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TMI Blog2018 (4) TMI 1529X X X X Extracts X X X X X X X X Extracts X X X X ..... . Further, they cannot raise a ground orally at the time of final hearing, as it would be against the principles of natural justice as the Revenue would not be in a position to defend itself again without proper records. In view of the same, we are not inclined to accept the argument of the assessee against the reopening of the assessment u/s 148 of the Act. As regards the LTCG being brought to tax by the AO, we find that the vendee himself has given a declaration, by a registered deed, that the sale deeds have been executed only in order to enable him to safeguard the properties and to settle all the legal disputes and that they shall be cancelled thereafter. In fact the assessee’s have also filed the suits for cancellation of the sale deed which are pending before the Hon'ble Civil Courts. The transfer is not complete and the capital gain therein will not arise. However, the outcome of the civil suits will determine the question of transfer and if the Civil Courts hold the transfer to be final, then in that year, the assessee’s will be liable to pay the tax on the capital gain. In view of the same, we are inclined to allow the assessee’s appeals with the above observations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-6-161 at Hyderguda, Hyderabad and that they executed a sale deed, vide registered document No.398/2004, dated 13.02.2004 in relation to the above property in favour of one Shri B. Janardan Reddy for a sum of ₹ 14,22,000 but market value of ₹ 36.00 lakhs. On perusal of the records, the AO observed that the assessee s did not submit the returns of income for the A.Y 2004-05. In view of the same, the case was reopened u/s 147 by issuance of a notice u/s 148 of the Act. The assessee s, on receipt of the notice, requested for grounds for reopening of the assessments, vide letters dated 21.04.2010. The assessee s were supplied with the reasons and in response to the said notice, assessee s filed their returns of income on 13.09.2010. It was also submitted that as per the judgment of the Hon'ble Andhra Pradesh High Court, the assessee s have received an amount of ₹ 25.00 lakhs each from their father towards their marriage expenses. Regarding the sale of the property at Hyderguda, they submitted that they have filed the partition suit against their father, Shri Mahesh Chand and meanwhile, they were approached by Shri B. Janardan Reddy, a family friend who promised t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous and is unsustainable both on facts and in law. 2. The CIT (A) failed to note that the reassessment proceedings arising out of reasons recorded has no nexus with income escaping assessment and therefore the entire reassessment proceedings are invalid, bad in law and without jurisdiction. 3. The CIT(A) erred in sustaining the addition of long term capital gain without considering the fact that the premise for levy of tax under capital gain is 'transfer' and the appellant had clearly brought out the fact that then~ was no transfer. 4. The CIT (A) failed to consider the declaration made by Mr. B.Jainardhan Reddy wherein he has mentioned that no consideration was paid and that there was no transfer as confirmed by Mr. B.Janardhan Reddy. 5. Without prejudice to the above, the CIT(A) failed to note that the date of acquisition of the property should have been related back on the basis of sale value and adopt for registration purposes . 7. The grounds raised by Ms. Rajini Chand are also identical. 8. The learned Counsel for the assessee while reiterating the submissions made by the assessee s before the authorities below, argued that the re-asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deeds have become final and hence the LTCG has arisen to the respective assessee s. The learned DR objected to the learned Counsel for the assessee s argument against the reopening of the assessment stating that the assessee has never objected before the authorities below nor have they filed any application for admission of the additional grounds of appeal before the ITAT and hence the oral arguments by the learned Counsel for the assessee s should not be entertained. 11. In rebuttal, the learned Counsel for the assessee submitted that this being a legal ground, the assessee can raise it at any point of time and that a ground can also be raised orally. 12. Having regard to the rival contentions and the material on record, I find that the assessee s have never objected to the reopening of the assessment either before the AO or before the CIT (A). The assessee s have also not raised any grounds of appeal in writing much less the additional grounds of appeal against the reopening of the assessment. Rule 27 of the ITAT Rules, only permits the respondents to support the orders appealed against any of the decision against him and Rule 29 also provides that the parties to the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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