Sri Upendra Kumar , Bangalore V. Income Tax Officer Ward-6(3)(2), Bangalore

ITA 1235/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5964 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 16-04-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: BANG
• Assessee Lawyers: V SRINIVASAN SMT P REN
• Keywords: Reopening of assessment; Capital asset; Set aside
• Section: 143(3); 54F; 133A; 234B; 147; 148; 12; 2; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH C BEFORE S HRI N.V. VASUDEVAN , JUDICIAL MEMBER AND SHRI JASON P BOAZ , ACCOUNTANT MEMBER ITA NO. & ASST. YEAR APPELLANT RESPONDENT 1235 & 1236/BANG/2018 2006 - 07 & 2009 - 10 SHRI UPENDRA KUMAR, 111 , JODIDAR, ASWATHAPPA FARM, BYATARAYANAPURA, BENGALURU. INCOME TAX OFFICER, WARD 6(3)(2), BENGALURU. 1237 TO 1239/BANG/2018 2006 - 07, 2009 - 10 & 2010 - 11 SHRI NAVANEETHKUMAR JANARDHAN, JODIDAR, BENGALURU. INCOME TAX OFFICER, WARD 6(3)(2), BENGALURU. 1240 & 1241/BANG/2018 2006 - 07 & 2009 - 10 SMT. VENKATALAKSHMAMMA, JODIDAR, BENGALURU. INCOME TAX OFFICER, WARD 6(3)(2), BENGALURU. 1242, 1243 & 1244/BANG/2018 2006 - 07, 2009 - 10 & 2010 - 11 SHRI ASHWATHNARAYANA, JODIDAR, BENGALURU. INCOME TAX OFFICER, WARD 6(3)(2), BE NGALURU. APPELLANT S BY : SHRI V.SRINIVASAN, ADVOCATE. R E SPONDENT BY : SMT. P. RENUGA DEVI, JCIT (D.R) DATE OF H EARING : 14.06.2018. DATE OF P RONOUNCEMENT : 27 .06 .201 8 . O R D E R PER SHRI JASON P BOAZ, A .M . : THIS BUNCH OF 10 APPEALS FILED BY FOUR DIFFERENT ASSESSEES FOR ASSESSMENT YEARS 2006 - 07 AND 2009 - 10 AND IN SOME CASE FOR ASSESSMENT YEAR 2010 - 11 ALSO, ARE DIRECTED AGAI NST THE SEPARATE ORDERS OF THE 2 IT A NO S . 1235 TO 1244 /BANG/201 8 COM MISSIONER OF INCOME TAX (APPEALS) - 6 , BANGA LORE. SINCE THE FACTS AND ISSUES INVOLVED ARE INTER - CONNECTED, THESE APPEALS WERE HEARD TOGETHER AND WE DEEM IT APPROPRIATE TO DISPOSE THEM OFF BY WAY OF THIS COMBINED ORDER FOR T HE SAKE OF CONVENIENCE. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE AS UNDER : - 2.1 THESE ASSESSEES, WHO ARE ALL FAMILY MEMBERS, ENTERED INTO A JOINT DEVELOPMENT AGREEMENT (JDA) WITH M/S. FORTUNE PROJECTS VIDE REGISTERED JDA DOCUMENT N O .BNG / YLNK/84 67/2005 - 06 DT.26.11.2005 FOR THE VACANT LAND SITUATED AT SY. NO.42/1B, BYATARAYANAPURA VILLAGE,S AHAKARANAGAR, BANGALORE NORTH MEASURING 0.4 GUNTAS. A SURVEY UNDER SECTION 133A OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') WAS CONDUCTED IN THE CASE OF SRI CHENNAKESHAVA MURTHY & OTHERS ON 26.11.2012, WHEREIN IT WAS NOTICED THAT THESE ASSESSEE'S HAD ALSO ENTERED INTO A JDA WITH THIS DEVELOPER. BASED ON THIS INFORMATION, THE ASSESSING OFFICER INITIATED PROCEEDINGS UNDER SECTION 147 OF THE ACT AND REOPENED THE ASSESSMENTS IN THESE FOUR CASES FOR THE RELEVANT ASSESSMENT YEAR BY ISSUE OF NOTICES UNDER SECTION 148 OF THE ACT DT.19.3.2013 AND IN SOME CASES DT.13.6.2013. IN RESPONSE THERETO, ALL THE ASSESSEES HAD FILED RETURNS OF INCOME DECLARING NIL INCOME. I N 3 IT A NO S . 1235 TO 1244 /BANG/201 8 ASSESSMENT YEAR 2006 - 07, IT WAS THE COMM ON CONTENTION OF ALL FOUR ASSESSEES THAT THERE WAS NO TRANSFER ON THE MERE EXECUTION OF THE JDA DURING THE PERIOD RELEVANT TO ASSESSMENT YEAR 2006 - 07. THE ASSESSING OFFICER, HOWEVER, OVERRULED THE ASSESSEES CONTEN TIONS/OBJECTIONS AND BROUGHT TO TAX IN THE HANDS OF ALL FOUR ASSESSEES THE CAPITAL GAINS ARISING AS A CONSEQUENCE OF THE JDA AGREEMENT UNDER SECTION 143(3) R.W.S. 147 OF THE ACT FOR THE ASSESSMENT YEAR 2006 - 07 ALL DATED 28.3.2014. 