Income Tax Officer, Ward-5(3)(1), Bengaluru V. Sri. P. Krishnappa, Bengaluru

ITA 2661/BANG/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7572 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 07-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 54F; 142(1); 250; 148; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES C BENCH: BANGALORE BEFORE SHRI A.K. GARODIA, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA. NO. 127 /BANG/2018 (ASSESSMENT YEAR: 2007 - 08 ) SHRI P. KRISHNAPPA, NO.385, NEAR AKRUTY AMITY APARTMENT, KAMMASANDRA, SAMPIGENAGAR MAIN ROAD, BANGALORE - 560 100 APPELLANT. VS. INCOME TAX OFFICER, WARD 5(3)(1), BANGALORE. RESPONDENT. ITA. NO. 2661 /BANG/201 7 (ASSESSMENT YEAR: 2007 - 08 ) (BY REVENUE) ASSESSEE BY: SHRI H. GURUSWAMY, ITP. REVENUE BY: DR. P. V. PRADEEP KUMAR, ADDL. CIT (D.R) DATE OF HEARING : 11.07 .2019 DATE OF PRONOUNCEMENT : 24 .07 .2019 O R D E R PER SHRI PAVAN KUMAR GADALE, JM : THESE ARE THE CROSS APPEAL S FILED BY THE ASSESSEE AND REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 5, BANGALORE PASSED UNDER SECTION 143(3) R.W.S. 147 AND 250 OF THE INCOME TAX ACT, 1961. FOR THE SAKE OF CONVENIENCE, WE SHALL TAKE UP THE ASSESSEE'S APPEAL AND F ACTS NARRATED AND FOLLOWING GROUNDS OF APPEAL ARE AS UNDER : 2 ITA NO S . 127 & 2661/BANG/2017 3 ITA NO S . 127 & 2661/BANG/2017 2. THE ASSESSEE IS AN INDIVIDUAL AND HAS INCOME FROM CAPITAL GAINS. THERE IS A DELAY IN FILING ASSESSEE'S APPEAL AND THEREFORE THE ASSESSEE HAS FILED AN APPLICATION OF CONDONATION OF DELAY. WE CONSIDERING THE SUBMISSIONS IN THE PETITION A RE SATISFIED THAT THE DELAY IS REASONABLE AND THE LD. DR HAS NO SPECIFIC SERIOUS OBJECTION. ACCORDINGLY, WE CONDONE THE DELAY AND ADMIT THE APPEAL. THE BRIEF FACTS THAT T HE ASSESSEE HAS ENTERED INTO A JOINT DEVELOPMENT AGREEMENT (JDA) ON 22.4.2006 WITH DEVELOP ER M/S. AKRUTI REALTORS FOR CONSTRUCTION OF RESIDENTIAL APARTMENTS ON LAND OF 1 ACRE 17 GUNTAS IN ATTIBELE HOBLI AND AS PER THE TERMS OF AGREEMENT THE ASSESSEE HAS TRANSFERRED 65% OF UNDIV IDED INTEREST OF PROPERTY TO DEVELOPER IN CONSIDERATION WHICH IS EQUAL TO 35% OF DEVELOPED AREA. SINCE THE ASSESSEE HAS NOT FILED THE RETURN OF INCOME, NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED , IN COMPLIANCE THE ASSESSEE HAS DISCLOSED CAPITAL GAIN S IN THE RETURN OF INCOME AS NIL. SUBSEQUENTLY, T HE ASSESSING OFFICER ISSUED NOTICES UNDER SECTION 143(2) AND 142(1) OF THE ACT AND AFTER CONSIDERING THE DOCUMENTS / DETAILS FILED BY THE ASSESSEE IN THE COURSE OF ASSESSMENT AND THE ASSESSEE HAS CLAIMED EXEMPTION UNDER SECTION 54F OF THE ACT. THE ASSESSING OFFICER HAS MADE AN ADDITION BY DISALLOWING THE C LAIM UNDER SECTION 54F AND TAX ED LONG TERM CAP ITAL GAINS (LTCG) UNDER JDA RS.3,29,04,570 AND ASSESSED THE TOTAL INCOME OF RS .3,30,06,680 AND PASSED THE ORDER UNDER SECTION 143(3) OF THE ACT DT.31.07.2015. AGGRIEVED BY THE ORDER, THE ASSESSEE HAS FILED AN APPEAL WITH THE 4 ITA NO S . 127 & 2661/BANG/2017 CIT(APPEALS). THE CIT(APPEALS) CONSIDERING THE GROUNDS OF APPEAL, ASSESSEE'S SUBMISSIONS AND THE PROVISI ONS OF LAW, JUDICIAL DECISIONS OBSERVED THAT IN THE CURRENT ASSESSMENT YEAR THERE IS NO TRANSFER OF PROPERTY AND GAVE SPECIFIC DIRECTION, AT PARA 5.6 TO 5.10. AGGRIEVED BY THE ORDER OF CIT(APPEALS), THE ASSESSEE HAS FILED AN APPEAL WITH THE TRIBUNAL ON T HE GROUND THAT THE DIRECTION OF CIT(APPEALS) TO CHARGE CAPITAL GAINS IN THE ASSESSMENT YEAR 2008 - 09 IS AGAINST THE LAW. 3. WE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE SOLE DISPUTED ISSUE IS IN RESPECT OF DIRECTION S OF THE CIT(APPEALS) TO CHARGE THE CAPITAL GAINS CHARGEABLE IN THE ASSESSMENT YEAR 2008 - 09 AS AGAINST ASSESSMENT YEAR 2007 - 08. WE FOUND THAT THE CIT(APPEALS) HAVING CONSIDERED ASSESSEE'S SUBMISSION, LEGAL POSITION OF LAW AND TRANSFER OF PROPERTY DEALT ON THE DISP UTED ISSUE APPLYING THE PROVISIONS AND HAS ONLY DIRECTED THE ASSESSING OFFICER TO CALCULATE THE CAPITAL GAINS IN THE YEAR OF FINAL JDA. WE FIND THE CIT (APPEALS) HAS PASSED A SPEAKING ORDER WHICH CANNOT BE INTERFERED AND ACCORDINGLY WE UPHOLD THE SAME AN D DISMISS THE APPEAL OF THE ASSESSEE. 4. THE REVENUE HAS FILED AN APPEAL AGAINST THE ORDER OF CIT(APPEALS). 5. AT THE TIME OF HEARING, THE LD. DR COULD NOT CONTROVERT THE FINDING S OF THE CIT(APPEALS) O N THE DIRECTIONS TO A.O. WITH ANY NEW OR COGENT MATERIAL. W E FIND THAT THE CIT(APPEALS) C O N S I D E R E D THE GROUNDS OF APPEAL, SUBMISSIONS AND FINDINGS OF THE ASSESSING OFFICER HAS PASSED A REASONABLE ORDER AND WE ARE NOT INCLINED TO INTERFERE WITH THE ORDER AND DISMISS THE GROUN DS OF APPEAL OF THE REVENUE . 5 ITA NO S . 127 & 2661/BANG/2017 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE AND REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 4 T H JULY, 2019. S D / - S D / - (A.K. GARODIA) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 2 4 .07. 2019. *REDDY GP COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT (A) 4. PR. CIT 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE TRIBUNAL BANGALORE