Shri. Guruprasad R, Bangalore V. ITO-Ward-3(2)(1), Bangalore

ITA 1652/BANG/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8538 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 15-02-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 15-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Cost of acquisition

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC - B BENCH : BANGALORE BEFORE SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.1652/BANG/2016 ASSESSMENT YEAR : 2009-10 SHRI GURUPRASAD R, # 15, LAKSHMINARAYANA NILAYA, BEHIND WHITE FIELD HONDA, DOORVANINAGAR P.O., B. NARAYANPURA, BANGALORE 560 016. PAN: AIJPP 6855D VS. THE INCOME TAX OFFICER, WARD-3(2)(1), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SMT. SHEETAL, ADVOCATE RESPONDENT BY : SHRI A.R.V. SREENIVASAN, JCIT (DR) DATE OF HEARING : 16.02.2017 DATE OF PRONOUNCEMENT : 23.02.2017 O R D E R THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST TH E ORDER OF LD. CIT (APPEALS)-5, BENGALURU DATED 27.06.2014 FOR THE ASS ESSMENT YEAR 2009- 10. 2. ALTHOUGH THE ASSESSEE HAS RAISED AS MANY AS 8 GR OUNDS RUNNING INTO 4 PAGES, BUT THE ONLY GRIEVANCE OF THE ASSESSE E IS REGARDING ADDITION MADE BY THE AO OF RS.4,20,460 AS SHORT TERM CAPITAL GAIN. ITA NO.1652/BANG/2016 PAGE 2 OF 4 3. IT IS SUBMITTED BY THE LD. AR OF ASSESSEE THAT I N RESPECT OF THIS TRANSACTION OF SALE OF PROPERTY IN THE PRESENT YEAR , THE ASSESSEE HAS IN FACT INCURRED LOSS WHICH IS NOT CLAIMED BY THE ASSESSEE IN THE COMPUTATION OF INCOME BUT THE AO HAS ASSESSED SHORT TERM CAPITAL G AIN BY CONSIDERING ONLY THE PURCHASE OF COST OF THE LAND AS COST OF AC QUISITION AND BY DISREGARDING THE CONSTRUCTION COST OF BUILDING AND THEREFORE, THE ADDITION MADE BY THE AO IS NOT JUSTIFIED. 4. SHE SUBMITTED THAT AS PER PARA 3 OF ASSESSMENT O RDER, THE AO HAS STATED THAT ASSESSEE HAD PURCHASED A HOUSE PROPERTY ON 31.3.2006 FOR RS.9,33,540 BEING THE COST INCLUDING STAMP DUTY AND REGISTRATION EXPENSES. SHE SUBMITTED THAT A COPY OF THE SAID PURCHASE DEED DATED 31.3.2006 IS AVAILABLE AT PAGES 1 TO 10 OF PB AND MY ATTENTION W AS DRAWN TO PAGE 3 OF PB AND IT WAS POINTED OUT THAT THIS VALUE OF RS.8.4 8 LAKHS AS PER THIS PURCHASE DEED IS ONLY TOWARDS UNDIVIDED INTEREST IN LAND. SHE ALSO POINTED OUT THAT AS PER THE SAME PARA OF SALE DEED, IT IS S PECIFICALLY STATED THAT THE PURCHASER SHALL GET CONSTRUCTED A FLAT AT HIS OWN C OST. THEREAFTER, SHE SUBMITTED THAT THE COPY OF SALE AGREEMENT IS AVAILA BLE AT PAGES 11 TO 18 OF PB, AS PER WHICH, THE TOTAL VALUE WAS DETERMINED AT RS.20 LAKHS INCLUDING THE VALUE OF LAND AND COST OF CONSTRUCTION. THEREAF TER, SHE SUBMITTED THAT THE ASSESSEE OBTAINED LOAN OF RS.15 LAKHS FROM CITI BANK AS PER RELEVANT DOCUMENTS ON PAGES 19 TO 21 OF PB AND AS PER THE SA ME, THE AMOUNT OF LOAN OF RS.15 LAKHS WAS PAID TO THE SAID VENDORS, S RI S. KUMAR AND SMT. S. MALINI. THEREAFTER, SHE SUBMITTED THAT AS AGAINST THE TOTAL AGREED VALUE AS ITA NO.1652/BANG/2016 PAGE 3 OF 4 PER AGREEMENT OF RS.20 LAKHS, RS.18,45,040 WAS ACTU ALLY PAID AND THEREFORE THERE IS NO CAPITAL GAIN ON THE SALE OF T HIS LAND FOR RS.13,54,000. 5. THE LD. DR OF REVENUE SUPPORTED THE ORDERS OF AU THORITIES BELOW. 6. I HAVE CONSIDERED THE RIVAL SUBMISSIONS. I FIND THAT THE SALE VALUE HAS BEEN TAKEN BY THE AO FOR THE FLAT AT RS.13.54 L AKHS BUT HE HAS CONSIDERED THE COST OF ACQUISITION FOR TRANSFER OF UNDIVIDED SHARE IN LAND ONLY AND HAS DISREGARDED THE COST OF CONSTRUCTION. WHEN THE COST OF CONSTRUCTION IS ALSO CONSIDERED, THERE IS NO CAPITA L GAIN ON SALE OF THIS PROPERTY AND THEREFORE, I DELETE THE ADDITION MADE BY THE AO AND CONFIRMED BY THE LD. CIT(APPEALS). 7. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED . PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF FEBRUARY, 2017. SD/- ( A.K. GARODIA ) ACCOUNTANT MEMBER BANGALORE, DATED, THE 23 RD FEBRUARY, 2017. / D ESAI S MURTHY / MS / ITA NO.1652/BANG/2016 PAGE 4 OF 4 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.