2013 (8) TMI 73 - AT - Income Tax

Jurisdiction power u/s 263 by CIT(A) - determination of the capital gain is not correctly made by the AO - Held that - Since the issue of entire capital gain assessable in accordance with the development agreement was held by the Tribunal as assessable for the assessment year 1997- 98 and, therefore, no part of the capital gain is assessable for the assessment year under consideration. Hence, the CIT(A) should have decided the appeal on merits by considering the fact that the capital gain is not assessable for the assessment year 2002-03 when it was assessed for the assessment year 1997-98 and that the amount was actually determined for the assessment year 1997-98 which cannot be assessed again now. Therefore, set aside the order of the CIT(A) in all the appeals under consideration and allow the grounds raised by the assessees in their respective appeals.

Summary

Issues:
Appeal against orders of CIT(A) for assessment year 2002-03 involving capital gains determination and assessment.

Analysis:
The judgment by the Appellate Tribunal ITAT Hyderabad involved three appeals by different assessees against the orders of CIT(A) for the assessment year 2002-03. The appeals were clubbed together due to a similar issue. The delay in filing one of the appeals was condoned after the assessee provided reasons for the delay. The assessees, who were brothers, entered into a property development agreement resulting in the filing of returns admitting 'NIL' income under capital gains. The assessment was reopened and completed with an addition towards long-term capital gains. The CIT(A) passed orders directing the AO to verify certain issues and make additions. Subsequently, the AO passed orders under section 143(3) read with section 263, leading the assessees to appeal before the CIT(A).

The CIT(A) in a common order noted that notices sent to the appellant were returned, indicating a lack of representation. The CIT(A) sustained the additions made by the AO in the assessment order and dismissed the appeal. The assessees raised various grounds of appeal challenging the CIT(A)'s decision, including errors on facts and law, lack of proper opportunity provided by the CIT(A), and issues related to the determination of capital gains and correct cost of acquisition. The learned counsel for the assessees presented the facts of the case, emphasizing the development agreement and the possession of land given to the builder.

The Tribunal referred to previous judgments and held that the capital gain was assessable in the assessment year 1997-98 and not in 2002-03. The Tribunal disagreed with the CIT(A)'s decision and set aside the order, allowing the grounds raised by the assessees in their respective appeals. The Tribunal concluded by allowing all three appeals under consideration on 31st May 2013. The judgment highlighted the importance of correctly assessing the year in which capital gains are taxable based on the specific terms of the development agreement and relevant legal principles.

This detailed analysis of the judgment showcases the procedural history, legal arguments, and the final decision made by the Appellate Tribunal ITAT Hyderabad regarding the appeals related to capital gains assessment for the assessment year 2002-03.