Praveen Kumar Bokaria, CHENNAI V. ITO Non Corporate Ward 5(4), CHENNAI

ITA 2763/CHNY/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0310 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 17-11-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B SAGADEVAN JCIT
• Assessee Lawyers: KETAN K JAIN
• Keywords: Business income; Depreciation; Principle of natural justice; Cost of acquisition; Unabsorbed depreciation; Capital Gains
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: CHENNAI , !' #'$ % ! , & ' BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ' ./ ITA NO.2763/CHNY/2017 !( /ASSESSMENT YEAR: 2012-13 SHRI PRAVEEN KUMAR BOKARIA, NO.25, VEPERY HIGH ROAD, PERIAMET, CHENNAI 600 003. VS. INCOME TAX OFFICER, NON-CORPORATE WARD-5(4), CHENNAI. [PAN: AADPB 9472C] ( ) /APPELLANT) ( *+) /RESPONDENT) ) , - / APPELLANT BY : SHRI KETAN K. JAIN, C.A *+) , - /RESPONDENT BY : SHRI B. SAGADEVAN, JCIT . ! , /& /DATE OF HEARING : 27.03.2019 01( , /& / DATE OF PRONOUNCEMENT : 02.04.2019 2 / O R D E R PER INTURI RAMA RAO, ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AG AINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -5, CHENNAI (HEREINAFTER CALLED AS CIT(A)) DATED 19.09.2017 F OR THE ASSESSMENT YEAR 2012-13. 2. THE APPELLANT RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX (AP PEALS) IS CONTRARY TO LAW, FACTS AND CIRCUMSTANCES OF THE CAS E AND IS OPPOSED TO THE PRINCIPLE OF EQUITY, NATURAL JUSTICE AND FAI R PLAY. ITA NO.2763/CHNY/2017 (AY: 2012-13) :- 2 -: 2. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS FAI LED TO APPRECIATE THE ORDER OF THE ASSESSING OFFICER, AS B AD IN LAW. 3. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS FAI LED TO ACCEPT THE CONTENTION OF THE APPELLANT THAT THE APPELLANT IS ELIGIBLE FOR INDEXATION FROM THE PERIOD FOR WHICH THE ASSET WAS HELD BY THE PREVIOUS OWNER. 4. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS FAI LED TO ACCEPT THE CONTENTION OF THE APPELLANT THAT THE BUSINESS L OSS IS OUGHT TO BE ALLOWED. 5. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS FAI LED TO ACCEPT THE CONTENTION OF THE APPELLANT THAT THE APPELLANT IS ELIGIBLE FOR CLAIM OF UNABSORBED DEPRECIATION EVEN WHEN THE RETURNS AR E FILED BELATEDLY THE APPELLANT. 6. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ALS O FAILED TO APPRECIATE THE REMAND REPORT PROVIDED BY THE LEARNE D ASSESSING OFFICER ON 19TH1 APRIL 2017 WHEREIN THE APPELLANT H AS SUBMITTED THE PURCHASE INVOICES AS ACKNOWLEDGED BY THE LEARNED AS SESSING OFFICER. 7. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ALS O FAILED TO NOTE THAT THE EVIDENCES FOR PURCHASE OF FIXED ASSET S WERE SUBMITTED BY THE APPELLANT ON 29TH DECEMBER 2016. 8. THE COMMISSIONER OF INCOME TAX (APPEALS) UPHELD THE ACTION OF THE LEARNED INCOME TAX OFFICER, THUS REJECTED THE A PPEAL. PRAYER FOR THESE GROUNDS AND SUCH OTHER GROUNDS THAT MAY B E ADDUCED BEFORE OR DURING THE HEARING OF THIS APPEAL WITH TH E LEAVE OF THE HONBLE TRIBUNAL, IT IS PRAYED THAT A. CONSIDER THE PERIOD OF HOLDING FOR CALCULATION O F INDEXED COST OF ACQUISITION FROM THE YEAR IN WHICH THE ASSET WAS AC QUIRED BY THE PREVIOUS OWNER I.E. 01/04/1981 B. ALLOW THE BUSINESS LOSS AS CLAIMED BY THE APPELL ANT IN THE RETURN OF INCOME C. ALLOW THE UNABSORBED DEPRECIATION LOSS AS CLAIME D BY THE APPELLANT IN THE RETURN OF INCOME. D. SUCH OTHER ORDERS MAY BE PASSED AS THE HONBLE T RIBUNAL MAY DEEM FIT. 3. THE BRIEF FACTS OF THE CASE ARE AS UNDER: THE APPELLANT IS AN INDIVIDUAL ENGAGED IN THE BUSIN ESS OF MESHES AND WIRES. THE RETURN OF INCOME FOR THE AY 2012-13 WAS FILED ON ITA NO.2763/CHNY/2017 (AY: 2012-13) :- 3 -: 28.09.2012 DISCLOSING TOTAL INCOME OF RS. 9,140/-. AGAINST THE SAID RETURN OF INCOME, THE ASSESSMENT WAS COMPLETED BY ITO, NON -CORPORATE WARD- 5(4), CHENNAI (HEREINAFTER CALLED AO) VIDE ORDER DATED 30.01.2015 PASSED U/S. 