Abhimanyu Patra, Bhubaneswar V. ITO, Bhubaneswar

ITA 161/CTK/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4372 (ITAT-CUTTACK)
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 16-06-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 28-03-2011
• Court: TRIBUNAL
• Department Lawyers: PARAMITA TRIPATHY
• Assessee Lawyers: D K SETHAR

Judgement Text

IN THE INCME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER, AND HONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER. ITA NO S . 161 AND 162/CTK/2011 (ASSESSMENT YEAR S 2001 - 02 AND 2002 - 03) ABHIMANYU PATR A, 250, BOMIKHAL, CUTTACK ROAD, BHUBANESWAR 751 010. PAN: AGDPP 3273 E) VERSUS INCOME - TAX OFFICER, WARD 2(2), BHUBANESWAR. (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI D.K.SETH,AR FOR THE RESPONDENT SMT. PARAMITA TRIPATHY, DR ORDER SHRI K.S.S.PRA SAD RAO, JUDICIAL MEMBER : THESE TWO APPEALS ARE FILED BY THE ASSESSEE HAVING BEEN AGGRIEVED BY THE RESPECTIVE ORDERS OF THE LEARNED CIT(A) FOR THE ASSESSMENT YEARS 2001 - 02 AND 2002 - 03 IN THE CASE OF THE ASSESSEE. 2. AT THE TIME OF HEARING, THE LEARNED CO UNSEL FOR THE ASSESSEE DID NOT PRESS THE APPEAL FOR THE ASSESSMENT YEAR 2002 - 03, WHICH HE NOTED ON THE BODY OF GROUNDS OF APPEAL ATTACHED TO THE MEMORANDUM OF APPEAL. THEREFORE, ITA NO.162/CTK/2011 IS DISMISSED AS NOT PRESSED. 3. IN ITA NO.161/CTK/2011 FOR THE ASSESSMENT YEAR 2001 - 02, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. 1. FOR THAT THE WHOLE ASSESSMENT PROCEEDINGS IS UNLAWFUL AND ILLEGAL INASMUCH AS THE STATUS OF THE APPELLANT SHOULD HAVE BEEN H.U.F. AND NOT INDIVIDUAL 2. FOR THAT THE ASSESSMENT OF INCOME UNDER HEA D CAPITAL GAINS AS MADE BY THE L EARNED ASSESSING OFFICER AND AS SUSTAINED BY THE LEARNED COMMISSIONER IS ARBITRARY AND HIGHLY UNJUSTIFIED 3. FOR THAT THE CAPITAL GAINS AS COMPUTED RELATED TO ASST. YEAR 2000 - 01 AND NOT THE YE AR UNDER APPEAL. 4. FOR THAT THE BASIS OF COMPUTATION OF INCOME IS IMPROPER AND INCORRECT. 5. FOR THAT THE LEARNED A.O. AND THE LEARNED COMMISSIONER FAILED TO APPRECIATE THE SUBMISSIONS FURNISHED BEFORE THEM. ITA NOS. 161 AND 162/CTK/2011 2 4. AT THE TIME OF HEARING, THE LEARNED COUNSE L FOR THE ASSESSEE DID NOT PRESS GROUND NO.1 DISPUTING THE STATUS OF THE ASSESSEE THEREIN. THEREFORE, GROUND NO.1 IS DISMISSED AS NOT PRESSED. 5. REST OF THE GROUNDS RELATE TO ONLY ONE ISSUE DISPUTING THE COMPUTATION OF CAPITAL GAIN IN THE ASSESSMENT YEAR 2001 - 02 I.E., THE ASSESSMENT YEAR UNDER CONSIDERATION. 6. THE LEARNED COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED ON THE ABOVE ISSUE CONTENDING THAT THE CAPITAL GAINS IN QUESTION IS RELATED TO THE ASSESSMENT YEAR 2000 - 01 AND NOT TO THE YEAR UNDER APPEAL I.E ., 2001 - 02. IN SUPPORT OF THIS ARGUMENT, HE RELIED ON THE AGREEMENT DT.12.1.2000 ENTER ED BETWEEN THE ASSESSEE AND M/S. LAXMI BUILDERS & DEVELOPERS (P) LTD., WHICH WAS ALSO TAKEN INTO CONSIDERATION BY THE DEPARTMENT FOR CALCULATING THE CAPITAL GAINS IN THE H ANDS OF THE ASSESSEE. A COPY OF THE SAID AGREEMENT IS MADE AVAILABLE TO THE TRIBUNAL. IN THE AGREEMENT AT PAGE 1 PARAGRAPH 3 IT IS STATED WHEREAS THE FIRST PART Y (ASSESSEE) ENTERED INTO AN AGREEMENT WITH THE SECOND PART Y (DEVELOPER) ON 27.4.1998 PERTAININ G TO ALLOCATION OF THE 1ST PARTYS SHARE IN THE PROJECT BASANT VILLA APARTMENT, BOMIKLHAL, BHUBANESWAR AND ACCORDANCE TO THE SAID AGREEMENT THE 1ST PARTY HAS BEEN ALLOCATED AS DETAILED THEREIN . THIS CLAUSE CLEARLY STATES THAT THE FLATS OF ASSESSEE S PORTION WERE ALLOCATED TO THE ASSESSEE ON 12.1.2000. SO, THE CAPITAL GAINS, IF ANY, WHICH NECESSARILY FALL WITHIN ASSESSMENT YEAR 2000 - 01, IS NOT AT ALL TAXABLE IN THE HANDS OF THE ASSESSEE IN THE ASSESSMENT YEAR 2001 - 02. THEREFORE, THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT THE ADDITION ON ACCOUNT OF CAPITAL GAINS IN THE ASSESSMENT YEAR 2001 - 02 IS NOT SUSTAINABLE FOR LEGAL SCRUTINY. ACCORDINGLY, HE SOUGHT FOR SETTING ASIDE THE ASSESSMENT MADE BY THE AUTHORITIES BELOW IN THIS REGARD. ITA NOS. 161 AND 162/CTK/2011 3 7. CONTRARY TO THIS, THE LEARNED DR HAS VEHEMENTLY ARGUED SUPPORTING THE ORDERS OF THE DEPARTMENTAL AUTHORITIES. 8. ON CAREFUL ANALYSIS OF THE ORDERS PASSED BY THE DEPARTMENTAL AUTHORITIES IT IS FOUND THATA BOTH THE DEPARTMENTAL AUTHORITIES ARE RELYING ON THE AGREEM ENT DT.12.1.2000 ENTERED INTO BY THE ASSESSEE WITH THE DEVELOPER IN WHICH HE WAS ALLOCATED THE PORTION OF FLATS ON WHICH THE DEPARTMENT HAS CALCULATED THE CAPITAL GAIN IN THE HANDS OF THE ASSESSEE. AS THE AGREEMENT IS DT.12.1.2000 AND THE ALLOCATION WAS M ADE EON THE SAME DAY, THE CAPITAL GAIN ARISES ON THAT DAY FALLS WITHIN THE ASSESSMENT YEAR 2000 - 01 AND NOT IN THE ASSESSMENT YEAR 2001 - 02 AS MADE BY THE DEPARTMENTAL AUTHORITIES. ON THIS PRIMARY OBJECTION ITSELF, THE ASSESSEE SUCCEEDS AND THE ASSESSMENT M ADE BY THE DEPARTMENTAL AUTHORITIES COMPUTING CAPITAL GAINS IN THE HANDS OF THE ASSESSEE IN THE ASSESSMENT YEAR 2001 - 02 IS PERFECTLY INCORRECT. HENCE, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE IS NOT LIABLE TO PAY TAX ON THE CAPITAL GAINS IN THE ASSE SSMENT YEAR 2001 - 02 AS THE CAPITAL GAIN ARISES DURING THE ASSESSMENT YEAR 2000 - 01 AS PER THE AGREEMENT DT.12.1.2000 ENTERED INTO BETWEEN THE ASSESSEE WITH THE DEVELOPER. ACCORDINGLY, WE SET ASIDE THE ASSESSMENT MADE BY THE DEPARTMENTAL AUTHORITIES AND ALLO W THE GROUNDS RAISED BY THE ASSESSEE IN THIS REGARD AND DELETE THE COMPUTATION OF CAPITAL GAIN IN QUESTION. 9. IN THE RESULT, ITA NO.161/CTK/2011 IS PARTLY ALLOWED AND ITA NO.162/CTK/2011 IS DISMISSED AS NOT PRESSED. PRONOUNCED IN OPEN COURT ON DT. 30 TH JUNE, 2011 S D/ - S D/ - (K.K.GUPTA) ACCOUNTANT MEMBER (K.S.S.PRASAD RAO) JUDICIAL MEMBER DATE: 30 TH JUNE, 2011 H.K.PADHEE, SENIOR PRIVATE SECRETARY. ITA NOS. 161 AND 162/CTK/2011 4 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: ABHIMAN YU PATRA, 250, BOMIKHAL, CUTTACK ROAD, BHUBANESWAR 751 010. 2. THE RESPONDENT: INCOME - TAX OFFICER, WARD 2(2), BHUBANESWAR. 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY.