Sri. M. Parameshwara Murthy, Bangalore V. ITO, Bangalore

ITA 23/BANG/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8553 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 02-02-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 11-01-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SWAPNA DAS J BENGALURU
• Keywords: Capital asset
• Section: 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ITA NO.23/BANG/2016 ASSESSMENT YEAR : 2008-09 SHRI M. PARAMESHWARA MURTHY, NO.5, ASHIRWARD, DR. SHIVARAM KARANTH ROAD, 18 TH MAIN, PADMANABHANAGARA, BENGALURU 560 061. PAN: AELPM 6407Q VS. THE INCOME TAX OFFICER, WARD 4(2), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : NONE RESPONDENT BY : SMT. SWAPNA DAS, JCIT(DR)(ITAT-2), BENGALURU DATE OF HEARING : 02.02.2017 DATE OF PRONOUNCEMENT : 22.02.2017 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINS T THE ORDER OF THE CIT(APPEALS) INTER ALIA ON THE FOLLOWING GROUNDS:- 1. THE ORDER OF THE LEARNED COMMISSIONER (APPEALS ) IS GROSSLY OPPOSED TO LAW AND FACTS OF THE CASE. 2. THE LEARNED COMMISSIONER HAS GROSSLY ERRED IN UPHOLDING THE VIEW OF THE ASSESSING OFFICER THAT THERE WAS A TRANSFER WITHIN THE MEANING OF SEC.2(47)(V) OF THE ACT FOR THE AY 2 008-09 AS THE ITA NO.23/BANG/2016 PAGE 2 OF 3 TRANSACTION OF THE JOINT DEVELOPMENT AGREEMENT WAS ALLEGEDLY IN THE NATURE OF AN EXCHANGE, A VIEW WHICH RUNS COUNTE R TO THE DEFINITION OF THE WORD 'EXCHANGE' IN SEC.118 OF THE TRANSFER OF PROPERTY ACT WHICH NECESSITATES THE EXISTENCE OF TH E TWO PROPERTIES BEING EXCHANGED. 3. WITHOUT PREJUDICE, THE RELIANCE OF THE LEARNED COMMISSIONER ON THE DECISIONS OF THE HON'BLE HIGH C OURT OF KARNATAKA IN THE CASE OF DR. T K DAYALU WHICH HAD A DVERTED TO HON'BLE BOMBAY HIGH COURT IN THE CASE OF CHATURBHUJ DWARAKDAS KAPADIA (260 ITR 491) AND OTHER CASES IS MISPLACED AS THE FACTS OF THE CASE ON HAND WERE ENTIRELY DIFF ERENT IN SO FAR AS THE CONSIDERATION IN THIS CASE WAS INDEFINITE AND N OT QUANTIFIABLE IN THE FORESEEABLE FUTURE. 4. THE LEARNED COMMISSIONER HAS GROSSLY ERRED IN HOLDING THAT THE NATURE CAPITAL GAIN WAS SHORT TERM WHEN IN REALITY THE EFFECTIVE TRANSFER WAS ONLY DURING THE FY 2009-10 R ELEVANT TO THE AY 2010-11 AND HAS THEREBY DENIED THE BENEFIT OF TH E EXEMPTION U/S 54F TO WHICH THE APPELLANT WAS OTHERWISE ENTITL ED. 5. THE LEARNED COMMISSIONER HAS ERRED IN CONFIRMING T HE ADOPTION OF AN ARBITRARY AND HIGHLY UNREASONABLE VA LUE BY THE ASSESSING OFFICER AS THE COST OF CONSTRUCTION IN OR DER TO ARRIVE AT THE CONSIDERATION ARISING ON ACCOUNT OF THE ALLEGED TRANSFER, WHEN IN REALITY THE PREVAILING COSTS OF CONSTRUCTION AT THE IMPUGNED TIME WERE SUBSTANTIALLY LOWER. 6. THE LEARNED COMMISSIONER OUGHT TO HAVE APPRECIATE D THAT WHERE THE CONSIDERATION WAS NOT QUANTIFIABLE AT THE TIME OF THE ALLEGED TRANSFER, THE MACHINERY PROVISIONS WOULD FA IL AND THEREBY THE CHARGING SECTION WOULD ALSO FAIL. 7. IT SHOULD HAVE BEEN HELD THAT AT THE TIME OF THE A LLEGED TRANSFER, WHAT COULD BE TAXED WAS ONLY THE REAL INC OME AND NOT INCOME THAT WAS A MERE ESTIMATION. 8. THE APPELLANT CRAVES FOR LEAVE TO ADD TO, TO DELETE FROM AND TO AMEND THE GROUNDS OF APPEAL. ITA NO.23/BANG/2016 PAGE 3 OF 3 2. THIS APPEAL WAS LISTED FOR HEARING ON 02.02.2017 , BUT NONE APPEARED ON BEHALF OF THE ASSESSEE, DESPITE SERVICE OF THE NOTICE OF HEARING. SINCE THE ASSESSEE DID NOT APPEAR, WE HAV E NO OPTION, BUT TO HEAR THE APPEAL EX PARTE, QUA THE ASSESSEE. ACCORDINGLY, THE REVENUE WAS HEARD. 3. WE HAVE CAREFULLY EXAMINED THE ORDER OF THE CIT( APPEALS) ON THE IMPUGNED GROUNDS AND WE FIND THAT HE HAS RIGHTLY AD JUDICATED THE ISSUES IN DETAIL AND WE FIND NO INFIRMITY THEREIN. ACCORDING LY, WE CONFIRM THE ORDER OF CIT(APPEALS). 4. IN THE RESULT, THE APPEAL OF ASSESSEE IS DISMISS ED. PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY OF FEBRUARY, 2017. SD/- SD/- ( S. JAYARAMAN ) (SUNIL KUMAR YA DAV ) ACCOUNTANT MEMBER JUDIC IAL MEMBER BANGALORE, DATED, THE 22 ND FEBRUARY, 2017. / D S / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.