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AT TOTAL INCOME OF RS. 34,65,976/-. WHILE DOING SO, THE AO M ADE ADDITION WHILE COMPUTING THE CAPITAL GAINS ON THE SALE OF THE HOUS E PROPERTY AT F-39, ANNA NAGAR EAST, CHENNAI HAD NOT ALLOWED COST OF AC QUISITION AS THE PROPERTY WAS SETTLED IN FAVOUR OF THE ASSESSEE BY H IS FATHER WITHOUT ANY CONSIDERATION WHICH DOES NOT ALLOWED SET OFF OF THE BROUGHT FORWARD LOSSES FOR ASSESSMENT YEAR 2008-09 WAS NOT VALIDATE FOR NON RECEIPT OF ITR-V. 4. BEING AGGRIEVED, AN APPEAL WAS PREFERRED BEFORE LD. CIT(A), WHO VIDE IMPUGNED ORDER DISMISSED THE APPEAL. BEING AGG RIEVED, THE APPELLANT IS IN APPEAL BEFORE US IN THE PRESENT APP EAL. 5. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL ON RECORD. THE GROUNDS OF APPEAL NO.1, 2 & 8 ARE GENE RAL IN NATURE THEREFORE, DOES NOT REQUIRE ANY ADJUDICATION. THE GROUNDS OF APPEAL NO.3 & 4 CHALLENGES THE ACTION OF LOWER AUTHORITIES IN NOT ALLOWING THE COST OF ACQUISITION WILE COMPUTING THE CAPITAL GAIN S. IT IS UNDISPUTED FACT THAT THE PROPERTY, WHICH WAS SOLD WAS SETTLED IN FA VOUR OF THE APPELLANT BY HIS FATHER. THE PROVISIONS OF S. 49(1) STIPULATES THAT UNDER CERTAIN ITA NO.2763/CHNY/2017 (AY: 2012-13) :- 4 -: CIRCUMSTANCES, LIKE SETTLEMENT OF PROPERTY THE COST OF ACQUISITION IN THE HANDS OF THE PREVIOUS OWNER SHALL BE TAKEN AS THE C OST OF ACQUISITION OF THE PROPERTY. ACCORDINGLY, THE ACTION OF THE LOWER AUTHORITIES NOT ALLOWING COST OF ACQUISITION IS AGAINST PLAIN PROVISIONS OF S. 49(1) OF THE ACT AND THEREFORE, WE DIRECT THE LOWER AUTHORITIES TO ALLOW THE BENEFIT OF COST OF ACQUISITION IN THE HANDS OF THE APPELLANT BY ADOPTI NG THE COST OF ACQUISITION IN THE HANDS OF THE PREVIOUS OWNER. H ENCE, THE GROUNDS OF APPEAL 3 & 4 ARE PARTLY ALLOWED FOR STATISTICAL PUR POSES. 6. THE GROUNDS OF APPEAL NO.5, 6 & 7 CHALLENGES THE ACTION OF THE DENIAL OF BENEFIT OF SET OFF OF THE BROUGHT FORWARD BUSINESS LOSSES FOR ASSESSMENT YEAR 2008-09 AGAINST THE CURRENT YEARS BUSINESS INCOME. THE REASON STATED BY THE AO WHILE DENYING THE BENEF IT OF SET OFF IS NON RECEIPT OF ITR-V BY THE CPC, WHEREAS IT IS THE CONT ENTION OF THE ASSESSEE THAT ITR-V IS SENT BY POST AND THEREFORE, THE BENEF IT SHOULD BE ALLOWED. CONSIDERING THE SUBMISSIONS MADE ON BEHALF OF THE A PPELLANT, WE REMIT THE ISSUE BACK TO THE FILE OF AO FOR DUE VERIFICATI ON OF THE EVIDENCE AS REGARDS TO THE FILING OF RETURN OF INCOME FOR ASSES SMENT YEAR 2008-09 WITHIN DUE DATE, IF SO TO ALLOW THE BENEFIT OF SET OFF OF UNABSORBED BUSINESS LOSS AGAINST THE CURRENT YEARS BUSINESS I NCOME ACCOUNT, IF AVAILABLE. HENCE, THE GROUNDS OF APPEAL NO.5, 6 & 7 OF THE ASSESSEE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.2763/CHNY/2017 (AY: 2012-13) :- 5 -: 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 02 ND APRIL, 2019 IN CHENNAI. SD/- SD/- ( ) (GEORGE MATHAN) /JUDICIAL MEMBER ( #'$ % ! ) (INTURI RAMA RAO) & /ACCOUNTANT MEMBER /CHENNAI, 3' /DATED: 02 ND APRIL, 2019 . EDN, SR. P.S 2 , */45 65(/ /COPY TO: 1. ) /APPELLANT 2. *+) /RESPONDENT 3. . 7/ ( )/CIT(A) 4. . 7/ /CIT 5. 5!89 */ /DR 6. 9: ; /GF