2.2 FOR ASSESSME NT YEAR 2009 - 10, PURSUANT TO ISSUE OF NOTICES UNDER SECTION 148 OF THE ACT ON 13.06.2013, ALL THE FOUR ASSESSEES H AD FILED RETURNS OF INCOME ON 19.06.2013 REPORTING THE CAPITAL GAINS ARISING FROM SALE OF SOME FLAT / FLATS RECEIVED BY THEM ON ACCOUNT OF T HE JDA. IN THESE RETURNS, THE ASSESSEES CLAIMED THAT THE CAPITAL GAINS ON SALE OF THE FLATS HAS TO BE TAXED AS LONG TERM CAPITAL GAINS (LTCG) WITH REGARD TO THE TRANSFER OF UNDIVIDED SHARE IN THE LAND AND AS SHORT TERM CAPITAL GAINS (STCG) FOR THE SALE OF THE BUILT UP AREA OF THE APARTMENT. WHILE PASSING THE ORDERS OF ASSESSMENT OF ALL THE FOUR ASSESSEE'S FOR ASSESSMENT YEAR 2009 - 10 ALL DT.31.3.2015; THE ASSESSING OFFICER COMPUTED THE CAPITAL GAINS ON SALE OF THE APARTMENTS UNDER THE HEAD STCG WHICH WAS LOWER THAN THE CAPITAL GAINS DECLARED BY THE ASSESSEE AS LTCG . THEREFORE, THE 4 IT A NO S . 1235 TO 1244 /BANG/201 8 ASSESSING OFFICER MADE A PROTECTIVE ADDITION OF THE DIFFERENCE BETWEEN THE CAPITAL GAINS COMPUTED BY HIM AND THE CAPITAL GAINS OFFERED BY THE ASSESSEE IN THE RETURNS OF INCOM E FOR ASSESSMENT YEAR 2009 - 10, FILED IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE ACT. 2.3 SIMILARLY, IN THE CASE OF TWO OF THE ASSESSEES, SRI NAVANEETKUMAR JANARDHAN & SHRI ASHWATHNARAYANA, THESE TWO ASSESSEES SOLD CERTAIN FLAT / FLATS IN THE PREVI OUS YEAR RELEVANT TO ASSESSMENT YEAR 2010 - 11. IN RESPONSE TO NOTICES ISSUED UNDER SECTION 148 OF THE ACT DT.13.6.2013, THESE TWO ASSESSEE'S FILED THEIR RETURNS OF INCOME ON 19.6.2013. THE ASSESSING OFFICER PROCEEDED TO COMPLETE THE ASSESSMENTS FOR ASSES SMENT YEAR 2010 - 11 VIDE ORDER S DT.31.3.2015 WHEREIN HE ASSESSED THE INCOME ON THE SAME BASIS AS IN ASSESSMENT YEAR 2009 - 10. 2.4 AGGRIEVE D BY THE AFORESAID ORDERS OF ASSESSMENT FOR ASSESSMENT YEARS 2006 - 07, 2009 - 10 AND 2010 - 11, THE FOUR ASSESSEES FILED APPEALS BEFORE THE CIT (APPEALS) 6, BANGALORE. THE LEARNED CIT (APPEALS) DISPOSED OFF THE APPEALS VIDE THE IMPUGNED SEPARATE ORDERS. THE LEARNED CIT (APPEALS) UPHELD THE ASSESSMENT OF CAPITAL GAINS FOR ASSESSMENT YEAR 2006 - 07 AND REJECTED THE ASSESSEE 'S CLAIM FOR EXEMPTION / DEDUCTION UNDER SECTION 54F OF THE ACT. THE LEARNED CIT 5 IT A NO S . 1235 TO 1244 /BANG/201 8 (APPEALS) ALSO CONFIRMED / UPHELD THE COMPUTATION OF CAPITAL GAINS BY ADOPTING THE COST OF CONSTRUCTION AT RS.800 PER SQ. FT. IN RESPECT OF THE APPEALS RELATING TO ASSESSM ENT YEARS 2009 - 10 AND 2010 - 11, THE LEARNED CIT (APPEALS) UPHELD THE COMPUTATION OF STCG AND DELETED THE ADDITIONS MADE ON PROTECTIVE BASIS. 3. THE FOUR ASSESSEES, BEING AGGRIEVED BY THE ORDERS OF THE CIT (APPEALS) 6, BANGALORE FOR ASSESSMENT YEARS 2006 - 07, 2009 - 10 AND IN THE CASE OF TWO ASSESSEES ALSO FOR ASSESSMENT YEAR 2010 - 11, HAVE FILED THESE TEN APPEALS BEFORE US. ASSESSEE'S APPEALS FOR ASSESSMENT YEAR 2006 - 07. 4. WE SHALL FIRST TAKE UP FOR DISPOSAL, THE APPEALS FILED BY ALL FOUR ASSESSEES FOR ASSESSMENT YEAR 2006 - 07. THE GROUNDS RAISED BY THE ASSESSEE'S IN THESE APPEALS ARE AS UNDER : 4.1 SHRI UPENDRA KUMAR (A.Y. 2006 - 07) 1. THE ORDER S OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPEL LANT ARE OPPOSED TO LAW, EQUITY, WEIG HT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ORDER OF RE - ASSESSMENT IS BAD IN LAW AND VOID - AB - INITIO FOR WANT OF REQUITE JURISDICTION SINCE THE MANDATORY REQUIREMENTS TO ASSUME JURISDICTION U/S 148 OF THE ACT DID NOT EXIST AND HAVE NOT BEEN COMPLIED WITH AND CONSEQUENTLY THE RE - ASSESSMENT REQUIRES TO BE CANCELLED. 6 IT A NO S . 1235 TO 1244 /BANG/201 8 3. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN ASSESSING THE LONG TERM CAPITAL GAINS AT RS. 47,03,753/ - FOR THE YEAR UNDER APPEAL UNDER THE FACTS AND IN THE CIRCUMSTAN CES OF THE APPELLANT S CASE. 4. WITHOUT PREJUDICE TO THE ABOVE, THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN RESTRICTING THE DEDUCTION U/S 54F TO THE EXTENT OF RS.12, 96,0 00/ - AND INSTEAD OUGHT TO H AVE ALLOWED A DEDUCTION OF RS.59 , 99 , 753 / - U/S 54F OF THE ACT AND THEREBY COMPUTED A LONG TERM CAPITAL GAIN OF RS. NIL UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT S CASE. 5. