Ansar Halder, Hooghly V. ITO, Ward - 23(1), Hooghly , Hooghly

ITA 2557/KOL/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 3891 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 28-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K MONDAL
• Assessee Lawyers: D CHATTERJEE; R N GHOSH
• Keywords: Capital asset; Cost of acquisition
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D, KOLKATA BEFORE SH. S.S.GODARA, JUDICIAL MEMBER AND DR.A.L.SAINI, ACCOUNTANT MEMBER ITA NO.2557/KOL/2017 [ASSESSMENT YEAR: 2012-13] ANSAR HALDER, VILL.-GAZIPUR, P.O.-MALIA, P.S.HARIPAL, DIST.-HOOGHLY, PIN-712405. PAN-EIYPS1934P VS IT O , WARD-23(1), AAYAKAR BHAWAN, KHADINAMORE, CHINSURAH, HOOGHLY, WEST BENGAL. (APPELLANT) (RESPONDENT) APPELLANT BY SH. D. C H ATTERJEE, ADV. & SH. R.N.GHOSH, ADV. RESPONDENT BY S H. K.MONDAL, SR.DR DATE OF HEARING 01 . 1 0 .20 18 DATE OF PRONOUNCEMENT 26 .10.2018 ORDER PER S.S.GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR AY 2012-13 ARISES AGAINST THE LEARNED CIT(A)-6, KOLKATA ORDER DATED 24.08.2017 IN APPEAL NO.478/CIT(A)-6/KOL/2015-16, UPHOLDING THE ASSESSING OFFICERS ACTION MAKING LONG TERM CAPITAL GAIN ADDITION OF RS.56,02,375/- IN ASSESSMENT ORDER DATED 05.02.2016, INVOLVING PROCEEDINGS U/S 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (IN SHORT ACT). HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. WE NOTICE AT THE OUTSET THAT THE INSTANT APPEAL DOES NOT REQUIRE MUCH EXAMINATION OF FACTS. THE ASSESSEE WAS OWNER OF A CAPITAL ASSET. THE CAPITAL ASSET IN QUESTION IS IN THE NATURE OF AN IMMOVABLE PROPERTY AT MOUZA-BELGACHI-KISMAT, P.S.LILUA, DISTRICT-HOWRAH. THE SAME STOOD ACQUIRED UNDER THE PROVISIONS OF LAND ACQUISITION LAW. THE ASSESSEE RECEIVED COMPENSATION TO THE TUNE OF RS.56,02,375/- ON 15.03.2012. THE ASSESSING OFFICER SOUGHT TO TAX THIS ENTIRE COMPENSATION SUM. THE ASSESSEE RAISED OBJECTION ABOUT ITS CORRECT COMPUTATION. THE ASSESSING OFFICER MADE NECESSARY REFERENCE TO THE DVO WHO REPORTED THAT THE ASSESSEE HAD DECLARED THAT IT WAS IMPOSSIBLE TO IDENTIFY THE SUBJECTED PROPERTY FOR THE PURPOSE OF ITA NO.2557/KOL/2017 [ASSESSMENT YEAR: 2012-13] PAGE | 2 INSPECTION OR PHYSICAL VERIFICATION. THIS MADE THE ASSESSING OFFICER TO ASSESS THE ENTIRE COMPENSATION SUM TO BE REPRESENTING LONG TERM CAPITAL GAINS AS AFFIRMED IN THE COURSE OF LOWER AUTHORITIES PROCEEDINGS. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ABOVE REFERRED FACTS AND CIRCUMSTANCES SUFFICIENTLY INDICATE THAT THE LOWER AUTHORITIES HAVE ASSESSED ASSESSEES ENTIRE COMPENSATION MONEY WITHOUT EVEN GIVING INDEXATION BENEFIT AS PROVIDED U/S 48 EXPLANATION (III) W.E.F 01.04.1981. CASE FILE PRIMA FACIE SUGGESTS THAT THE CAPITAL ASSETS IN ISSUE CAME TO THE ASSESSEE BY WAY OF INHERITANCE. SECTION 49(1)(III)(A) OF THE ACT MAKES IT VERY CLEAR THAT COST OF ACQUISITION IN SUCH AN INSTANCE IS TO BE DEEMED AS THE COST FOR WHICH THE PREVIOUS OWNER ACQUIRED THE CAPITAL ASSET IN ISSUE AS INCREASED BY COST OF IMPROVEMENT THEREOF. WE TAKE INTO ACCOUNT ALL THESE IRREGULARITIES IN BOTH THE LOWER AUTHORITIES IDENTICAL ACTION TO RESTORE THE IMPUGNED LONG TERM CAPITAL GAINS ISSUE BACK TO THE ASSESSING OFFICER TO REFRAME CONSEQUENTLY ASSESSMENT AS PER LAW AFTER AFFORDING ADEQUATE OPPORTUNITY OF HEARING TO THE TAXPAYER. IT IS MADE CLEAR THAT THE AO/DVO WOULD BE AT LIBERTY TO SEEK NECESSARY ASSISTANCE FROM MUNICIPAL/REVENUE AUTHORITIES FOR THE PURPOSE OF IDENTIFICATION OF THE CAPITAL ASSETS VIS--VIS THE DISTRESSING FACTORS; IF ANY INVOLVED IN FAIR MARKET VALUATION THEREOF. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 26.10.2018. SD/- SD/ (A.L.SAINI) (S.S.GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE:- 26.10.2018 *AMIT KUMAR* ITA NO.2557/KOL/2017 [ASSESSMENT YEAR: 2012-13] PAGE | 3 COPY FORWARDED TO: 1. APPELLANT- ANSAR HALDER, VILL.-GAZIPUR, P.O.-MALIA, P.S.HARIPAL, DIST.- HOOGHLY, PIN-712405. 2. RESPONDENT- ITO, WARD-23(1), AAYAKAR BHAWAN, KHADINAMORE, CHINSURAH, HOOGHLY, WEST BENGAL. 1. CIT-KOLKATA 2. CIT(APPEALS)-KOLKATA 3. DR: ITAT-KOLKATA BENCHES SR.P.S./H.O.O ITAT, KOLKATA