Radha Karunakaran, Mangalore V. ACIT, Mangalore

ITA 124/BANG/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 1537 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 08-02-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 02-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S PARTHASARTHI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH A BEFORE DR. O.K NARAYANAN, VICE PRESIDENT AND SMT. P MADHAVI DEVI, JUDICIAL MEMBER ITA NOS.12 3 & 124/BANG/2010 (ASST. YEAR 2001-02 & 2005-06) SHRI RADHA KARUNAKARAN, KKARUNALALYAM, CHILLIMBI HILLS, BIJAI, MANGALORE-560 004. . APPELLANT VS. THE ASST. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE, MANGALORE. . RESPONDENT APPELLANT BY : SHRI S PARTHASARTHI, ADVOCATE RESPONDENT BY : SMT. JACINTA VASHAI ZIMIK, ADDL. COMMISSIONER OF INCOME-TAX O R D E R PER DR. O.K NARAYANAN, VICE PRESIDENT THESE TWO APPEALS ARE FILED BY THE ASSESSEE. THE RE LEVANT ASSESSMENT YEARS ARE 2001-02 AND 2005-06. ONE IS P ROTECTIVE ASSESSMENT APPEAL AND THE OTHER IS SUBSTANTIVE ASSE SSMENT APPEAL. ITA NOS.123 & 124/B/10 2 2. AFTER HEARING BOTH SIDES AND EXAMINING THE FACTS OF THE CASE, WE FIND THAT THE DOCUMENTATION OF TRANSFER WAS EXECUTE D IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2005-06 AND AS PER THE AGREEMENT, THE PROPERTY PASSES ONLY ON EXECUTION OF CONVEYANCE AND AS SUCH, THE ASSESSMENT FOR THE ASSESSMENT YEAR 200 5-06 NEEDS TO BE TREATED AS SUBSTANTIVE ASSESSMENT. WE ORDER ACCORD INGLY. ONCE THE SUBSTANTIVE ASSESSMENT YEAR IS THE ASSESSMENT YEAR 2005-06, THE NEXT QUESTION IS WHETHER THE CONSIDERATION SHOULD BE TRE ATED AT RS.35 LAKHS AS DECLARED BY THE ASSESSEE OR RS.30 LAKHS AS DETE RMINED BY THE ASSESSING AUTHORITY. THE ASSESSING OFFICER HAS TRE ATED THE BALANCE AMOUNT OF RS.5 LAKHS IN THE NATURE OF COMPENSATION RECEIVED FOR THE LATE PAYMENT BY THE BUYER OF THE BOMBAY FLAT AND, T HEREFORE, ASSESSABLE UNDER THE HEAD INCOME FROM OTHER SOURCE S. IT IS TO BE SEEN THAT TRANSFER OF THE PROPERTY WAS MADE ONLY IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2005-06 AND IN SUCH CIRCUMSTANCES, THE AMOUNT OF RS.5 LAKHS RECEIVED DURING THE SAME P ERIOD ALONG WITH THE TRANSFER OF PROPERTY CANNOT BE TREATED AS DIFFE RENT FROM THE SALE CONSIDERATION. THEREFORE, WE HOLD THAT THE TOTAL S UM OF RS.35 LAKHS NEEDS TO BE TREATED AS THE SALE CONSIDERATION IN RE SPECT OF THE FLAT AT BOMBAY SOLD BY THE ASSESSEE. ITA NOS.123 & 124/B/10 3 3. AS WE HAVE ALREADY TREATED THE ASSESSMENT COMPLE TED FOR 2005- 06 IN ITA NO.124/BANG/2010 AS SUBSTANTIVE, WE FIND THAT THE ASSESSMENT MADE FOR THE ASSESSMENT YEAR 2001-02 ON PROTECTIVE BASIS BECOMES INFRUCTUOUS. 4. IN RESULT, THE APPEAL FILED BY THE ASSESSEE IN I TA NO.124/B/2010 FOR THE ASSESSMENT YEAR 2005-06 IS ALLOWED AND THE APPEAL FILED IN ITA NO.123/BANG/2010 FOR THE ASSESSMENT YEAR 2001-02 IS REJECTED AS INFRUCTUOUS. ORDER PRONOUNCED ON THURSDAY THE 10TH DAY OF FEBRUARY, 2011, AT BANGALORE. SD/- SD/- (P MADHAVI DEVI) (DR. O.K NARAYANAN) JUDICIAL MEMBER VICE PRESIDENT VMS. COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3.THE CIT CONCERNED. 4.THE CIT(A) CONCERNED. 5.DR 6.GF BY ORDER ASST. REGISTRAR, I TAT, BANGALORE.