Philomena Victoria Rodrigues, Mapusa V. Income Tax Officer, Ward - 2(3), Panaji

ITA 172/PAN/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 0680 (ITAT-PANAJI)
• Duration Of Justice: 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: WT(D)
• Next Hearing Date: 04-06-2024
• Assessment Year: 2014-2015
• Appeal Filed On: 09-10-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Capital expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH : PANAJI [THROUGH VIRTUAL HEARING AT ITAT : PUNE] BEFORE SHRI RAMA KANTA PANDA, VICE PRESIDENT AND SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER ITA.No.172/PAN./2023 Assessment Year 2014-2015 Smt. Philomena Victoria Rodrigues, H.No.621A, Cuttawado, Ucassim Mapusa, GOA – 403 507. PAN AUEPR9064M vs. The Income Tax Officer, Ward-2(3), Aayakar Bhavan, Panaji, GOA – 403 001. (Appellant) (Respondent) For Assessee : Shri S.J. Kamat For Revenue : Shri Sridhar Dora, Sr. DR Date of Hearing : 05.06.2024 Date of Pronouncement : 29.07.2024 ORDER PER SATBEER SINGH GODARA, J.M. : This assessee’s appeal for assessment year 2014-15, arises against the National Faceless Appeal Centre [in short the “NFAC”) Delhi’s Din and Order No.ITBA/NFAC/S/250/ 2023-24/1055205191(1), dated 17.08.2023, in proceedings u/s.143(3) r.w.s.147 of the Income Tax Act, 1961 (in short ‘the Act”). Heard both the parties. Case file perused. 2. The assessee pleads the following substantive grounds in the instant appeal : 2 ITA No.172/PAN./2023 1. “The Learned Commissioner of Income Tax (Appeals) has erred in dismissing the ground praying for the deletion of disallowance of brokerage expenses Rs.4,70,000/- for transfer of the capital asset in spite of the fact that the entire brokerage was paid by Crossed Account payee cheques and primary evidence like the bank statements and brokerage receipts were submitted to the AO. 2. The Learned Commissioner of Income Tax (Appeals) has erred in dismissing the ground praying for the allowance of cost of acquisition at Rs.55/- per square meter as supported by the Registered Valuer's Report in place of Rs.20/- on the basis of inquiry made at the back of the appellant without referring the matter to the DVO as required by law, on a contention that is illogical. 3. The Learned Commissioner of Income Tax (Appeals) has erred in dismissing the grounds praying for the allowance of cost of improvement as supported by the Registered Valuer's Report without referring the matter to the DVO as required by law, on a contention that is illogical. 4. The Learned Commissioner of Income Tax (Appeals) has erred in dismissing the ground praying for the allowance of the capital expenditure incurred by way of cost of the new residential house purchased u/s.54 without a speaking order. 3 ITA No.172/PAN./2023 5. The Learned Commissioner of Income Tax (Appeals) has erred in dismissing the ground praying for bringing to tax only 50% of capital gains in the hands of the appellant instead of 100%, on fallacious contentions, in spite of the fact that the appellant was the owner of only 50% undivided share in the capital asset transferred.” 3. Learned counsel submits at the outset that the assessee’s fifth substantive ground goes to root of the matter since she challenges both the learned lower authorities action assessing her @ 100% of the capital gains arising from sale/transfer of the relevant capital asset herein. We thus take-up this preliminary issue for the sake of convenience and brevity. 4. A perusal of the case file reveals that the assessee an individual is governed by the Portuguese Civil Code, 1962 u/sec.5A of the Act. Her spouse namely Mr. Cipriano Macedo Rodrigues admittedly left for his heavenly abode on 04.12.2012. There could be hardly any dispute that going by sec.5A of the Act; any income is apportioned @ 50% each in case of a couple governed by the Portuguese Civil Code. The assessee’s case therefore, duly admits her share in the relevant capital asset to the extent of 50%. It is the balance 50% share therein which forms subject matter of the sole 4 ITA No.172/PAN./2023 issue between the parties before us wherein the department seeks to assess her for the same as well. 5. Learned DR vehemently supported both the learned lower authorities action that the assessee had in fact transferred her 100% share in the capital asset making her liable for assessment for the entire sale consideration. The assessee has placed on record the sale deed dated 11.07.2013 wherein she is not the sole vendor since accompanied by other legal heirs i.e., Mr. Franco Hercules Rodrigues and Mrs. Steffi Margaret Rodrigues [page-10 of the paper book] who are children borne from Mr. Cipriano Maximiano Rodrigue’s loins and her womb. This clinching fact has gone un-rebutted from the Revenue side. Nor the learned lower authorities have considered the same in their respective findings. It emerges in this factual backdrop that Article 1969 of the Portuguese Civil Code prescribing the “Order of Statutory Succession” settles the issue that the estate first devolves to the “descendents” followed by ascendants........... A surviving spouse of the deceased comes at no.4 only. We thus conclude in light of this “Article” as well as the information gathered from the sale deed hereinabove that the assessee is liable to be assessed only qua half share of the capital gain arising from sale/transfer of the capital asset herein in the relevant previous year. Her instant fifth substantive ground succeeds in very terms. Necessary computation shall follow as per law. Ordered accordingly. 5 ITA No.172/PAN./2023 The assessee’s remaining grounds stand rendered academic. 6. This assessee’s appeal is allowed in above terms. Order pronounced in the open Court on 29.07.2024. Sd/- Sd/- [RAMA KANTA PANDA] [SATBEER SINGH GODARA] VICE PRESIDENT JUDICIAL MEMBER Pune, Dated 29 th July, 2024 VBP/- Copy to 1. The applicant 2. The respondent 3. The Pr. CIT, Panaji concerned 4. D.R. ITAT, Panaji-Bench, Panaji. 5. Guard File. //By Order// //True Copy // Sr. Private Secretary, ITAT, Pune Benches, Pune.