JERRY PLAMMOTTIL ABRAHAM, MUMBAI V. ITO 25(2)(1), MUMBAI

CO 161/MUM/2011

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7221 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 11 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 19-04-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Next Hearing Date: 17-04-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 07-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D S SUNDER SINGH
• Assessee Lawyers: B V JHAVERI
• Keywords: Capital asset; Cost of acquisition
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIB UNAL MUMBAI BENCHES J, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI VIJAY PAL RAO, JM ITA NO.3393/MUM/2011 : ASST. YEAR 2003-2004 THE INCOME TAX OFFICER WARD 25(2)(1) MUMBAI. SHRI JERRY PLAMMOTTIL ABRAHAM 1A, SHRON APARTMENT, I.C.COLONY BORIVALI (WEST), MUMBAI 400 051. PAN : AACPA6874A. (APPELLANT) VS. (RESPONDENT) CO NO.161/MUM/2011 : ASST. YEAR 2003-2004 SHRI JERRY PLAMMOTTIL ABRAHAM 1A, SHRON APARTMENT, I.C.COLONY BORIVALI (WEST), MUMBAI 400 051. THE INCOME TAX OFFICER WARD 25(2)(1) MUMBAI. (CROSS OBJECTOR) VS. (RESPONDENT) REVENUE BY : SHRI D.S.SUNDER SINGH ASSESSEE BY : SHRI B.V.JHAVERI DATE OF HEARING : 17.04.2012 DATE OF PRONOUNCEMENT : 19.04.2012 O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE REVENUE AND CROSS OBJECTION BY T HE ASSESSEE ARISE OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME-T AX (APPEALS) ON 21.02.2011 IN RELATION TO THE ASSESSMENT YEAR 2003- 2004. 2. THE ONLY EFFECTIVE GROUND TAKEN BY THE REVENUE I N ITS APPEAL IS AGAINST THE DELETION OF ADDITION OF ` 14 LAKH MADE BY THE ASSESSING OFFICER. BRIEFLY STATED THE FACTS OF THIS GROUND ARE THAT THE ASSESS EE SOLD PROPERTY AT 41/42, BLOCK NO.B, STERLING APARTMENT, KALINA MARKET, FOR A CONS IDERATION OF ` 14 LAKH IN NOVEMBER 2002. THE ASSESSEE DID NOT FILE ANY RETURN . IN RESPONSE TO NOTICE U/S 148 THE ASSESSEE FURNISHED RETURN DECLARING TOTAL I NCOME AT ` 66,950. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE WAS C ALLED UPON TO SUBMIT THE DETAILS OF SUCH SALE ALONG WITH PURCHASE AND SALE A GREEMENT. SINCE THE ASSESSEE FAILED TO FILE RETURN BEFORE DUE DATE U/S 139(1), T HE ASSESSING OFFICER HELD THAT ITA NO.3393/M/2011 & CO.161/M/2011 SHRI JERRY PLAMMOTTIL ABRAHAM.. 2 THE ENTIRE SALE CONSIDERATION WAS LIABLE TO BE TAKE N AS INCOME OF THE ASSESSEE. HE, THEREFORE, MADE ADDITION OF ` 14 LAKH. THE LEARNED CIT(A) DELETED SUCH ADDITION. 3. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD IT IS SEEN THAT THE ASSESSEE FUR NISHED RETURN IN RESPONSE TO NOTICE U/S 148 ON 29.11.2010 ADMITTING THE TOTAL IN COME AT ` 66,950 INCLUDING LONG TERM CAPITAL GAIN OF ` 33,012. THIS LONG TERM CAPITAL GAIN WAS WORKED OUT BY TAKING THE PURCHASE CONSIDERATION AT ` 8,50,000 ON 12.10.1994 AND INDEXED COST OF ACQUISITION AT ` 14,66,988 ALONG WITH THE SALE CONSIDERATION AT ` 15 LAKH. FROM THE IMPUGNED ORDER IT IS VIVID THAT THE ASSESS EE SUBMITTED COPY OF SALE AGREEMENT AND PURCHASE AGREEMENT BEFORE THE A.O. AS PER HIS LETTER DATED 23.11.2010 WHICH WAS DULY ACKNOWLEDGED BY THE A.O. WITH HIS SIGNATURE. THE CAPITAL GAIN OF ` 33,012 WAS DETERMINED BY THE ASSESSEE AS UNDER:- SALE CONSIDERATION ` 15,00,000 LESS : INDEX COST OF ACQUISITION ` 14,66,988 -------------- BALANCE ` 33,012 ======== 4. IN VIEW OF THE ASSESSEES LETTER SUBMITTING COPI ES OF PURCHASE AGREEMENT AND SALE AGREEMENT BEFORE THE A.O., IT BECOMES OBVI OUS THAT THE CONTRARY OBSERVATIONS CONTAINED IN THE ASSESSMENT ORDER IN T HIS REGARD ARE NOT CORRECT. IT IS AXIOMATIC THAT ON THE TRANSFER OF A CAPITAL ASSE T, WHAT CAN BE TAXED IS THE AMOUNT OF CAPITAL GAIN AND NOT THE ENTIRE SALE CONS IDERATION WHEN THE ASSESSEE ACQUIRES THE CAPITAL ASSET WITH A CERTAIN COST OF A CQUISITION. FROM THE ASSESSEES LETTER FILED BEFORE THE A.O. DULY ACKNOWLEDGED BY T HE ASSESSING OFFICER, IT BECOMES PATENT THAT THE ASSESSEE PURCHASED THE PROP ERTY FOR ` 8,50,000 ON 12.10.1994. IN THAT VIEW OF THE MATTER THE CALCULAT ION OF THE CAPITAL GAIN AT ` 33,012 BECOMES ABSOLUTELY CORRECT. FURTHER, NO MIST AKE HAS BEEN POINTED OUT ITA NO.3393/M/2011 & CO.161/M/2011 SHRI JERRY PLAMMOTTIL ABRAHAM.. 3 BY THE A.O. IN SUCH COMPUTATION OF CAPITAL GAIN. WE , THEREFORE, UPHOLD THE IMPUGNED ORDER ON THIS ISSUE. 5. THE CROSS OBJECTION FILED BY THE ASSESSEE IS ONL Y IN SUPPORT OF THE IMPUGNED ORDER. 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED AND THAT THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED AS INFRUCTUO US. ORDER PRONOUNCED ON THIS 19 TH DAY OF APRIL, 2012. SD/- SD/- (VIJAY PAL RAO) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 19 TH APRIL, 2012. DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - XXXV, MUMBAI 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.