TaxTMI 
TaxTMI 
2024 (12) TMI 193
X X X X Extracts X X X X
X X X X Extracts X X X X
....e assessee Shri Mir Ibrahim Ali in ITA No.69/Hyd/2024 for A.Y. 2016-17 are reproduced as under : "1. The order of the learned Dispute Resolution Panel (DRP) is against the law, weight of evidence and probabilities of case. 2. The learned Dispute Resolution Panel ought to have appreciated that the amendment to section 144C(15) is brought into the statute by introducing clause (b)(ii) in sub-section 15 of section 144C, non residents not being company or a foreign company are brought into the clutch of the provisions of section 144C with effect from 01.04.2020. Therefore, amended provisions of clause (b)(ii) of section 144C(15) are applicable from assessment year 2020-21 onwards, therefore, erred in rejecting the ground of objection in respect of applicability of section 144C of the IT Act, for the subject assessment year in the case of assessee. 3. The learned DRP ought to have held that the notice u/s 148 dt: 29.03.2021, is an invalid notice as there is no PAN details, as the notice is invalid notice the consequential proceedings are to be held null and void. 4. The learned DRP ought to have appreciated that the subject lands transferred are locat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ore, the same is beyond the time limit provided u/s 153(2) of the IT Act, therefore, order u/s 147 r.w.s. 144C(13) is to be held bad in law." 4. At the time of hearing, the learned counsel for the assessee, Shri Mohd Afzal, Advocate, referring to the petition filed by the assessee for admission of additional grounds, submitted that the assessee is a non-resident individual, sold agricultural land and not offered any capital gain. The assessment has been reopened under Section 147 of the Act, by issuing notice under Section 148 dated 29-03-2021, which was presumably served on the assessee in the month of April 2021. The assessment has been completed under Section 147 r.w.s. 144C(13) of the Income Tax Act, 1961, on 08-01-2024. As per the provisions of Section 153(2) of the Act, re-assessment shall be completed within one year from the end of the financial year in which notice under Section 148 has been served on the assessee. In the present case, notice under Section 148 has been served in the month of April 2021. Therefore, the assessment should have been completed on or before 31-03-2023, whereas the AO has passed the final assessment order on 08-01-2024, which is barred by limi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... out of the transfer of property. Therefore, the assessment has been reopened under Section 147 of the Act and notice under Section 148 dated 29-03-2021 was issued and served on the assessee at the given address. The assessee has not filed his return of income, in response to the notice under Section 148 of the Act dated 29-03-2021. Subsequently, a show-cause notice has been issued to the assessee and called upon to explain as to why an addition should not be made, in respect of capital gain from sale of land in Survey No.135/1-2, situated at Edul Nagulapally Village, Ramachandrapuram Mandal, Madak District. In response to the show-cause notice, the assessee submitted that the land sold by the assessee is agricultural land and situated beyond 12 kms from the local limits of Ramachandrapuram Municipality, and thus, it is out of the scope of a 'capital asset' as defined under Section 2(14)(iii) of the Income Tax Act, 1961. 8. The AO, after considering the submissions of the assessee and also taken note of the information available in the website of Greater Hyderabad Municipal Commission (GHMC), observed that the land sold by the assessee comes under West Zone, Circle 13, Hyderabad....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rovided therein should be cumulatively satisfied. In the present case, although, the assessee is an N.R.I., there is no reference under Section 92CA of the Act to the Transfer Pricing Officer (TPO), and thus, the assessee cannot be treated as an eligible assessee. The learned counsel for the assessee further referring to the decision of ITAT, Hyderabad in the case of Sri Syed Gulam Mohiuddin Vs. ITO, International Taxation - 1, Hyderabad in ITA No.136/Hyd/2023 dt.03.06.2024, submitted that the Tribunal has considered an identical issue in the case of an N.R.I., and held that the re-assessment order should be completed within the time limit provided under Section 153(2) of the Act, but not as per the time limit available under Section 144C of the Act. Therefore, he submitted that re-assessment order passed by the AO under Section 147 read with Section 144C(13) should be quashed. 13. The Learned Counsel for the assessee, on the issue of addition made by the AO towards capital gain, submitted that, the impugned land sold by the assessee situated at Edul Nagulapally Village, Ramachandrapuram Mandal, Madak District is an agricultural land and is situated beyond 12 kms., away from Ram....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e impugned land is situated within the territorial jurisdiction of GHMC. Further, as per the findings of the AO, the land sold by the assessee falls under the West Zone of GHMC. Therefore, once the land sold by the assessee is within the territorial jurisdiction of Ramachandrapuram Municipality, it falls under the definition of 'capital asset', as defined under Section 2(14) of the Act, and the gain, if any, arising out of said transfer is taxable under the Act. Hence, the addition has rightly made by the Assessing Officer and upheld by the DRP. Therefore, the order of the AO should be upheld. 