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WITH THE HON BLE CCIT/DG, THE APPELLANT DENIES HIMSELF LIABLE TO BE CHARGED TO INT EREST U/S 234 - A, 234 - B AND 234 - C OF THE ACT, WHICH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT S CASE AND THE LEVY DESERVES TO BE CANCELLED. 6. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, YOUR APPEL LANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF THE COSTS. 4.2 SMT. VENKATALAKSHMAMMA NARAYANAPPA (A.Y. 2006 - 07) 1. THE ORDER S OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPEL LANT ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ORDER OF RE - ASSESSMENT IS BAD IN LAW AND VOID - AB - INITIO FOR WANT OF REQUITE JURISDICTION SINCE THE MANDATORY REQUIREMENTS TO ASSUME JURISDICTION U/S 148 OF THE ACT DID NOT EXIST AND HAVE NOT BEEN COMPLIED WITH AND CONSEQUENTLY THE RE - ASSESSMENT REQUIRES TO BE CANCELLED. 3. THE AUTHORITIES BELOW ARE NO T JUSTIFIED IN ASSESSING THE LONG TERM CAPITAL GAINS AT RS. 54,42,009/ - FOR THE YEAR UNDER APPEAL UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT S CASE. 4. WITHOUT PREJUDICE TO THE ABOVE, THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN RESTRICTING T HE DEDUCTION U/S 54F TO THE EXTENT OF RS.12, 96,000 / - AND INSTEAD OUGHT TO HAVE ALLOWED A DEDUCTION OF RS. 67,38,009 / - U/S 54F OF THE ACT AND THEREBY COMPUTED A LONG TERM CAPITAL GAIN OF RS. NIL UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT S CAS E. 7 IT A NO S . 1235 TO 1244 /BANG/201 8 5. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WITH THE HON BLE CCIT/DG, THE APPELLANT DENIES HIMSELF LIABLE TO BE CHARGED TO INTEREST U/S 234 - A, 234 - B AND 234 - C OF THE ACT, WHICH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT S CASE AND THE LEVY DESERVES TO BE CANCELLED. 6. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUT ING THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF THE COSTS. 4.3 SHRI NAVANEETH KUMAR JANARDHAN (A.Y. 2006 - 07) 1. THE ORDER S OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPEL LANT ARE OPPOSED TO LAW, EQ UITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ORDER OF RE - ASSESSMENT IS BAD IN LAW AND VOID - AB - INITIO FOR WANT OF REQUITE JURISDICTION SINCE THE MANDATORY REQUIREMENTS TO ASSUME JURISDICTION U/S 148 OF THE ACT DID NOT EXIST AND HAVE NOT BEEN COMPLIED WITH AND CONSEQUENTLY THE RE - ASSESSMENT REQUIRES TO BE CANCELLED. 3. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN ASSESSING THE LONG TERM CAPITAL GAINS AT RS. 32,34,100/ - FOR THE YEAR UNDER APPEAL UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT S CASE. 4. WITHOUT PREJUDICE TO THE ABOVE, THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN RESTRICTING THE DEDUCTION U/S 54F TO THE EXTENT OF RS.12, 96 , 0 00/ - AND INSTEAD OUGHT TO HAVE ALLOWED A DEDUCTION OF RS. 45,30,100/ - U/S 54F OF THE ACT AND THEREBY COMPUTED A LONG TERM CAPITAL GAIN OF RS. NIL UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT S CASE. 5. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WITH THE HON BLE CCIT/DG, THE APPELLANT DENIES HIMSELF LIABLE TO BE CHA RGED TO INTEREST U/S 234 - A, 234 - B AND 234 - C OF THE ACT, WHICH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT S CASE AND THE LEVY DESERVES TO BE CANCELLED. 6. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF THE COSTS. 8 IT A NO S . 1235 TO 1244 /BANG/201 8 4.4 SHRI ASWATHANARAYANA JA NARDHAN KUMAR (A.Y. 2006 - 07) 1. THE ORDER S OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPEL LANT ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ORDER OF RE - ASSESSMENT IS BAD IN L AW AND VOID - AB - INITIO FOR WANT OF REQUITE JURISDICTION SINCE THE MANDATORY REQUIREMENTS TO ASSUME JURISDICTION U/S 148 OF THE ACT DID NOT EXIST AND HAVE NOT BEEN COMPLIED WITH AND CONSEQUENTLY THE RE - ASSESSMENT REQUIRES TO BE CANCELLED. 3. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN ASSESSING THE LONG TERM CAPITAL GAINS AT RS. 43,48,456/ - FOR THE YEAR UNDER APPEAL UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT S CASE. 4. WITHOUT PREJUDICE TO THE ABOVE, THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN RESTRICTING THE DEDUCTION U/S 54F TO THE EXTENT OF RS.12,37,600/ - AND INSTEAD OUGHT TO HAVE ALLOWED A DEDUCTION OF RS.55,86,056/ - U/S 54F OF THE ACT AND THEREBY COMPUTED A LONG TERM CAPITAL GAIN OF RS. NIL UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE A PPELLANT S CASE. 5. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WITH THE HON BLE CCIT/DG, THE APPELLANT DENIES HIMSELF LIABLE TO BE CHARGED TO INTEREST U/S 234 - A, 234 - B AND 234 - C OF THE ACT, WHICH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELL ANT S CASE AND THE LEVY DESERVES TO BE CANCELLED. 6. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED C OSTS IN PROSECUTING THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF THE COSTS. 9 IT A NO S . 1235 TO 1244 /BANG/201 8 4.5 FROM A PERUSAL OF THE GROUNDS OF APPEAL RAISED IN THESE FOUR APPEALS (SUPRA), IT CAN BE SEEN THAT THE GROUNDS ARE COMMON IN ALL APPEALS , EXCEPT FOR THE FIGURES OF CAPITAL GAINS AND THE EXEMPTION CLAIMED UNDER SECTION 54F OF THE ACT. 5. GROUND NOS. 1 & 6 . 5.1 THESE GROUNDS (SUPRA) ARE GENERAL IN NATURE AND NOT BEING URGED BEFORE US, THERE IS NO ADJUDICATION CALLED FOR THEREON. 6 . GROUND NOS. 2 & 3 . 6.1 IN THE COURSE OF HEARING BEFORE US, THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE GROUND NOS.2 & 3 RELATING TO THE REOPENING OF THE ASSESSMENT AND COMPUTATION OF CAPITAL GAINS FOR ASSESSMENT YE AR 2006 - 07 BY ADOPTING RS.800 PER SQ. FT. AS COST OF CONSTRUCTION OF THE BUILT - UP AREA ARE NOT PRESSED BY THE ASSESSEES. ACCORDINGLY, THESE GROUND NOS.2 & 3 ARE DISMISSED AS NOT PRESSED AND THE LTCG COMPUTED BY THE ASSESSING OFFICER IS UPHELD. 7. GROUND NO.5 - CHARGING OF INTEREST U/S.234A, 234B & 234C OF THE ACT . 7.1 IN THIS GROUND (SUPRA) , THE ASSESSEE S DEN Y THEM SE L VES LIABLE TO BE CHARGED INTEREST UNDER SECTIONS 234A, 234B & 234 C OF THE ACT. THE CHARGING OF INTEREST IS CONSEQUENTIAL A ND MANDATORY AND THE ASSESSING 10 IT A NO S . 1235 TO 1244 /BANG/201 8 OFFICER HAS NO DISCRETION IN THE MATTER. THIS PROPOSITION WAS UPHELD BY THE HON'BLE APEX COURT IN THE CASE OF ANJUM H GHASWALA (252 ITR 1) (SC), AND WE , THEREFORE , UPHOLD THE ACTION OF THE ASSESSING OFFICER IN CHARGING THE S AID INTEREST UNDER SECTION 234A, 234B AND 234 C OF THE ACT. THE ASSESSING OFFICER IS, HOWEVER, DIRECTED TO RECOMPUTE THE INTEREST CHARGEABLE, IF ANY, UNDER SECTION S 234A, 234B & 234 C OF THE ACT WHILE GIVING EFFECT TO THIS ORDER. 8. GROUND NO.4. 8.1 THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE, IN SUPPORT OF THE GROUNDS RAISED (SUPRA), SUBMITTED THAT THE FOUR ASSESSEES, AS PER THE JDA, ARE ENTITLED TO RECEIVE THE FOLLOWING BUILT - UP AREA AFTER DEVELOPMENT OF THE PROPERTY AS UNDER : - 1. SHRI UPENDRA KUMAR 7,092 SQ. FT. 5 FLATS 2. SMT. VENKATALAKSHMAMMA 7,964 SQ. FT. 5 FLATS 3. SHRI NAVANEETH JANARDHAN KUMAR 5,355 SQ. FT. 4 FLATS. 4. SHRI ASWATHNARAYANA JANARDHAN KUMAR 6,601 SQ. FT. 4 FLATS. 8.2 ACCORDING TO THE LEARNED AUTHORISED RE PRESENTATIVE FOR THE ASSESSEE, IN THE ORDERS OF ASSESSMENT, THE ASSESSING OFFICER HAD ALLOWED EXEMPTION UNDER SECTION 54F OF THE ACT IN RESPECT OF ONE RESIDENTIAL FLAT, INSTEAD OF ALLOWING IT IN RESPECT OF ALL THE FLATS RECEIVED BY EACH OF THE 11 IT A NO S . 1235 TO 1244 /BANG/201 8 ABOVE FOUR A SSESSEES THAT CONSTITUTED A RESIDENTIAL HOUSE FOR THE PURPOSE OF ALLOWING EXEMPTION UNDER SECTION 54F. IN SUPPORT OF THE AFORESAID PROPOSITION / CONTENTION, THE LEARNED AUTHORISED REPRESENTATIVE PLACED RELIANCE ON THE DECISION OF THE CO - ORDINATE BENCH OF ITAT, BANGALORE IN THE CASE OF SMT. NETHRAVATHI IN ITA NO.630/BANG/2017 DT.25.4.2018 FOR ASSESSMENT YEAR 2014 - 15. 