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TMI Blog2019 (12) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... mha (larger HUF), Dappu Naveen Kumar (HUF), Banda Sudershan (HUF), Sri Banda Pentaiah, Banda Mallesh (HUF), Konde Narasimha (HUF) Versus Asst. Commissioner of Income-tax, Circle - 8(1), Hyderabad. ORDER PER SMT. P. MADHAVI DEVI, J.M.: All these group appeals are filed by different assessees. Since common issues are involved, these appeals were clubbed and heard together, therefore, a common and consolidated order is passed in all these appeals for the sake of convenience. ITA No. 1001/Hyd/2019 in the case of Kadada Babu Rao (HUF) 2. This is the assessee's appeal for AY 2007-08 against the order of CIT(A) - III, Hyderabad dated 25/03/2011. 3. Brief facts of the case are that there was a survey u/s 133A of the IT Act on 31/10/2008 in the case of Konde Anjaiah Group and M/s Balaji Real Estates. During the course of survey, it was noticed that the assessee along with other groups of family members have sold certain lands in Peeramcheruvu Village to M/s PBEL Property Development (India) Pvt. Ltd. during the FY 2006-07. From the information so gathered, the AO observed that such land is located within the distance of 8 kms from the limits of Hyderabad Municipal Corporation and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed the expenditure on sale of land i.e. Rs. 14,00,000/- on the ground that assessee has failed to prove the claim of deduction with any evidence. Accordingly, he computed the long term capital gains and brought it to tax in the hands of the assessee, HUF. 4. Aggrieved by the order of AO, the assessee preferred an appeal before the CIT(A. Similarly, all other assessees filed appeals before the respective CIT(A)s against the orders of AOs treating the individuals as Kartas of HUF and bringing capital gain arising out of the above transaction to tax. 5. The CIT(A) granted relief to all the assesses by holding that the land is beyond 8 km from limits of Hyderabad Municipal Corporation and therefore is not a capital asset within the meaning of section 2(14) of the Act. 6. Against the orders of CIT(A), the revenue filed appeals before the Tribunal and the coordinate bench of this Tribunal has held the issue in favour of the revenue by holding that the land in question is a capital asset within the meaning of section 2(14) of the Act. Therefore, the ITAT has set aside the issue on merits to the file of the CIT(A). 7. Consequent to the directions of ITAT, the CIT(A) has reconsidere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Commissioner erred in confirming the order of the Assessing Officer, wherein, Rs. 14 Lakhs, was not allowed, which was incurred on account of sale of land, without any cogent reasons. 10. The assessment is made by issuing a notice u/s 148 to the non-existing HUF, therefore, notice issued is invalid. Therefore, the learned Commissioner erred in confirming the assessment order which stands on an invalid notice. Therefore, assessment on the invalid notice required to be cancelled/treated as null and void. 11. Learned Assessing officer completed the assessment and issued Form No. 156 (demand notice) without allotting PAN, therefore, the demand notice and the order, are to be held as invalid. 12. The appellant craves leave to add to, amend or modify the above grounds of appeal either before or at the time of hearing of the appeal, if it is considered necessary. 8.1 Additional Grounds of appeal: 1. The assessment is made by issuing a notice u/s 148 to the non-existing HUF, therefore, notice issued is invalid. Therefore, the learned Commissioner erred in confirming the assessment order which stands on an invalid notice. Therefore, assessment on the invalid notice required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and accepted. 10. Ld. DR, on other hand, supported the orders of the authorities below and furnished before us the guidelines of CBDT on assessments of HUF and how the property of HUF should be assessed. He also placed reliance upon the following decisions in support of his contention: 1. Smt. Gousai Begum & Shri Mirza Mustafa Baig Vs. DCIT, 18 Taxmann.com 152 (Hyd.), dt. 16/11/2011 2. CIT Vs. smt. Anjana Sehgal (P&H HC), ITA No. 276 of 2004 3. Bolla Ramaiah (AP HC), 39 Taxmann 345, dated 26/03/1987. 4. GK Devrajulu, (Madras HC), 56 Taxmann 85, dated 19/12/1990. 5. Sri Srinivas Pandit (HUF), AP HC), ITTA No. 195 of 2013 6. Gowli Buddanna (SC), [1996] 60 ITR 293 (SC) 7. Smt. Sarifabibi Mohmed Ibrahim, [1993] 70 Taxman 301 (SC) 8. Sri N.V. Narendranath, [1969] 74 ITR 190 (SC) 9. Thamma Venkata Subbamma, [1987] 168 ITR 760 (SC) 10. D.S. Karunakar Reddy Vs. DCIT, ITA No. 752 to 757/H/2011, dtd. 30/11/2011. 11. Having considered the rival contentions and the material on record, we find that undoubtedly the land in question was inherited by the assessee and his family members on the death of their predecessor. The family members of the assessee and others depicted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho dies intestate, after the introduction of Hindu Succession Act, 1956, hold that on the death of the Hindu Male, the property devolves on the heirs in their individual capacity and ceases to be the HUF property. Respectfully following said decision, we hold that the property inherited by the respective assessees is their individual property and, therefore, the capital gains, if any, is exigible to tax in their individual hands alone. Therefore, the ground of appeal No. 2 in the case of Kandada Babu Rao and similar ground on this issue in the case of all other assessees are allowed. 11.5 As regards the question as to whether the said property is a capital asset u/s 2(14) of the IT Act, is not required to be adjudicated at this stage as it has already been decided by the coordinate bench of this Tribunal in the assessee's case in the earlier round of litigation that it is a capital asset u/s 2(14) of the IT Act. Thus, the grounds of appeal on this issue in the case of all the assessee's are rejected. 11.6 As regards the assessee's claim of deduction u/s 54B of the Act, we find that the AO and CIT(A) have not really examined the allowability of such claim by holding the assessee t ..... 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