Shri Govindbhai Ramanlal Chaudhary, Ahmedabad V. The Income tax Officer,Ward-6(2), Ahmedabad

CO 214/AHD/2012

• Counselvise Citation: [2016] 112 COUNSELVISE.COM (IT) 4017 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 26 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 18-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 22-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 22-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: PRADEEP TULSIAN
• Keywords: Set aside
• Section: 246

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER CROSS OBJECTION NO.214/AHD/2012 IN ./ ITA.NO.2124/AHD/2012 / ASSTT. YEAR: 2009-2010 ITO, WARD - 6(2) AHMEDABAD. VS GOVINDBHAI RAMANLAL CHAUDHRY 1/106/1263, SHREE NAGAR APARTMENT SOLA ROAD AHMEDABAD 380 063. PAN : AAHPC 0832 H ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI DINESH SINGH, SR.DR ASSESSEE BY : SHRI PRADEEP TULSIAN, AR / DATE OF HEARING : 22/06/2016 / DATE OF PRONOUNCEMENT: 18/07/2016 $%/ O R D E R THE PRESENT CROSS OBJECTION IS DIRECTED AT THE INST ANCE OF THE ASSESSEE AGAINST ORDER OF THE LD.CIT(A) DATED 9.7.2012 PASSE D FOR THE ASSTT.YEAR 2009- 10. 2. I HAVE DECIDED THE APPEAL OF THE REVENUE BEARING ITA NO.2124/AHD/2012 BY WAY OF SEPARATE ORDER PASSED TO DAY. IN THE CO, THE ASSESSEE HAS PLEADED THAT LD.AO HAS ERRED IN NOT AL LOWING SET OFF SHORT TERM CAPITAL LOSS OF RS.2,89,332/- AGAINST THE SHORT TER M CAPITAL GAIN ASSESSED AT RS.6,05,000/-. IT IS ALSO PLEADED THAT THE AO HAS ERRED IN NOT ALLOWING INCIDENTAL EXPENSES LIKE STAMP DUTY, REGISTRATION C HARGES AND OTHER EXPENSES INCURRED BY THE ASSESSEE. CO NO.214/AHD/2012 2 3. BRIEF FACTS OF THE CASE ARE THAT THE AO GOT AN I NFORMATION FROM AIR WING EXHIBITING THE FACT THAT THE ASSESSEE HAS SOLD LAND WITH OTHER THREE CO- OWNERS FOR A CONSIDERATION OF RS.72.50 LAKHS. HE H AS SHARE AT 10%. THE AO HAS COMPUTED SHORT-TERM CAPITAL GAIN AT RS.6.05 LAK HS IN THE HANDS OF THE ASSESSEE. IN THE RETURN, THE ASSESSEE HAS CLAIMED SET OFF OF CAPITAL LOSS OF RS.2,89,32/-. HE ALSO CLAIMED THE FOLLOWING EXPEND ITURE: 1. STAMP DUTY ON PURCHASE OF LAND RS.59000/- 2. REGISTRATION FEES ON PURCHASE RS.12,270/- TOTAL EXPENSES RS.71,270/- A 10% OF THE ASSESSEE RS.7,127/- B VAKIL FEES & OTHER MISC. EXPENSES ON PURCHASE RS.30,000/- C VAKIL FEES & OTHER MISC. EXPENSES ON SALES RS.30,000/- TOTAL RS.67,1275/- THEREAFTER, THE ASSESSEE HAS CLAIMED DEDUCTION OF FOLLOWING EXPENDITURE UNDER CHAPTER-VI OF THE INCOME TAX ACT: 1. HOUSING LOAN REPAYMENT RS.3,03,464/- 2. LIC RS.42,344/- 3. PPF RS.30,000/- 4. BAJAJ ALLIANCE LIC RS.7,952/- MAXIMUM ELIGIBLE AMOUNT U/S.80C RS.100000/- DEDUCTION U/S.80D MEDICLIAM PREMIUM RS.8353/- TOTAL ALLOWABLE DEDUCTION RS.1,08,353/- 4. THE LD.AO DID NOT MAKE A DISCUSSION OF THIS CLAI M. THE LD.CIT(A) HAS REJECTED THE CLAIM OF THE ASSESSEE ON THE GROUND TH AT NO DISCUSSION WAS MADE BY THE AO IN THE IMPUGNED ASSESSMENT ORDER. ACCORD ING TO THE LD.CIT(A) CO NO.214/AHD/2012 3 THIS CLAIM HAS BEEN MADE FOR THE FIRST TIME. THE F INDING RECORDED BY THE LD.CIT(A) ON THIS ISSUE READ AS UNDER: 5. VIDE THIRD GROUND, APPELLANT HAS PRAYED FOR BEN EFIT OF SET OFF OF SHORT TERM CAPITAL LOSS OF RS.2,89,332/- DECLARED B Y THE APPELLANT IN ITS RETURN OF INCOME. THE APPELLANT PRAYED THAT SHORT T ERM CAPITAL