8.3 PER CONTRA, THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR REVENUE SUPPORTED THE IMPUGNED ORDERS OF THE LEARNED CIT (APPEALS) AND SU BMITTED THAT THE PROVISIONS OF SECTION 54F OF THE ACT DO NOT ALLOW FOR EXEMPTION IN RESPECT OF MORE THAN ONE HOUSE. 8.4.1 WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD; INCLUDING THE JUDICIAL PRONOUNCEME NTS CITED (SUPRA). THE CO - ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SMT. NETHRAVATHI (SUPRA) HAS CONSIDERED THE ELIGIBILITY OF THE ASSESSEE TO CLAIM EXEMPTION UNDER SECTION 54F OF THE ACT IN RESPECT OF MORE THAN ONE RESIDENTIAL FLAT SITUATED IN A RES IDENTIAL COMPLEX, BY CONSIDERING THE DECISIONS OF THE HON'BLE KARNATAKA HIGH COURT. AT PARA 11 OF ITS ORDER IN THE CASE OF SMT. NETHRAVATHI (SUPRA), THE CO - ORDINATE BENCH HAS HELD AS UNDER : - 12 IT A NO S . 1235 TO 1244 /BANG/201 8 13 IT A NO S . 1235 TO 1244 /BANG/201 8 14 IT A NO S . 1235 TO 1244 /BANG/201 8 8.4.2 FOLLOWING THE AFORESAID DECISION OF THE CO - ORDINATE BENCH IN THE CASE OF SMT. NETHRAVATHI (SUPRA), WE HOLD THAT THE FOUR ASSESSEES BEFORE US ARE ENTITLED TO CLAIM EXEMPTION IN RESPECT OF ALL THE FOUR O R FIVE FLATS THAT WERE RECEIVED BY THEM AS PER THE TERMS OF THE JDA AND ALSO THAT THE AUTHORITI ES BELOW ARE NOT JUSTIFIED IN RESTRICTING THE ASSESSEES CLAIM FOR EXEMPTION / DEDUCTION UNDER SECTION 54F OF THE ACT TO ONY ONE FLAT. WE ACCORDINGLY DIRECT THE ASSESSING OFFICER TO ALLOW THE ASSESSEES EXEMPTION UNDER SECTION 54F OF THE ACT AS HELD ABOVE. CONSEQUENTLY, GROUND NO.4 OF ASSESSEES APPEALS ARE ALLOWED. 9. IN THE RESULT, THE FOUR ASSESSEES APPEALS FOR ASSESSMENT YEAR 2006 - 07 ARE PARTLY ALLOWED. ASSESSEES APPEALS FOR A.Y. 2009 - 10. 10. IN THE ASSESSEES APPEAL FOR ASSESSMENT YEAR 2009 - 1 0, THE ASSESSEES HAVE RAISED THE FOLLOWING GROUNDS : - 10.1 SHRI NAVANEETH KUMAR (A.Y. 2009 - 10) 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPELLANT ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ORDER OF RE - ASSESSMENT IS BAD IN LAW AND VOID - AB - INITIO FOR WANT OF REQUITE JURISDICTION SINCE THE MANDATORY REQUIREMENTS TO ASSUME JURISDICTION U/S 148 OF THE ACT DID NOT EXIST AND HAVE NOT BEEN COMPLIED WITH AND CONSEQU ENTLY, THE RE - ASSESSMENT REQUIRES TO BE CANCELLED. 15 IT A NO S . 1235 TO 1244 /BANG/201 8 3. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN ASSESSING A SUM OF RS.11,91,908/ - AS SHORT TERM CAPITAL GAINS UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT S CASE. 4. WITHOUT PREJUDICE TO THE RIG HT TO SEEK WAIVER WITH THE HON BLE CCIT/DG, THE APPELLANT DENIES HIMSELF LIABLE TO BE CHARGED TO INTEREST U/S 234 - A, 234 - B AND 234 - C OF THE ACT, WHICH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT S CASE AND THE LEVY DESERVES TO BE CANCELLED. 5 . FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO ORDER FOR TH E REFUND OF THE INSTITUTION FEES AS PART OF THE COSTS. 10.2 SHRI UPENDRA KUMAR (A.Y. 2009 - 10) 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPELLANT ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AN D CIRCUMSTANCES OF THE CASE. 2. THE ORDER OF RE - ASSESSMENT IS BAD IN LAW AND VOID - AB - INITIO FOR WANT OF REQUITE JURISDICTION SINCE THE MANDATORY REQUIREMENTS TO ASSUME JURISDICTION U/S 148 OF THE ACT DID NOT EXIST AND HAVE NOT BEEN COMPLIED WITH AND CONSEQ UENTLY, THE RE - ASSESSMENT REQUIRES TO BE CANCELLED. 3. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN ASSESSING A SUM OF RS.15,61,930/ - AS SHORT TERM CAPITAL GAINS UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT S CASE. 4. WITHOUT PREJUDICE TO THE RI GHT TO SEEK WAIVER WITH THE HON BLE CCIT/DG, THE APPELLANT DENIES HIMSELF LIABLE TO BE CHARGED TO INTEREST U/S 234 - A, 234 - B AND 234 - C OF THE ACT, WHICH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT S CASE AND THE LEVY DESERVES TO BE CANCELLED. 5. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO ORDER FOR T HE REFUND OF THE INSTITUTION FEES AS PART OF THE COSTS. 16 IT A NO S . 1235 TO 1244 /BANG/201 8 10.3 SMT. VENKATALAKSHMAMMA (A.Y. 2009 - 10) 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPELLANT ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES , FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ORDER OF RE - ASSESSMENT IS BAD IN LAW AND VOID - AB - INITIO FOR WANT OF REQUITE JURISDICTION SINCE THE MANDATORY REQUIREMENTS TO ASSUME JURISDICTION U/S 148 OF THE ACT DID NOT EXIST AND HAVE NOT BEEN COMPLIED WITH AND CONSEQUENTLY, THE RE - ASSESSMENT REQUIRES TO BE CANCELLED. 3. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN ASSESSING A SUM OF RS.15,80,512/ - AS SHORT TERM CAPITAL GAINS UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT S CASE. 4. THE AUTHORITIES B ELOW ARE NOT JUSTIFIED IN ASSESSING A SUM OF RS.20,19,187/ - AS SHORT TERM CAPITAL GAINS UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT S CASE. 5. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WITH THE HON BLE CCIT/DG, THE APPELLANT DENIES HIMS ELF LIABLE TO BE CHARGED TO INTEREST U/S 234 - A, 234 - B AND 234 - C OF THE ACT, WHICH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT S CASE AND THE LEVY DESERVES TO BE CANCELLED. 6. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HE ARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF THE COSTS. 10.4 SHRI ASHWATHANARAYANA JANARDHAN KUMAR (A.Y. 2009 - 10) 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPELLANT ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ORDER OF R E - ASSESSMENT IS BAD IN LAW AND VOID - AB - INITIO FOR WANT OF REQUITE JURISDICTION SINCE THE MANDATORY REQUIREMENTS TO ASSUME JURISDICTION U/S 148 OF THE ACT DID NOT EXIST AND HAVE NOT BEEN COMPLIED WITH AND CONSEQUENTLY, THE RE - ASSESSMENT REQUIRES TO BE CANCE LLED. 17 IT A NO S . 1235 TO 1244 /BANG/201 8 3. THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN ASSESSING A SUM OF RS.15,62,474/ - AS SHORT TERM CAPITAL GAINS UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT S CASE. 4. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WITH THE HON BLE CCIT/DG, T HE APPELLANT DENIES HIMSELF LIABLE TO BE CHARGED TO INTEREST U/S 234 - A, 234 - B AND 234 - C OF THE ACT, WHICH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT S CASE AND THE LEVY DESERVES TO BE CANCELLED. 5. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF T HE COSTS. 11. GROUND NOS.1 & 5 ( 6 IN CASE OF SMT. VENKATALAKSHMAMMA ) FOR ASSESSMENT YEAR 2009 - 10 ARE GENERAL IN NATURE AND THEREFORE NO ADJUDICATION IS CALLED FOR THEREON. 12. IN GROUND NO.4 (5 IN THE CASE OF SMT. VENKATALAKSHMAMMA) , THE ASSESS EES DENY HERSELF LIABLE TO BE CHARGED INTEREST UNDER SECTIONS 234A, 234B & 234C OF THE ACT. THE CHARGING OF INTEREST IS CONSEQUENTIAL AND MANDATORY AND THE ASSESSING OFFICER HAS NO DISCRETION IN THE MATTER. THIS PROPOSITION WAS UPHELD BY THE HON'BLE APE X COURT IN THE CASE OF ANJUM H GHASWALA (252 ITR 1) (SC), AND WE, THEREFORE, UPHOLD THE ACTION OF THE ASSESSING OFFICER IN CHARGING THE SAID INTEREST. THE ASSESSING OFFICER IS, HOWEVER, DIRECTED TO RECOMPUTE THE INTEREST CHARGEABLE, IF ANY, UNDER SECTIONS 234A, 234B & 234C OF THE ACT WHILE GIVING EFFECT TO THIS ORDER. 18 IT A NO S . 1235 TO 1244 /BANG/201 8 13. GROUND NO.2 13.1 IN THE COURSE OF HEARING BEFORE US, THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS NOT PRESSING GROUND NO.2 (SUPRA) CHALLE NGING THE REOPENING OF THE ASSESSMENTS FOR ASSESSMENT YEAR 2009 - 10 IN THE CASE OF ALL FOUR ASSESSEES. CONSEQUENTLY, GROUND NO.2 IN ALL THE FOUR APPEALS OF THE ASSESSEE ON T HIS ISSUE ARE DISMISSED AS NOT PRESSED. 