16. We have heard both the parties, perused the material available on record and gone through the orders of the authorities below. The assessee is a non-resident individual for the A.Y 2016-17 and is an eligible assessee as per section 144C(15)(b) of the I.T. Act, 1961. As per section 144C of the Act, the assessment of an eligible assessee shall be dealt with in accordance with the said provision. As per the provision of section 144C, in case of an eligible assessee, the Assessing Officer shall pass a draft assessment order and served on the assessee, if he proposes to make any variation i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....overed u/s 144C of the Act. Since the extended time limit of 12 months is not available in the case of Non-Resident as per section 153(4) of the Act, in our considered view, the Assessing Officer ought to have completed the assessment as per the provisions of section 153(2) of the Act which is one year from the end of the financial year in which notice u/s 148 was served. In the present case, if we go by date of notice issued u/s 148 of the Act i.e. 29.03.2021 and probable service in the month of April, 2021, the time limit for completing the assessment u/s 147 was available up to 31.03.2023 and thus, the final assessment order passed by the Assessing Officer u/s 147 r.w.s. 144C(13) dated 08.01.2024 is clearly barred by limitation. 18. The assessee has relied upon the decision of ITAT, Hyderabad Bench in the case of Syed Gulam Mohiuddin (supra), wherein the Coordinate Bench of the Tribunal has considered an identical issue and after considering relevant facts, has held as under : "8. We have heard both the parties, perused the material available on record and gone through the orders of the authorities below. The assessee is a non-resident individual for the A.Y 2017-18 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2 months notwithstanding anything contained in sub-section (1), (1A), (2), (3) and (3A) where a reference u/s 92CA)(1) is made during the assessment proceedings to the TPO. In other words, except the cases of the reference to the TPO, extended time limit of 12 months for completion of assessment is not available even in a case of Non-Resident assessment, even though the said assessment proceedings is covered u/s 144C of the Act. Since the extended time limit of 12 months is not available in the case of Non-Resident as per section 153(4) of the Act, in our considered view, the Assessing Officer ought to have completed the assessment as per the provisions of section 153(2) of the Act which is one year from the end of the financial year in which notice u/s 148 was served. In the present case, if we go by date of notice issued u/s 148 of the Act i.e. 30.03.2021, the time limit for completing the assessment u/s 147 was available up to 31/03/2022 and thus, the final assessment order passed by the Assessing Officer u/s 144 r.w.s. 144C dated 12.01.2023 is clearly barred by limitation. 10. This proposition is covered by the decision of the Hyderabad Bench of the Tribunal in the cas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....: Provided that in respect of an order of assessment relating to the assessment year commencing on the 1st day of April, 2018, the provisions of this sub-section shall have effect, as if for the words "twenty-one months", the words "eighteen months" had been substituted: [Provided further that in respect of an order of assessment relating to the assessment year commencing on the- (i) 1st day of April, 2019, the provisions of this sub-section shall have effect, as if for the words "twenty-one months", the words "twelve months" had been substituted; (ii) 1st day of April, 2020, the provisions of this sub-section shall have effect, as if for the words "twenty-one months", the words "eighteen months" had been substituted: Provided also that in respect of an order of assessment relating to the assessment year commencing on or after the 1st day of April, 2021, the provisions of this sub-section shall have effect, as if for the words "twenty-one months", the words "nine months" had been substituted.] (1A) Notwithstanding anything contained in sub-section (1), where a return under sub-section (8A) of section 139 is furnished, an order o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....see has argued the issue of addition made towards capital gain from sale of property on merits and contended that impugned land sold by the assessee in Survey No. 135/1-2, situated at Edul Nagulapally Village, Ramachandrapuram Mandal, Madak District, is beyond 12 Kms., from the limits of nearest Ramachandrapuram Municipality. Although, we are convinced with the arguments of the learned counsel for the assessee in light of the relevant evidence filed in support of the contentions that the impugned land sold by the assessee is an agricultural land and which is situated beyond 12 Kms., from the limits of nearest Ramachandrapuram Municipality but in our considered view, the issue on merits does not require any adjudication because, the re-assessment order passed by the Assessing Officer u/s 147 r.w.s. 144C(13) of the Act has been held to be barred by limitation. Thus, we ourselves, refrain from adjudicating the issue on merits. 21. In the result, the appeal of assessee in ITA No.69/Hyd/2024 is allowed. ITA No.91/Hyd/2024 for A.Y. 2018-19 22. The facts of the present case and issues involved are identical to the facts and issues which we had considered in ITA No.69/Hyd/2024 for....