GAIN AS DECLARED BY IT SHOULD BE SET OFF AGAINST SHORT TERM CAPITAL GAIN OF RS.6,05,000/- ASSESSED BY THE A.O. IT IS SEEN THAT APPELLANT HAS NOT DECLARED LONG TERM CAPITAL GAIN OF RS.6,05,000/- IN ITS RETURN OF INCOME. IT IS THE A.O. WHO HAD DETECTED THIS LONG TERM CAPI TAL GAIN AND BROUGHT THE SAME TO TAX. IT IS ALSO A MATTER OF RECORD THAT APPELLANT DURING ASSESSMENT PROCEEDINGS KEPT ON DENYING ITS LIABILIT Y TOWARDS SHORT TERM CAPITAL GAIN. THE APPELLANT HAD NEVER CLAIMED BENEF IT OF SHORT TERM CAPITAL LOSS AGAINST PROPOSED ADDITION OF STCG, BEF ORE THE A.O. THUS, THIS ISSUE HAS BEEN RAISED FOR THE FIRST TIME IN AP PEAL. IT IS ALSO OBSERVED THAT THE A.O. HAD NOT GIVEN SPECIFIC FINDING THAT B ENEFIT OF SHORT TERM CAPITAL LOSS SHOULD NOT BE ALLOWED TO THE APPELLANT AGAINST THE ASSESSED SHORT TERM CAPITAL GAIN. AS MENTIONED ABOVE, IT IS THE APPELLANT, WHO HAD NOT MADE SUCH CLAIM. THIS WAY, APPELLANT IS NOT AGGRIEVED BY THE ASSESSMENT ORDER ON THIS ACCOUNT AND ACCORDINGLY AS PER THE PROVISIONS OF SECTION 246 OF IT. ACT, APPEAL IN RESPECT OF THI S ISSUE DOES NOT LIE BEFORE THIS OFFICE. IN MY CONSIDERED VIEW, THE CLAI M OF THE APPELLANT DESERVES TO BE SUMMARILY DISMISSED AS PER THE RATIO OF GOETZE (INDIA) LTD. V/S. CIT REPORTED AT 284 ITR 323 (S.C.) IN VIE W OF ABOVE, THIS GROUND OF APPEAL IS DISMISSED. 6. VIDE FIFTH GROUND OF APPEAL, APPELLANT HAD PRAYE D FOR DEDUCTION OF INTEREST PAID ON HOUSING LOAN AND THE PRINCIPAL REP AYMENT AS DEDUCTION U/S.SOC OF IT. ACT. 6.1 I HAVE CAREFULLY CONSIDERED SUBMISSIONS MADE BY THE APPELLANT. IT IS SEEN THAT APPELLANT HAS NEVER CLAIMED DEDUCTION TOW ARDS INTEREST PAID ON HOUSING LOAN OF RS.22,100/-. THIS DEDUCTION WAS ALSO NOT CLAIMED BEFORE THE A.O. ACCORDINGLY, IN MY CONSIDERED VIEW, APPELLANT CANNOT CLAIM THIS DEDUCTION DURING THE APPELLATE PROCEEDIN GS. THE APPELLANT HAS ALSO PRAYED FOR DEDUCTION OF PRINCIPAL AMOUNT O F LOAN, WHICH IS AN INTEGRAL PART OF REPAYMENT OF HOUSING LOAN OF RS.3, 03,464 U/S.SOC OF IT. ACT. PERUSAL OF RETURN OF INCOME OF THE APPELLA NT REVEALS THAT APPELLANT HAS NOT MADE ANY CLAIM IN RESPECT OF PRIN CIPAL AMOUNT OF LAND IMBEDED IN REPAYMENT OF HOUSING LOAN IN ITS IN COME-TAX RETURN. THE APPELLANT HAS CLAIMED DEDUCTION U/S.SOC OF THE IT. ACT FOR CO NO.214/AHD/2012 4 RS.88,412/-AND THE SAME WAS ALLOWED BY THE A.O. IN THE ASSESSMENT ORDER. THIS WAY, THE A.O. IS NOT AGGRIEVED BY THE A SSESSMENT ORDER ON THIS ACCOUNT AND ACCORDINGLY AS PER THE PROVISIONS OF SECTION -246 OF IT. ACT THE APPEAL IN RESPECT OF THESE ISSUES DOES NOT LIE BEFORE THIS OFFICE. SECONDLY, AS PER THE RATIO OF GOETZE (INDIA ) LTD. V/S. CIT REPORTED AT 284 ITR 323 (S.C.) THESE DEDUCTIONS CAN NOT BE ALLOWED IN THE APPEAL. IN VIEW OF ABOVE, THIS GROUND OF APPEAL IS DISMISSED. 5. AFTER CONSIDERING THE CLAIM OF THE ASSESSEE, I A M OF THE VIEW THAT THE LD.REVENUE AUTHORITIES HAVE FAILED TO TAKE COGNIZAN CE OF THE ASSESSEES CLAIM. THEREFORE, I SET ASIDE THIS ISSUE TO THE FILE OF TH E AO FOR ADJUDICATION. IN VIEW OF THE ABOVE, THE ISSUE RAISED BY THE ASSESSEE IN T HE CO IS SET ASIDE TO THE FILE OF THE AO FOR ADJUDICATION. 6. IN THE RESULT, THE CO OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 18 TH JULY, 2016 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 18/07/2016