Sudip Kumar Ghosh , Kolkata V. DCIT, Circle - 11, Kolkata , Kolkata

ITA 1563/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1428 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-03-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 20-07-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: C J SINGH
• Assessee Lawyers: SANJAY BHATTACHARJEE
• Keywords: Cost of acquisition; Revised return
• Section: 143(3); 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH : KOLKATA [BEFORE HONBLE SHRI S.S. GODARA, JM] I.T.A NO. 1563/KOL/20 18 ASSESSMENT YEAR : 2008-0 9 SUDIP KUMAR GHOSH VS- DCIT, CIRCLE-11, KOLKA TA [PAN: ACWPG 0160 F] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI SANJAY BHATTACHARJEE, FCA FOR THE RESPONDENT : SHRI C.J. SINGH, JC IT, SR. DR DATE OF HEARING : 04.03.2019 DATE OF PRONOUNCEMENT : 22.03.2019 ORDER 1. THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2008- 09 IS DIRECTED AGAINST THE CIT(A)- 11, KOLKATAS ORDER DATED 11.04.2018 PASSED IN CA SE NO. 652/CIT(A)-11/C-11/14- 15/KOL INVOLVING PROCEEDINGS U/S 143(3) OF THE INC OME TAX ACT, 1961 ( IN SHORT THE ACT). HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEES ONLY GRIEVANCE CANVASSED BEFORE M E DURING THE COURSE OF HEARING IS THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN LAW A ND IN FACTS IN ADDING LONG TERM CAPITAL GAINS AMOUNTING TO RS. 7,09,000/- ON SALE OF LAND A ND FLAT DURING THE COURSE OF ASSESSMENT AS CONFIRMED IN LOWER APPELLATE PROCEEDI NGS. THE CIT(A)S DETAILED DISCUSSION TO THIS EFFECT READ AS UNDER: I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORDER, THE GROUNDS OF APPEAL, STATEMENT OF FACTS, SUBMISSIONS MADE DURING THE APPELLATE PROCEE DINGS AND THE ARGUMENTS OF THE LD. AR. THE FACTS OF THE CASE ARE THAT DURING THE ASSES SMENT PROCEEDINGS THE A.O. NOTES THAT THE APPELLANT HAD NOT SHOWN LONG TERM CAPITAL GAINS IN HIS RETURN OF INCOME AND HAD ALSO NOT CLAIMED ANY EXEMPTION. THIS WAS SO BECAUSE THE APPELLANT HAD MADE AN 2 ITA NO.1563/KOL/2018 SUDIP KUMAR GHOSH A.YR. 2008-09 2 INVESTMENT IN PURCHASE OF A NEW FLAT AFTER SELLING HIS OLD FLAT AND THE INVESTMENT IN PURCHASE OF NEW FLAT IS HIGHER THAN THE CAPITAL GAI NS ON SALE OF OLD LAND AND FLAT. AS A RESULT, NO CLAIM OF DEDUCTION U/S 54 WAS MADE BY TH E APPELLANT IN HIS RETURN OF INCOME. WHILE EXAMINING THIS ISSUE, THE A.O HAS STATED IN H IS ASSESSMENT ORDER AS UNDER: ON EXAMINATION OF THE DETAILS FURNISHED BY THE AR IT IS FOUND THAT DURING THE YEAR THE ASSESSEE HAS LONG TERM CAPITAL GAINS OF RS .2,40,000/- ON SALE OF LAND AND RS.4,69,000/- ON SALE OF FLAT. THESE CAPITAL GAINS HAVE NOT BEEN SHOWN IN THE RETURN. ON BEING ASKED REGARDING THIS NON-DISCLOSURE, THE AR S UBMITTED THAT DURING THE YEAR THE ASSESSEE PURCHASED A NEW FLAT AT THE COST OF RS.39, 