Hemant Mallapur, Bangalore V. ITO, Ward-5(3)(3), Bangalore

ITA 1712/BANG/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9253 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 28-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Cost of acquisition
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-B BENCH : BANGALORE BEFORE SHRI GEORGE GEORGE K, JUDICIAL MEMBER ITA NO.1712/BANG/2016 (ASSESSMENT YEAR: 2008-09) ASSESSEE BY : SHRI. MUKESH KUMAR JAIN J , CA REVENUE BY : SHRI. SARAVANAN B, ADDL. CIT DATE OF HEARING : 29.11.2016 DATE OF PRONOUNCEMENT : 02.12 .2016 ORDER PER GEORGE GEORGE K, JM : THIS APPEAL AT THE INSTANCE OF ASSESSEE IS DIRECTED AGAINST CIT(A)S ORDER DATED 3.6.2016. THE RELEVAN T AY IS 2008-09. MR. HEMANT MALLAPUR, F-1, TEJA VILLA, NO.87/108, 3 RD MAIN, EJIPURA, BANGALORE. PAN : AATPM9374L VS. INCOME TAX OFFICER , ITO WARD 5(3)(3), BANGALORE. APPELLANT RESPONDENT ITA NO.1712/BANG/2016 PAGE 2 OF 5 2. THE GROUNDS RAISED READS AS FOLLOWS: 1. THE LEARNED CIT APPEALS HAS ERRED IN PASSING THE ORDER IN THE MANNER PASSED BY HIM. THE ORDER BEING BAD IN LA W IS LIABLE TO BE QUASHED. 2. THE LEARNED CIT APPEALS HAS ERRED IN PASSING THE ORDER ON THE BASIS OF TRIBUNAL JUDGMENT OF HARSH KRISHNAKANT H BHATT AND MOHANLAL M SHAH WHICH IS NOT RELEVANT TO THE IN STANT CASE OF THE ASSESSEE. 3. THE LEARNED CIT APPEALS DID NOT ADJUDICATE ALL G ROUNDS OF APPEAL. 4. THE LEARNED CIT APPEALS DID NOT ADJUDICATE ON AL TERNATE GROUNDS OF APPEAL. 5. THE LEARNED ASSESSING OFFICER HAS ERRED IN NOT A LLOWING THE REGISTRATION EXPENSES, BROKERAGE AND WOOD WORK EXPE NSES (INCURRED AT THE TIME OF ACQUISITION OF HOUSE PROPE RTY) AS THE COST OF ACQUISITION AND ALSO HAS ERRED IN NOT ALLOW ING THE COST OF IMPROVEMENT OF HOUSE PROPERTY (INCURRED DURING T HE YEAR OF TRANSFER) AS A DEDUCTION. 6. THE LEARNED ASSESSING OFFICER HAS ERRED IN NOT A PPRECIATING THE PROVISION OF LAW. 7. THE LEARNED ASSESSING OFFICER HAS NOT APPRECIATE D THE FACTS OF THE CASE CORRECTLY. 8. IN VIEW OF THE ABOVE AND ON OTHER GROUNDS TO BE ADDUCED AT TIME OF HEARING, IT IS REQUESTED THAT THE IMPUGN ED ORDER BE I. QUASHED. II. THE ADDITIONAL TAX LIABILITY RAISED TO BE DELET ED. III. CONSEQUENTIAL INTEREST TO BE DELETED. IV. PENALTY PROCEEDINGS U/S 271 (1)(C) TO BE DROPPED. ITA NO.1712/BANG/2016 PAGE 3 OF 5 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE AS FOL LOWS: THE ASSESSEE IS AN INDIVIDUAL. FOR THE ASSESSMENT Y EAR 2008-09, THE RETURN OF INCOME WAS FILED DECLARING T OTAL INCOME OF RS.6,43,667/-. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD SOLD HOUSE PROPERTY . THE SALE CONSIDERATION RECEIVED WAS RS.30,00,000/-. THE ASSESSEE HAD CLAIMED THE FOLLOWING DEDUCTION: 4. WHILE COMPUTING THE ASSESSMENT UNDER SECTION 143 (3) OF THE ACT, THE AO HAD ALLOWED DEDUCTION OF ONLY RS.21,17,581/-, CLAIMED BY THE ASSESSEE. THE DIFFE RENCE IS ON ACCOUNT OF THE FOLLOWING: 5. AGGRIEVED BY THE ASSESSMENT ORDER, ASSESSEE PREFERRED AN APPEAL TO THE CIT(A). THE CIT(A) REJE CTED THE ITA NO.1712/BANG/2016 PAGE 4 OF 5 CONTENTION OF THE ASSESSEE AND CONFIRMED THE COMPUT ATION MADE BY THE AO. 6. AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESS EE IS IN APPEAL BEFORE THE TRIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE INCOME TAX AUTHORITIES. THE LEARNED DR STRONGLY SU PPORTED THE ORDER OF THE ASSESSMENT OF THE CIT(A). 7. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL ON RECORD. ON PERUSAL OF THE CIT(A)S ORD ER, I NOTICE THAT THE CIT(A) HAS NOT APPRECIATED THE FACT S CORRECTLY. THE STAMP DUTY, REGISTRATION FEES AND O THER INCIDENTAL EXPENSES HAVE NOT BEEN CONSIDERED AS COS T OF ACQUISITION BY THE AO. THE CIT(A) HAS MERELY CONFI RMED THE COMPUTATION MADE BY THE AO. THE CIT(A)S ORDER HAS NOT ADJUDICATED ALL THE GROUNDS AND HAS NOT DEALT WITH THE FACTS RELEVANT TO THE CASE. THE PRECEDENCE RELIED BY THE ASSESSEE IS NOT BEEN PROPERLY CONSIDERED. THE ORDER OF THE TRIBUNAL RELIED ON BY THE CIT(A) WHILE DISMISSING THE APPEAL OF THE ASSESSEE IS NOT REGARDING THE CAPITAL GAINS COMPUTA TION BUT WITH REGARD TO DISALLOWANCE OF DEDUCTION BY INVOKIN G THE PROVISIONS OF SECTION 14A READ WITH RULE 8D OF THE INCOME TAX RULES. THEREFORE, I AM OF THE VIEW THERE IS NO PROPER APPRECIATION OF FACTS NOR ADJUDICATION OF THE ISSUE . THEREFORE THE MATTERS NEEDS FRESH CONSIDERATION BY THE CIT(A) . ACCORDINGLY, THE APPEAL IS RESTORED TO THE CIT(A). THE CIT(A) SHALL PASS A SPEAKING ORDER AND SHALL CONSID ER ALL THE ISSUES THAT ARE RAISED BY THE ASSESSEE BEFORE HIM. IT IS ORDERED ACCORDINGLY. ITA NO.1712/BANG/2016 PAGE 5 OF 5 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 02.12.2016. SD/- ( GEORGE GEORGE K. ) JUDICIAL MEMBER PLACE : BANGALORE DATED : 02/12/2016 /NS/ COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A)-II BANGALORE 4. CIT 5. DR, ITAT, BANGALORE 6. GUARD FILE BY ORDER ASSISTANT RE GISTRAR INCOME-TAX APPELLATE TRIBUNAL BANGALORE