Smt Vasanti Hegde , Bangalore V. Income TAx Officer Ward-2(1), Bangalore

ITA 1903/BANG/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3846 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 22-09-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRIYADHARSHI MISRA
• Assessee Lawyers: H GURUSWAMY ITP
• Keywords: Set aside; Capital Gains
• Section: 201; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH B BEFORE SHRI N.V VASUDEVAN, VICE - PRESIDENT AND SHRI B.R.BASKARAN, ACCOUNTANT MEMBER ITA NO. 1 9 03 /BANG/201 7 (ASS ESSMENT YEAR : 2008 - 09 ) SMT VASANT H I HEGDE W/O LATE GOVARDHAN HEGDE, NO.12, BASAPPA RO AD, SHANTINAGAR, BANGALORE - 560 027 PAN NO. AA OPH5375D APPELLANT VS THE INCOME TAX OFFICER , WARD - 2(1), BANGALORE RESPONDENT A PPELLANT BY : S HRI H. GURUSWAMY, ITP REVENUE BY : SHRI PRIYADHARSHI MISRA, J CIT DATE OF HEARING : 1 9 - 0 2 - 20 20 DATE OF PRONOUNCEMENT : 28 - 0 2 - 20 20 O R D E R PE R SHRI B.R.BASKARAN, AM : THIS APPEAL FILED BY THE ASS ESSEE IS DIRECTED AGAINST THE ORDER DATED 2 3 - 06 - 201 7 OF CIT (A) - 7, BENGALURU AND I T RELAT ES TO ASSESSMENT YEAR 20 08 - 09 2. AT T HE TIME OF HEARING THE LEARNED AR SUBMITTED THAT THE ASSESSEE IS PRESSING O NLY GROUND NO.2 AND ACCORDINGLY SUBMITTED THAT OTHER GROUNDS ARE NOT PRESSED. THE LEARNED AR ALSO MADE NECESSARY ENDORSEMENT IN THE G R OUNDS OF APPEAL. IT A NO. 1 9 0 3 /B ANG / 20 1 7 2 3. THE GROUND NO.2 READS AS UNDER: THE LEARNED A O HAS ERRED IN HOLDING THAT THE CAPITAL GAINS ARE C HARGEABLE TO TAX FOR THE AY: 2007 - 08 WI T HOUT APPRECIATING THE FACT THAT THE AY: 2007 - 08 WAS NOT A SUBJECT MATTER OF APPEAL OR ASSESSMENT. 4. THE LD. AR SUBMITTED THAT THE ASSESSEE HAD ENTERED INTO AN AGREEMENT FOR SELLING A PROPERTY WHICH WAS AN INDUSTR IAL VACANT SITE LOCATED AT 8 TH M AIN R OAD, W ARD NO.11, BANGALORE. THE AGREEMENT WAS ENTERED ON 16 - 06 - 2005 . THEREAFTER, A GENERAL POWER OF ATTORNEY WAS EXECUTED ON 17 - 10 - 2006. FINALLY, THE ASSESSE E SOLD THE PROPERTY ON 03 - 03 - 200 8 BY EXECUTING A CONVEYANCE DEED. T HE AO RE - OPENED THE ASSESSMENT F OR ASSESSMENT YEAR 2008 - 09 BY ISSUING NOT ICE U/S 148 OF THE IT ACT, 1961 AND ASSESSED THE LONG TERM CA PI T AL GAI NS IN ASSESSMENT YEAR 2008 - 09. 4. THE A SSESSEE CHALLENGED THE ASSESSMENT ORDER BY FILING AN APPEAL BEFO RE THE LD.CIT(A) WHO CONCURRED WITH THE CONTENTION OF THE ASSES S EE THAT THE LONG TERM CAPITAL GAINS IS NOT ASSESSABLE IN ASSESSMENT YEAR 2008 - 09. THE LD.AR SUBMITTED THAT THE LD.CIT(A) AFTER HAVING HELD SO GAVE DIRECTION TO THE AO TO ASSESS THE CAPITAL GAI NS IN ASSESSMENT YEAR 2007 - 08. THE LD. AR SUBMITTED THAT THE DIRECTION SO GIVEN BY THE LD.CIT(A) IS BEYOND HIS POWERS AS HE HAS TO CON FINE HIMSELF TO FILE AN APPEAL BEFORE HIM BEING ASSESSMENT YEAR 2008 - 09. ACCO R DIN G LY, THE LD.AR PRAYED THAT THE DIRECT ION SO GIVEN BY LD.CIT(A) MAY BE SET ASIDE. 5. WE HAVE HEARD LD. DR AND PERUSED THE RECORDS. 6. THE RELEVANT OBSERVATION MADE BY CIT(A) RE LATING TO THE CONTENTIONS OF THE ASSESSEE READ AS UNDER ; 6. IN VIEW OF THE ABOVE I AM OF THE CONSIDERED VIEW THA T THE APPELLANT IS LIABLE TO BE TAXED IN THE AY: 2007 - 08 AND THEREFORE, THE LIABILITY OF CAPITAL GAINS IMPOSED FOR AY: IT A NO. 1 9 0 3 /B ANG / 20 1 7 3 2008 - 09 IS DIRECTED TO BE DELETED. THE SHARE OF APPELLANT IN THE PROPERTY AND THE DETERMINATION OF GUIDANCE VALUE FOR AY: 2008 - 09 IS INC ONSEQUENTIAL FOR THE INSTANT YEAR, THUS THE SAME IS NOT ADJUDICATED AND ARE TREATED AS DISMISSED FOR STATISTICAL PURPOSES. 7. A PERUSAL OF THE AFORESAID OBSERVATION OF THE LD.CIT(A) WOULD SHOW THAT THE LD.CIT(A) HAS NOT GIVEN ANY DIRECTION AS CONTENDE D BY THE LD.AR. IN OUR VIEW, THE LD.CIT(A) UPON CONSIDERATION OF THE FACTS HAS TAKEN THE VIEW THAT THE ASSESSEE IS LIABLE TO BE TAXED IN ASSESSMENT YEAR 2007 - 08 IN RESPECT OF CAPITAL GAINS ARISING ON TRANSFER OF THE IMPUGNED LAND. THE VIEW SO EXPRESSE E, IN OUR OPINION, CANNOT BE CONSIDERED AS DIRECTION GIVEN BY LD.CIT(A). HE NCE, WE DO NOT FIND ANY MERIT I N THE CONTENTION OF THE LD.AR. ACCORDINGLY, WE REJECT THE APPEAL FILED BY THE ASSESSEE. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 - 02 - 2020. SD/ - S D/ - (N.V VASUDEVAN) (B.R.BASKARAN) VICE - PRESIDENT ACCOUNTANT MEMBER PLACE: BANGALORE DATED : 28 - 02 - 2020. *AM COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT CONCERNED. 4. THE CIT (A) CONCERNED. 5. DR 6. GF BY ORDER ASST. REGIST RAR