14. GROUND NO.4 14.1 IN THIS GROU ND (SUPRA), THE LEARNED AUTHORISED REPRESENTATIVE FOR THE FOUR ASSESSEES SUBMITTED THAT THE ASSESSING OFFICER HAS TAXED THE CAPITAL GAINS ON SALE OF FLAT AS STCG WITHOUT CONSIDERING THAT THE ASSESSEE HAD SOLD THE UNDIVIDED INTEREST IN THE LAND AND BUILT U P AREA WHILE SELLING THE FLATS. ACCORDING TO THE LEARNED AUTHORISED REPRESENTATIVE, THE UNDIVIDED INTEREST IN LAND HELD BY THE ASSESSEE'S WAS A LONG TERM CAPITAL ASSET AND THE BUILT UP AREA WAS A SHORT TERM ASSET AND THEREFORE, THE CONSIDERATION RECEIVED ON SALE OF THE FLAT HAS TO BE BIFURCATED BETWEEN THE CONSIDERATION FOR THE SALE OF LAND CONSIDERATION FOR SALE OF BUILDING. THE LEARNED AUTHORISED REPRESENTATIVE POINTED OUT THAT THE ASSESSEE S HAD ADOPTED THE SAME APPROACH WHILE FILING THE RETURN S OF INC OME IN 19 IT A NO S . 1235 TO 1244 /BANG/201 8 RESPONSE TO NOTICE S UNDER SECTION 148 OF THE ACT. THE ASSESSING OFFICER, HOWEVER, COMPUTED THE CAPITAL GAINS ENTIRELY A S STCG, WHICH, THE LEARNED AUTHORISED REPRESENTATIVE CONTENDS IS NOT PERMISSIBLE AS PER THE JUDGMENT OF THE HON'BLE KARNATAKA HI GH COURT IN THE CASE OF CIT VS. C.R. SUBRAMANIAN (242 ITR 342) (KAR.) 14.2 PER CONTRA, THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR REVENUE SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 14.3.1 WE HAVE HEARD THE LEARNED AUTHORISED REPRESENTA TIVE AS WELL AS LEARNED DEPARTMENTAL REPRESENTATIVE AND CONSIDERED THE RELEVANT MATERIAL ON RECORD; INCLUDING THE JUDICIAL PRONOUNCEMENT CITED (SUPRA). THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF C R SUBRAMANIAN (SUPRA), NOTED THAT THE FACTS OF THE CASE WERE THAT THE ASSESSEE, AN INDIVIDUAL, PURCHASED A SITE IN 1976, PUT UP A BUILDING THEREON IN 1980 AND SOLD THE SAME IN THE ACCOUNTING YEAR RELEVANT TO ASSESSMENT YEAR 1981 - 82. THE ASSESSEE TREATED THE CAPITAL GAIN EXISTING FROM THE SALE OF LAND AS LTCG BECAUSE THERE WAS A GAP OF MORE THAN THREE YEARS FROM THE DATE OF PURCHASE TO THE DATE OF SALE. THE CAPITAL GAINS FROM THE SALE OF BUILDING WAS SHOWN AS STCG. THE ASSESSING OFFICER 20 IT A NO S . 1235 TO 1244 /BANG/201 8 REJECTED THE ASSESSEE'S CLAIM, BUT ON APPEAL, THE TRIBUNAL ACCEPTED THE ASSESSEE'S CLAIM. 14.3.2 ON A REFERENCE, IT WAS HELD BY THE HON'BLE HIGH COURT HELD THAT THE TRIBUNAL WAS RIGHT IN HOLDING THAT THE SITE AND BUILDING WERE SEPARABLE ASSETS FOR THE PURPOSE OF CAPITAL GAINS AND THAT THE PROFITS ARISING FROM THE SAL E OF SITE WAS REQUIRED TO BE CONSIDERED AS LTCG AND THAT THE PROFITS ARISING FROM SALE OF THE BUILDING SHOULD BE CONSIDERED UNDER STCG. 14.3.3 RESPECTFULLY FOLLOWING THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF C R SUBRAMANIAN (SUP RA), THE COMPUTATION OF STCG ON SALE OF LAND AND APARTMENTS BY THE AUTHORITIES BELOW IS SET ASIDE. THE ASSESSING OFFICER IS DIRECTED TO ASSESS THE CAPITAL GAINS ARISING ON SALE OF UNDIVIDED INTEREST IN LAND AS LTCG AND CAPITAL GAINS ON SALE OF BUILT UP AR EA AS STCG. FOR THIS PURPOSE, THE TOTAL CONSIDERATION RECEIVED BY THE ASSESSEES FOR SALE OF FLATS HAS TO BE BIFURCATED BETWEEN LAND AND BUILDING ON A RATIONAL BASIS. IT IS SEEN THAT THE ASSESSEE HAS WORKED OUT THE CONSIDERATION TOWARDS SALE OF UNDIVIDED INTEREST IN LAND AT RS.2,600 PER SQ. FT. THE ASSESSING OFFICER MAY EXERCISE THE SAID RATE ADOPTED BY THESE FOUR ASSESSEES AND DETERMINE THE SALE CONSIDERATION FOR LAND AND 21 IT A NO S . 1235 TO 1244 /BANG/201 8 BUILDING AFTER DUE INQUIRY. ACCORDINGLY, WE SET ASIDE THE COMPUTATION OF CAPITA L GAINS AND RESTORE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR EXAMINATION IN THE LIGHT OF OUR ABOVE OBSERVATIONS / DIRECTIONS. CONSEQUENTLY, GROUND NO.4 OF THE ASSESSEES APPEALS ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSE. 15. IN THE RES ULT, THE ASSESSEES APPEALS FOR ASSESSMENT YEAR 2009 - 10 ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. APPEALS OF SHRI NAVNEETH KUMAR AND SHRI ASWATHNARAYANA (A.Y. 2010 - 11) 1 6 . IN THESE APPEALS, THESE TWO ASSESSEES HAVE RAISED THE FOLLOWING GROUNDS. 