2015. The Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. Mst. Katiji and Ors (1987) reported in 167 ITR 471 (S.C) observed that while interpreting the words "sufficient cause", due regard should be given to the merits of the case. It has been held that refusing to condone delay can result in a meritorious matter being thrown out at the threshold and cause of justice being defeated. This decision has been considered and followed by the Coordinate Benches of this Tribunal in a number of cases. The learned DR has relied upon the decision of the Coordinate Bench in the case of Shri T. Kishan vs. ACIT in IT(SS)A No.23 & 25/Hyd/2011 dated 18.5.2012 wherein also there was a delay of 2491 days in filing appeal before the CIT (A) and even the admitted taxes of the returned income was paid belatedly. Therefore, the said decision is distinguishable from the facts of the case before us. Respectfully following the decision of the Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. Mst. Katiji and Ors (1987) (Supra), we are inclined to condone the delay and remand the issue to the file of the AO for reconsideration in the light of the GO No.71, dated 7.2.2007 issued by the Department of Municipal Administration, Greater Hyderabad Municipal Corporation, Hyderabad.
5. In the result, assessee's appeal is treated as allowed for statistical purposes.
Page 5 of 6ITA No 314 of 2018 Soldier Scholars Study Circle Hyderabad.
Order pronounced in the Open Court on 17th August, 2018.
Sd/- Sd/-
(Inturi Rama Rao) (P. Madhavi Devi)
Accountant Member Judicial Member
Hyderabad, dated 17th August, 2018.
Vinodan/sps
Copy to:
1 Laxminiwas & Co. C,A, D.No.6-3-569, 4th Floor, Opp: RTA Office,
Above BMW Showroom, Khairatabad, Hyderabad 500082 2 ITO, Ward 6(3) Hyderabad 3 CIT (A)-IV Hyderabad 4 CIT - III Hyderabad 5 The DR, ITAT Hyderabad 6 Guard File By Order Page 6 of 6