Shashi Khanna, New Delhi V. ACIT, Central Circle-29, New Delhi

ITA 2941/DEL/2022

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 4152 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 01-11-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 15-12-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Capital Gains

Judgement Text

I.T.A.No.2941/Del/2022 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “G” NEW DELHI BEFORE SHRI G.S. PANNU, HON’BLE VICE PRESIDENT AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER आ .अ.स ं /.I.T.A No.2941/Del/2022 /Assessment Year: 2016-17 Shashi Khanna, C/o Khanna Jewellers, 2623-24, Bank Street, Karol Bagh, New Delhi. ब म Vs. ACIT Central Circle-29, New Delhi. PAN No.AATPK2944E अ Appellant /Respondent Assessee by Shri Ramesh Goyal, Adv. Revenue by Shri Anuj Garg, Sr. DR स ु नवाईक तारीख/ Date of hearing: 02.11.2023 उ ोषणाक तारीख/Pronouncement on 30.01.2024 आदेश /O R D E R PER C.N. PRASAD, J.M. This appeal is filed by the Assessee against the order of the Ld.CIT(A)-30, New Delhi dated 18.10.2022 for the AY 2016-17. The assessee has raised the following grounds in his appeal: - 1. “Order of the Ld.CIT(A) is bad in law and against the facts of the case. 2. The Ld.CIT(A) and Ld.AO are totally unjustified in not allowing the claim of assessee on account of conversion charges to the tune of Rs.17,12,535/- i.e. 50% of total conversion charges paid to MCD. I.T.A.No.2941/Del/2022 2 3. The Ld.CIT(A) is not justified in not allowing cost of construction on indexation basis in the calculation of STCG where the property remained more than 3 years with the assessee. 4. The Ld.CIT(A) is totally unjustified in taking cost of construction Rs.37,42,405/- in place of Rs.46,33,271/-.” 2. The Ld. Counsel for the assessee, at the outset, submits that assessee is a co-owner along with late Smt. Sushma Khanna and the Tribunal in the co-owner’s case namely Smt. Sushma Khanna represented by legal heir Shri Raj Kishan Khanna in ITA No.1056/Del/2023 dated 29.09.2023 decided identical issue directing the Assessing Officer (for short referred as the “AO”) to compute the long term capital gains as against computation made by the AO as short term capital gains. Copy of the order is placed on record. 3. Heard rival submissions. On perusal of the order of the Tribunal in co-owner’s case, we find that the issues in appeal have been considered by the Tribunal and restored the issues to the file of the AO to compute the long term capital gains by taking into consideration the approval of the Delhi Nagar Nigam observing as under: “2. Following grounds have been raised by the assessee in this appeal: I.T.A.No.2941/Del/2022 3 1. Order of the Ld.CIT(A) is bad in law and against the facts of the case. 2. The Ld.CIT(A) and Ld.AO are totally unjustified in not allowing the claim of assessee on account of conversion charges to the tune of Rs.17,12,535/- i.e. 50%of total conversion charges paid to MCD. 3. The Ld. CIT(A) is not justified in not allowing cost of construction on indexation basis in the calculation of STCG where the property remained more than 3 years with the assessee. 4. The Ld.CIT(A) is totally unjustified in taking cost of construction as Rs.37,42,405/- in place of Rs.46,33,271/- by ignoring indexation cost. The observation of the Ld.CIT(A) is wrong in holding that MCD plan was sanctioned on 26.03.2014 and property was sold on 04.03.2016. In fact the MCD plan was sanctioned on 14.12.2009 and was valid up to 13.12.2014. So the assessee was eligible for indexation cost.” 3. Heard the arguments of both the parties and perused the material available on record. 4. The Ld.CIT(A) at page no.9 of the order concurred with the observation with the Assessing Officer and in determination of “Short Term Capital Gains” (STCG) as the property was reconstructed after demolition of old house and after getting the plan sanctioned from MCD on 26.03.2014. As the property was not in existence for a period of more than 3 years.......” 5. The property was sold on 04.03.2016 and hence the revenue authorities held that the property was not in existence for a period of more than 3 years Short Term Capital Gains have been determined. 6. The approval of the Delhi Nagar Nigam is reproduced below: I.T.A.No.2941/Del/2022 4 7. The Delhi Nagar Nigam has approved the permission on 14.12.2009 which was based on the letter of the assessee dated 10.08.2009 and the same was valid upto 13.12.2014. 8. From the above, we hold that the Ld.CIT(A) fallen into error in determining the period of Short Term I.T.A.No.2941/Del/2022 5 Capital and hence the matter is remanded to the file of the Jurisdictional Assessing Officer (JAO) to compute the Long Term Capital Gains by properly taking into consideration the approval of the Delhi Nagam Nigam.” 4. Following the order of the Tribunal, we restore this appeal to the file of the AO to compute the long term capital gain, keeping in view the directions of the Tribunal in the co-owner’s case namely Late Smt. Sushma Khanna represented by legal heir Shri Raj Kishan Khanna. Needless to say, the AO shall provide adequate opportunity of being heard to the assessee. 5. In the result, appeal of the assessee is allowed for statistical purpose. Order pronounced in the open court on 30/01/2024 Sd/- Sd/- (G.S. PANNU) (C.N. PRASAD) VICE PRESIDENT JUDICIAL MEMBER Dated: 30/01/2024 *Kavita Arora, Sr. P.S. Copy of order sent to- Assessee/AO/Pr. CIT/ CIT (A)/ ITAT (DR)/Guard file of ITAT. By order Assistant Registrar, ITAT: Delhi Benches-Delhi