1 6 .1 SHRI NAVNEETH KUMAR JANARDHAN (A.Y. 2010 - 11) 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPELLANT ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ORDER OF RE - A SSESSMENT IS BAD IN LAW AND VOID - AB - INITIO FOR WANT OF REQUITE JURISDICTION SINCE THE MANDATORY REQUIREMENTS TO ASSUME JURISDICTION U/S 148 OF THE ACT DID NOT EXIST AND HAVE NOT BEEN COMPLIED WITH AND CONSEQUENTLY, THE RE - ASSESSMENT REQUIRES TO BE CANCELLE D. 3. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WITH THE HON BLE CCIT/DG, THE APPELLANT DENIES HIMSELF LIABLE TO BE CHARGED TO INTEREST U/S 234 - A, 234 - B AND 234 - C OF THE ACT, WHICH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT S CASE AND TH E LEVY DESERVES TO BE CANCELLED. 22 IT A NO S . 1235 TO 1244 /BANG/201 8 4. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECU TING THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF THE COSTS. 1 6 .2 SHRI ASHWATHNARAYANA (A.Y. 2010 - 11) 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPELLANT ARE OPPOSED TO LAW, EQUITY, WEIG HT OF EVIDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ORDER OF RE - ASSESSMENT IS BAD IN LAW AND VOID - AB - INITIO FOR WANT OF REQUITE JURISDICTION SINCE THE MANDATORY REQUIREMENTS TO ASSUME JURISDICTION U/S 148 OF THE ACT DID NOT EXIST AND HAVE NOT BEEN COMPLIED WITH AND CONSEQUENTLY, THE RE - ASSESSMENT REQUIRES TO BE CANCELLED. 3. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WITH THE HON BLE CCIT/DG, THE APPELLANT DENIES HIMSELF LIABLE TO BE CHARGED TO INTEREST U/S 234 - A, 234 - B AND 234 - C O F THE ACT, WHICH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT S CASE AND THE LEVY DESERVES TO BE CANCELLED. 4. F OR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRAYS THAT THE A PPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF THE COSTS. 1 7 . GROUND NOS.1 & 4 . 1 7 .1 THESE GROUNDS 1 AND 4 (SUPRA) BEING GENERAL IN NATURE, NO ADJUDICATION IS CALLED FOR THEREON. 23 IT A NO S . 1235 TO 1244 /BANG/201 8 1 8 . GROUND NO.3 CHARGING OF INTEREST U/S.234A, 234B & 234C . 1 8 .1 IN THIS GROUND (SUPRA), THE ASSESSEES DENIES THEMSEVES LIABLE TO BE CHARGED INTEREST UNDER SECTIONS 234A, 234B & 234C OF THE ACT. THE CHARGING OF INTEREST IS CONSEQUENTIAL AND MANDATORY AND THE ASSESSING OFFICER HAS NO DISCRETION IN THE MATTER. THIS PROPOSITION WAS UPHELD BY THE HON'BLE APEX COURT IN THE CASE OF ANJUM H GHASWALA (252 ITR 1) (SC), AND WE, THEREFORE, UPH OLD THE ACTION OF THE ASSESSING OFFICER IN CHARGING THE SAID INTEREST. THE ASSESSING OFFICER IS, HOWEVER, DIRECTED TO RECOMPUTE THE INTEREST CHARGEABLE, IF ANY, UNDER SECTIONS 234A, 234B & 234C OF THE ACT WHILE GIVING EFFECT TO THIS ORDER. 1 9 . GROUND NO.2 1 9 .1 IN THE COURSE OF HEARING BEFORE US, THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS NOT PRESSING GROUND NO.2 (SUPRA) CHALLENGING THE REOPENING OF ASSESSMENTS FOR ASSESSMENT YEAR 2010 - 11 IN THE CASE OF TH ESE TWO ASSESSEES. CONSEQUENTLY, GROUND NO.2 IN THESE TWO APPEALS OF THE AFORESAID TWO ASSESSEES ON THIS ISSUE ARE DISMISSED AS NOT PRESSED. 24 IT A NO S . 1235 TO 1244 /BANG/201 8 20. IN THE RESULT, THE TWO ASSESSEES APPEALS FOR ASSESSMENT YEAR 2010 - 11 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 27TH DAY OF JUNE, 201 8 . SD/ - (N.V. VASUDEVAN) JUDICIAL MEMBER SD/ - (JASON P BOAZ) ACCOUNTANT MEMBER BANGALORE, DT. 27 .06.2018. *REDDY GP COPY TO : 1 APPELLANT 4 CIT(A) 2 RESPONDENT 5 DR. ITAT, BANGALORE 3 CIT 6 GUARD FILE SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL BANGALORE.