Mrs.N.Manjula, W/o.Dr.Shivarudraswamy, Bangalore V. Income-Tax Officer, Bangalore

ITA 2329/BANG/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5292 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 30-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K BIJU
• Assessee Lawyers: P DINESHA
• Keywords: Cost of acquisition
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-A BENCH : BANGALORE BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO. 2329/BANG/2016 ASSESSMENT YEAR : 2005-06 MRS. N. MANJULA, W/O. DR. SHIVARUDRASWAMY, D. NO. D-1013, SHANKARA NAGAR, BENGALURU-560092. PAN : AAAAK6324Q VS. INCOME TAX OFFICER, WARD-6(2), BENGALURU. APPELLANTS RESPONDENT ASSESSEE BY : SHRI. P. DINESHA, ADVOCATE REVENUE BY : SHRI. M. K. BIJU, JCIT DATE OF HEARING : 23.05.2017 DATE OF PRONOUNCEMENT : 31.05 .2017 O R D E R PER VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 15.09.2016 OF CIT(A) FOR THE ASSESSMENT YEAR 2005-06. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: ITA NO. 2329/BANG/2016 PAGE 2 OF 4 2. I HAVE HEARD THE LEARNED DR AS WELL AS THE LEARN ED AR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE AS SESSMENT WAS FRAMED UNDER SECTION 144 AS NONE APPEARED BEFORE TH E AO. THOUGH THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER BEFORE THE CIT(A) BUT THE APPEAL OF THE ASSESSEE WAS AGAIN DIS MISSED BY THE CIT(A) EX-PARTE DUE TO THE REASON THAT DESPITE NOTI CE ISSUED NONE HAS APPEARED EVEN BEFORE THE CIT(A). THE LIMITED G RIEVANCE OF THE ASSESSEE IN THE PRESENT APPEAL IS THAT THE AUTH ORITIES HAVE NOT GIVEN A REASONABLE OPPORTUNITY TO THE ASSESSEE TO P RESENT ITS CASE. FURTHER, THE AO WHILE MAKING THE ADDITION HAS NOT G IVEN THE DEDUCTION TOWARDS THE COST OF ACQUISITION AS WELL A S BENEFIT OF INDEX COST OF ACQUISITION. IT IS NOTED THAT THE AO HAS MENTIONED IN THE ORDER THAT THERE IS NO TIME AVAILABLE FOR FU RTHER INVESTIGATION IN THE CASE AS THE ASSESSMENT IS BARR ED BY LIMITATION. ITA NO. 2329/BANG/2016 PAGE 3 OF 4 THEREFORE, THE ASSESSMENT WAS CONCLUDED BY COMPUTIN G THE SHARE RECEIVED BY THE ASSESSEE ON THE SALE OF PROPERTY AS INCOME FROM OTHER SOURCES. HENCE, IT IS APPARENT THAT THE GAIN IF ANY ARISING FROM THE SALE OF THE PROPERTY HAS TO BE COMPUTED AS CAPITAL GAIN AFTER ALLOWING THE COST OF ACQUISITION AS WELL AS B ENEFIT OF INDEXATION. HENCE, I FIND THAT THE AO HAS NOT CONS IDERED THE ALLOWABLE DEDUCTIONS WHILE FRAMING THE ASSESSMENT A ND BRINGING THE CAPITAL GAIN IN THE HANDS OF THE ASSESSEE TO TA X. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN THE INT EREST OF JUSTICE, THE MATTER IS SET ASIDE TO THE RECORD OF THE AO FOR ADJUDICATION OF THE SAME AFRESH AFTER ALLOWING AN OPPORTUNITY OF HE ARING TO THE ASSESSEE AS WELL AS CONSIDERING THE COST OF ACQUISI TION AND BENEFIT OF INDEX COST OF ACQUISITION WHILE COMPUTING THE CA PITAL GAIN. 3. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF MAY, 2017. SD/- (VIJAY PAL RAO) JUDICIAL MEMBER BANGALORE. DATED: 31 ST MAY, 2017. / NSHYLU /* ITA NO. 2329/BANG/2016 PAGE 4 OF 4 COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.