00,000/- INCLUDING REGISTRATION AND OTHER EXPENSES. AS THE NEW FLAT PURCHASED IS A RESI DENTIAL PROPERTY, THE ASSESSEE HAS NOT SHOWN LONG TERM CAPITAL GAINS AS ITS INCOME AS THE SAME WOULD BE EXEMPT FROM TAX. THE SUBMISSION OF THE A/R IS FOUND NOT ACCEPTABLE. THE RETURN OF INCOME CONTAINS SPECIFIC COLUMN FOR CAPITAL GAINS AND ALSO IN ITS SCHEDULE, THE ASSESSEE IS REQUIRED TO GIVE COMPLETE DETAILS IN RESPECT OF COST OF ACQUISITION, FULL VALUE OF CONSIDERATION ON SALE, CAPITAL GAINS THEREOF AND THE AMOUNT OF CAPITAL GAI NS CLAIMED AS EXEMPT U/S. 54/54B/54 D/54 EC/54 F. ON PERUSAL OF THE RETURN NO SUCH DETA ILS ARE FOUND TO HAVE BEEN GIVEN BY THE ASSESSEE. INJRDS, THE ASSESSEE HAS NOT MADE ANY CLAIM FOR EXEMPTION IN THE RETURN OF INCOME. AND MOREOVER HE HAS NOT DISCLOSED IN THE RE TURN THAT THERE WAS ANY CAPITAL GAINS DURING THE YEAR. IN THE EVENT OF SUCH FACTS A ND CIRCUMSTANCES OF THE CASE, THE ASSESSEE'S CLAIM REJECTED AND THE LONG TERM CAPITAL GAINS AGGREGATING TO RS.7,09,000/- IS CHARGED TO TAX. PENALTY PROCEEDINGS U/S. 271(1 ) ( C) READ WITH EXPLANATION 1 TO THE SECTION ARE SEPARATELY INITIATED FOR HAVING FURNISH ED INACCURATE PARTICULARS OF INCOME.' 3. MR. BHATTACHARJEES ONLY CONTENTION RAISED DURIN G THE COURSE OF HEARING IS THAT THE ASSESSING OFFICER AND CIT(A) OUGHT TO HAVE EXAMINED THE ASSESSEES DEDUCTION CLAIM U/S 54 OF THE ACT FOR HAVING MADE RS. 39 LACS INVES TMENT IN A NEW RESIDENTIAL HOUSE. THE REVENUES CASE IS THAT THE ASSESSEE NEVER FILED A R EVISED RETURN RAISING THE SAID DEDUCTION CLAIM BEFORE THE ASSESSING OFFICER. MR. SINGH QUOTE S HONBLE APEX COURT DECISION GOETZ (INDIA) LTD. VS. CIT 283 ITR 323 (SC). I FI ND NO MERIT IN REVENUES INSTANT ARGUMENT. THEIR LORDSHIPS HAVE MADE IT CLEAR THAT T HE SAID JUDICIAL PRECEDENT DOES NOT IMPINGE UPON THE APPELLATE AUTHORITIES JURISDICTION OF ENTERTAINING A NEW PLEA IN ABSENCE OF A REVISED RETURN. CASE RECORDS PRIMA FACIE SUGGE ST THAT THERE IS NO DISPUTE AS SUCH THE ASSESSEE HAVING ALREADY INVESTED MUCH MORE AMOUNT T HAN THE LONG TERM CAPITAL GAINS (SUPRA) IN ISSUE. I THEREFORE ACCEPT THE ASSESSEES ABOVE SUBMISSION IN PRINCIPLE AND RESTORE THE ISSUE BACK TO THE ASSESSING OFFICER FO R NECESSARY FACTUAL VERIFICATION. 3 ITA NO.1563/KOL/2018 SUDIP KUMAR GHOSH A.YR. 2008-09 3 4. NO OTHER GROUND HAS BEEN PRESSED BEFORE ME DURIN G THE COURSE OF HEARING. 5. THIS ASSESSEES APPEAL IS PARTLY ALLOWED FOR STA TISTICAL PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN THE COURT ON 22.03.2019 SD/- [ S.S.GODARA ] JUDICIAL MEMBER DATED : 22.03.2019 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. SUDIP KUMAR GHOSH, 41, RUPNARAYAN NANDAN LANE, K OLKATA-700025. 2. DCIT, CIRCLE-11, KOLKATA 3..C.I.T(A).- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REG ISTRAR ITAT, KOLKATA BE NCHES