Sayyad Majeed Sayyad Mehboob, Aurangabad V. Income-tax Officer,

ITA 2025/PUN/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0287 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-12-2018
• Assessment Year: 2010-2011
• Appeal Filed On: 07-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: IS DIRECTED AGAINS T PASSED
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT . / ITA NO.2025/PUN/2016 / ASSESSMENT YEAR : 2010-11 SAYYAD MAJED SAYYAD MEHBOOB, H.NO.4-11-44, MAQSOOD COLONY, ROSHAN GATE, AURANGABAD PAN : ATRPS3754D VS. ITO, WARD-2(3), AURANGABAD (APPELLANT) (RESPONDENT) / ORDER PER R.S.SYAL, VP : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A)-2, AURANGABAD ON 05-02-2016 IN RELATION TO THE ASSESSMENT YEAR 2010-11. 2. THE ONLY ISSUE RAISED IN THIS APPEAL IS AGAINST THE COMPUTATION OF CAPITAL GAINS FROM THE TRANSFER OF PROPERTY. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSE E FILED RETURN DECLARING CAPITAL GAIN OF RS.11,82,000/- ON SA LE OF PROPERTY, FOR WHICH EXEMPTION WAS CLAIMED U/S. 54 OF THE ACT. APPELLANT BY SHRI M.K. KULKARNI RESPONDENT BY SHRI RAJESH GAWALI DATE OF HEARING 06-12-2018 DATE OF PRONOUNCEMENT 07-12-2018 ITA NO.2025/PUN/2016 SAYYAD MAJED SAYYAD MEHBOOB 2 THE SHARE OF THE ASSESSEE IN THE AFORESAID HOUSE PROPER TY WAS 60%. THE ASSESSEE, ALONG WITH HIS BROTHERS, PURCHASED A NEW PROPERTY ON 28-01-2010 FOR A SUM OF RS.45,96,000/-. THE SHARE OF THE ASSESSEE IN THE AFORESAID PROPERTY WAS 23% AT RS.10,50,000/-. ON VERIFICATION OF THE PURCHASE DEED, THE ASSESSING OFFICER (AO) FOUND THAT THE AFORESAID PROPERTY COMPRISED OF RESIDENTIAL AREA, PLOT AND COVERED AREA. HE PROPORTIONATELY REDUCED THE AMOUNT OF EXEMPTION U/S. 54. IN THE FIRST APPEAL, THE ASSESSEE CONTENDED THAT THERE WAS A WR ONG CALCULATION OF CAPITAL GAIN IN AS MUCH AS DEVELOPMENT EXPENSES INCURRED WERE NOT CONSIDERED PROPERLY. THE LD . CIT(A) REJECTED THE ASSESSEES CONTENTION AND UPHELD THE ACTION OF THE AO, BY GIVING MARGINAL RELIEF. THE ASSESSEE IS AGGRIEVED AGAINST THE CONFIRMATION OF ADDITION. 4. HAVING HEARD BOTH THE SIDES AND PERUSED THE RELEVANT MATERIAL ON RECORD, IT IS SEEN THAT THE ASSESSEE CHALLENGED THE COMPUTATION OF CAPITAL GAIN BEFORE THE AUTHORITIES BY CONTENDING THAT HE INCURRED EXPENSES ON DEVELOPMENT, WHIC H WERE NOT PROPERLY CONSIDERED AND FURTHER THE ASSESSEES SHARE IN THE PROPERTY WAS ALSO NOT CORRECTLY TAKEN INTO ACCOUNT. T HE ITA NO.2025/PUN/2016 SAYYAD MAJED SAYYAD MEHBOOB 3 LD. AR SUBMITTED THAT THE ASSESSEE HAS A CREDIBLE AND POSITIVE EVIDENCE TO PROVE THE INCURRING OF DEVELOPMENT EXPENSES IN RESPECT OF THE PROPERTY SOLD. SINCE SUCH DETAILS HAVE NOT BE EN TAKEN INTO CONSIDERATION BY THE AUTHORITIES BELOW, I AM OF THE CONSIDERED OPINION THAT THE ENDS OF JUSTICE WOULD MEET ADEQUATELY IF THE IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF AO. I ORDER ACCORDINGLY AND DIRECT THE AO TO RE-COMPUTE THE AMOUNT OF CAPITAL GAIN AS PER LAW AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. IN SUCH FRESH PROCEEDINGS, THE ASSESSEE WILL BE AT LIBERTY TO LEA D ANY FRESH EVIDENCE AS HE CONSIDERS EXPEDIENT FOR HIS CAS E. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07 TH DECEMBER, 2018. SD/- (R.S.SYAL) / VICE PRESIDENT PUNE; DATED : 07 TH DECEMBER , 2018 ITA NO.2025/PUN/2016 SAYYAD MAJED SAYYAD MEHBOOB 4 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (APPEALS)-2, AURANGABAD 4. / THE PR. CIT-2, AURANGABAD 5. , , SMC / DR SMC, ITAT, PUNE; 6. / GUARD FILE. // TRUE COPY // / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE ITA NO.2025/PUN/2016 SAYYAD MAJED SAYYAD MEHBOOB 5 DATE 1. DRAFT DICTATED ON 06-12-18 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 06-12-18 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *