DCIT, Bangalore V. Smt. Priyn N Deshpande, Bangalore

ITA 1157/BANG/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5421 (ITAT-BANGALORE)
• Duration Of Justice: 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 01-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G KAMALDHAR
• Section: 143(3); 153A; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH BEFORE S HRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER I.T.A. NO. 1157 /BANG/201 6 (ASSESSMENT YEAR : 20 06 - 07 ) DY. COMMISSIONER OF INCOME TAX, CIRCLE 6(3)(1), BANGAL ORE. VS. SMT. PRIYN N. DESHPANDE, CASO ORCHARDS, NO.E - 70/19, 8 TH CROSS, RMV EXTN., SADASHIVANAGAR, BANGALORE. APPELLANT RESPONDENT. APPELLANT BY : SHRI G. KAMALDHAR,STANDING COUNSEL. RESPONDENT BY : NONE. DATE OF HEARING : 26.04.2017. DATE OF PRONOUNCEMENT : 28 .04. 201 7 . O R D E R PER SHRI VIJAY P AL RAO, J .M . : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DT. 30.03.2016 OF COMMISSIONER OF INCOME TAX (APPEALS) - 1 , BANGALORE FOR THE ASSESSMENT YEAR 20 06 - 07. 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS : 2 IT A NO. 1157 /BANG/201 6 3. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE DESPITE THE SERVICE OF NOTICE THROUGH ACKNOWLEDGEMENT ON RECORD THEREFORE WE PROPOSE TO HEAR AND DISPOSE OF THIS APPEAL EXPARTE. 4. DURING THE COURSE OF ASSESSMENT FRAMED UNDER SECTION 143(3) R.W.S. 153A & 153C OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT'), THE ASSESSING OFFICER HAS TREATED THE LONG TERM CAPITAL GAIN CLAIMED BY T HE ASSESSEE ON ACCOUNT OF SALE OF PROPERTY AS SHORT TERM CAPITAL GAIN AND 3 IT A NO. 1157 /BANG/201 6 CONSEQUENTLY DENIED THE BENEFIT OF SECTION 54 OF THE ACT. THE ASSESSEE CHALLENGED THE ACTION OF THE ASSESSING OFFICER BEFORE THE CIT (APPEALS). THE CIT (APPEALS) HELD THAT THE CL AIM OF THE ASSESSEE OF LONG TERM CAPITAL GAIN IS CORRECT AND SHE IS ENTITLED FOR EXEMPTION UNDER SECTION 54 OF THE ACT. 5. WE HAVE HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AS WELL AS CONSIDERED THE RELEVANT MATERIAL ON RECORD. WE NOTE THAT THE ASSESSING OFFICER HAS DENIED THE CLAIM OF LTCG ON THE GROUND THAT THE PROPERTY IN QUESTION WAS CONSTRUCTED ONLY DURING JAN., 2003 AND THEREFORE PRIOR TO JAN., 2003 IT CANNOT BE PURCHASED OR HELD BY THE ASSESSEE AS CLAIMED VIDE AGREEMENT DT.24.1.2002. THUS THE PROPERTY SOLD VIDE THE SALE DEED DT.27.6.2005 WAS H ELD BY THE ASSESSING OFFICER AS WAS WITH THE ASSESSEE FROM THE DATE OF POSSESSION TAKEN BY THE ASSESSEE. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS HEAVILY RELIED UPON THE FINDINGS OF THE ASSESSING OFFICER AND SUBMITTTED THAT THE ASSESSING OFFICER HAS RECORDED THE FACT THAT THE CONSTRUCTION OF THE PROPERTY WAS ACTUALLY COMPLETED AS PER CERTIFICATE DT.29.1.2003 AS SHOWN IN THE NO OBJECTION CERTIFICATE ISSUED BY BANGALORE MAHANAGAR PALIKE (BMP) . T HERE FORE THE 4 IT A NO. 1157 /BANG/201 6 CONSTRUCTION OF THE PROPERTY WAS COMPLETED ONLY DURING JAN., 2003 AND NOT A SON 24.1.2002 AS CLAIMED BY THE ASSESSEE. 6. WE DO NOT AGREE WITH THE CONTENTION OF THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THIS POINT SIMPLY BECAUSE OF THE REA SON THAT EVEN IN CASE THE PROPERTY WAS NOT CONSTRUCTED ON 24.1.200 2 THE ASSESSEE ACQUIRED THE RIGHT IN THE PROPERTY ON THE SAID DATE, T HE ASSESSING OFFICER HAS NOT DISPUTED THAT THE ONLY DOCUMENT OF PURCHASE OF THE PROPERTY IN QUESTION IS THE AGREEMENT DT .24.01.2002 AND THEREFORE EVEN IF THE CONSTRUCTION OF THE PROPERTY WAS NOT COMPLETED ON THE SAID DATE , THE RIGHT ACQUIRED OF THE SAID PROPERTY WAS PRIOR TO 3 YEARS FROM THE DATE OF SALE ON 27.6.2005 . THEREFORE THE SALE WAS AFTER A PERIOD OF THREE YEARS FR OM THE DATE OF ACQUISITION/PURCHASE. THE CIT (APPEALS) HAS DECIDED THIS ISSUE IN PARAS 10 & 11 AS UNDER : 5 IT A NO. 1157 /BANG/201 6 IN VIEW OF THE ABOVE DISCUSSION AS WELL AS FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE IMPUGNED ORDER OF THE CIT (APPEALS) QUA THIS ISSUE. 6 IT A NO. 1157 /BANG/201 6 6. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 28TH DAY OF APRIL, 201 7 . SD/ - ( S. JAYARAMAN ) ACCOUNTANT MEMBER SD/ - ( VIJAY PAL RAO ) JUDICIAL MEMBER BANGALORE, DT. 28 .04.2017. *REDDY GP COPY TO : 1 . APPELLANT 2 . RESPONDENT 3 . C.I.T. 4 . CIT(A) 5 . DR, ITAT, BANGALORE. 6 . GUARD FILE. ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL BANGALORE.