Shri.T.Prasanna Gowda, Bangalore V. Deputy Commissioner of Income Tax, Bangalore

ITA 2225/BANG/2016

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 5940 (ITAT-BANGALORE)
• Duration Of Justice: 4 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Bangalore
• Next Hearing Date: 28-01-2021
• Assessment Year: 2009-2010
• Appeal Filed On: 16-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R PREMI JT C IT BENGALURU
• Assessee Lawyers: ASHOK KULKARNI
• Keywords: Capital asset; Documents seized
• Section: 153C; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI , JUDICIAL MEMBER IT A NO S . 2224 & 2225/BANG/2016 ASSESSMENT YEAR S : 2008 - 09 & 2009 - 10 SHRI T. PRASANNA GOWDA, NO.2/1, RANGA, 26 TH A MAIN, 4 TH T BLOCK, JAYANAGAR, BENGALURU. PAN: ACAPP 6356J VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1(3), BENGALURU. APPELLANT RESPONDENT APPELLANT BY : S HRI ASHOK KULKAR NI, ADVO CATE. RESPONDENT BY : S MT. R. PRE MI, JT.CI T(DR)(ITAT), BENGALURU. DATE OF HEARING : 28.01 .202 1 DATE OF PRONOUNCEMENT : 03 .0 2 .202 1 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THESE APPEALS ARE BY THE ASSESSEE DIRECTED AGAINST THE SEPARATE ORDERS OF THE CIT(APPEALS)-11, BENGALURU BOTH DATED 30.9.2016 FOR THE ASSESSMENT YEARS 2008-09 & 2009-10. 2. THE ISSUES RAISED IN THESE APPEALS ARE AS FOLLOW S:- ITA NO.2224/B/16 1. ASSUMPTION OF JURISDICTION U/S. 153C IS NOT IN ACCO RDANCE WITH LAW. ITA NOS.2224 & 2225/BANG/2016 PAGE 2 OF 4 2. ADDITION MADE DID NOT PERTAIN TO INCRIMINATING MATE RIAL FOUND DURING THE COURSE OF SEARCH ACTION U/S. 132. 3. NO CAPITAL GAIN COULD BE BROUGHT TO TAX AS THE ASSE T SOLD WAS NOT A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2 (14) OF THE ACT. 4. WITHOUT PREJUDICE TO THE ABOVE, THE QUANTIFICATION OF LONG TERM CAPITAL GAIN IS NOT IN ACCORDANCE WITH THE LAW . ITA NO.2224/B/16 1. ASSUMPTION OF JURISDICTION U/S. 153C IS NOT IN ACCO RDANCE WITH LAW. 2. ADDITION MADE DID NOT PERTAIN TO INCRIMINATING MATE RIAL FOUND DURING THE COURSE OF SEARCH ACTION U/S. 132. DEDUC TION U/S. 54 OF TH ACT IN RESPECT OF CAPITAL GAIN ARISING PURSUA NT TO JOINT DEVELOPMENT AGREEMENT TO BE GRANTED. 3. NO CAPITAL GAIN COULD BE BROUGHT TO TAX AS THE ASSE T SOLD WAS NOT A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2 (14) OF THE ACT. 4. WITHOUT PREJUDICE TO THE ABOVE, THE QUANTIFICATION OF LONG TERM CAPITAL GAIN IS NOT IN ACCORDANCE WITH THE LAW . 3. AT THE OUTSET, THE LD. AR ARGUED THAT ASSUMPTION OF JURISDICTION IN THESE CASES IS NOT IN ACCORDANCE WITH THE LAW. ACC ORDING TO HIM, NO SATISFACTION NOTE IS RECORDED BY THE AO OF THE SEAR CHED PARTY. THE AO OF THE SEARCHED PARTY HAS TO FIRSTLY SATISFY THAT ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLE OR THING OR BOOKS OF ACCO UNT OR DOCUMENTS SEIZED OR REQUISITIONED BELONG TO ANY PERSON, OTHER THAN T HE PERSON REFERRED TO IN SECTION 153A. THEREAFTER, THE BOOKS OF ACCOUNT OR DOCUMENTS OR ASSETS SEIZED OR REQUISITIONED SHALL BE HANDED OVER BY THE ASSESSING OFFICER OF THE SEARCHED PERSON TO THE ASSESSING OFFICER HAVING JUR ISDICTION OVER SUCH OTHER PERSON. ACCORDING TO HIM, THIS MANDATORY RE QUIREMENT WAS NOT COMPLIED BY THE AO OF THE SEARCHED PERSON. AS SUCH , FURTHER PROCEEDINGS