TMI Blog2020 (12) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... he reasons - HELD THAT:- Since no reasons are communicated to the assessee therefore as per the decision of Alapati Kasi Subrayan [ 2018 (12) TMI 1461 - ITAT VISAKHAPATNAM] and also N. Surya Prakash Rao [ 2014 (3) TMI 1170 - ANDHRA PRADESH HIGH COURT] CIT-A correctly quashed 148 notice and cancelled the assessment order. - I.T.A. Nos. 17, 18/VIZ/2020 and C.O. Nos. 12 and 13/VIZ/2020 - - - Dated:- 25-9-2020 - V. Durga Rao, Member (J) And D. S. Sunder Singh, Member (A) For the Appellant : G.V.N. Hari, Advocate and D.K. Sonawal, CIT, DR For the Respondents : D.K. Sonawal, CIT, DR and G.V.N. Hari, Advocate ORDER V. Durga Rao, Member (J) These appeals by the Revenue and the cross objections by the assessee are directed against the separate orders of Commissioner of Income Tax (Appeals)-1, Visakhapatnam, each dated 25/10/2019 for the Assessment Year 2011-12. Since facts and issues are common, clubbed and heard together and disposed of by way of this consolidated order. ITA No. 17/VIZ/2020 2. The Revenue has raised the following grounds of appeal:- 1. The Order of the ld. CIT(A)-1, Visakhapatnam is erroneous both on facts and in law. 2. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion likely to arise in future, is to be settled by the vendor and vendee in the Court of Law. 8. The Ld. CIT(A) failed to appreciate that as per the definition of capital asset u/s. 2(14) of the Income Tax Act, ownership of the capital asset is immaterial and it is sufficient if the assessee has held it during the year of transfer. 9. The Ld. CIT(A) failed to appreciate that as per the definition of transfer u/s. 2(47), transfer includes sale or exchange or relinquishment of asset or extinguishment of rights in the asset or any transaction allowing of the possession of the immovable property and thus ownership of the land becomes immaterial. 10. The Ld. CIT(A) ought not to have ignored the definitions of sections 2(14) and 2(47) for determining the full value of consideration u/s. 50C of the Act. 11. The Ld. CIT(A) ought to have clubbed the subject appeal with appeal No. 10479/2016-17 for the same assessment year since the total incomes of both assessment orders effectively need to be clubbed together. For these and other grounds that may be urged at the time of appeal hearing, it is prayed that addition made by the AO be restored. 3. Facts of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y at a distressed value. The land was bought without any prior knowledge that the land belongs to Government and involved in some other disputes. When I came to know the fact, I sold at a very low price to get rid of the property. In any way, it is not accepted to your proposal of calculating the market price as revised market price as it will not be fair to charge me for the revision of market value after many months of registration, because the purchaser paid the stamp duty as per market value prevailing on the date of registration and the interest in the property was totally transferred to the purchaser. The AO after considering the explanation of the assessee was of the opinion that the SRO value as deemed consideration towards sale of property i.e. ₹ 10,53,18,400/- as per the provisions of section 50C of the Act. Accordingly, long term capital gain is calculated in the hands of the assessee and assessment is completed. 4. Aggrieved by the order of the AO, the assessee went on appeal before the ld. CIT(A). It was submitted before the ld. CIT(A) that the land purchased and sold by the assessee is a Government land and the SRO value has no application. The sale consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the Government is sought to be transacted by the private parties, the value has to be treated NIL in as much the private parties do not have any right to transact with Government land. The assessee has already received sale consideration of ₹ 45.00 lakhs and he gave a finding that the sale is distressed one is borne out of records. Therefore the consideration actually received would be taken for computing capital gains. The ld. CIT(A) is directed the AO to delete the addition. For the sake of convenience, the relevant portion of the order of the ld. CIT(A) is extracted as under:- 6.3.2. On a careful perusal of the reply furnished by the Tahsildar to the D.V.O. and also the' reply furnished by the DYO to the Assessing Officer, I find that undisputedly the subject lands are Government Lands. The appellant sought to purchase these lands but at the time of registration of the sale cum GPA the appellant came to know that these lands are Government lands and wanted to get rid of the same. At this stage, the buyer Visakha Industrial Gases Private Limited also knew that the sale cum GPA was kept pending for final registration for the reason that the subject lands are Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of ₹ 9,88,88,650/-. This ground of appeal is allowed. 9. We have gone through the assessment order and also the order of the ld. CIT(A) and also the DVO's report extracted by the ld. CIT(A). We find that the ld. CIT(A) gave a categorical finding that the subject matter of the lands are Government lands as per the Tehsildar to the DVO. Therefore, there is no SRO value, the value for the Government lands has to be treated as NIL. The AO without considering the report of the DVO, by invoking section 50C considered the sale value of the property at ₹ 10,53,18,400/- is deemed sale consideration. We find that the AO is not correct in invoking section 50C in this case as observed by the ld. CIT(A). We are also find that the ld. CIT(A) after examining the entire details directed the AO to delete the addition. We find no infirmity in the order passed by the ld. CIT(A). Thus, this appeal filed by the Revenue is dismissed. ITA No. 18/VIZ/2020 10. Facts of the case in brief are that in this case originally assessment was completed u/sec. 143(3) r.w.s. 147 on 31/12/2016 by determining total income of ₹ 9,90,84,760/- on account of addition of ₹ 9,88 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment u/sec. 143(3) r.w.s. 147 on 31/12/2016. Subsequently, the AO by issuing notice u/sec. 148 of the Act dated 31/03/2018 reopened the assessment on the ground that there is an escapement of income. The assessee has contended before the ld. CIT(A) that no reasons are communicated to the assessee. This fact is not disputed by the department even there is no specific ground raised in respect of the issue of non-communication of the reasons, however, the counsel argued that this ground before us. Therefore, we are adjudicated this ground. Before the ld. CIT(A), the assessee has relied on the decision of the Hon'ble ITAT, Visakhapatnam Bench in the case of Alapati Kasi Subrayan by order dated 21/12/2018 in ITA Nos. 113-116/VIZ/2018 and also the decision of the Hon'ble Jurisdictional High Court in the case of N. Surya Prakash Rao in ITTA No. 156/2014 dated 06/03/2014. The ld. CIT(A) by considering the above judicial precedents gave a finding that no reasons are communicated to the assessee therefore as per the decision of the ITAT in Alapati Kasi Subrayan (supra) and also by considering the decision of the Hon'ble Jurisdictional High Court in the case of N. Surya Praka ..... X X X X Extracts X X X X X X X X Extracts X X X X
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