DR. UMA R. MAHESHWARI, MUMBAI V. ITO 11(3)(4), MUMBAI

ITA 5726/MUM/2012

• Counselvise Citation: 572619914 RSA 2012
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2005-2006
• Appeal Filed On: 11-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY SHANKAR
• Assessee Lawyers: D C JAIN
• Keywords: Rectification of order; Cost of acquisition
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MU MBAI BEFORE SHRI RAJENDRA SINGH,AM AND SHRI VIVEK VARMA , JM ./ I.T.A. NO.5726/M/2012 ( / ASSESSMENT YEAR: 2005-06) DR. UMA R. MAHESHWARI BLDG. NO.20.4 BUNGLOW, MANISH NAGAR, ANDHERI (W) MUMBAI 400053 / VS. ITO 11(3)(4) AAYAKAR BHAVAN, 4 TH FLOOR, M.K. ROAD MUMBAI- ./ ./PAN/GIR NO. AACPM8554B ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI D.C. JAIN / RESPONDENT BY : MS. VIJAY SHANKAR ! / DATE OF HEARING : 06.11.2013 '#$% ! / DATE OF PRONOUNCEMENT : 06 .11.2013 &' / O R D E R PER RAJENDRA SINGH, A. M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 31.07.2012 OF CIT(A) FOR A.Y.2005-06. THE ONLY DISPUTE RAISED IN THIS APPEAL IS REGARDING ORDER PASSED BY AO UNDER SECTION 154 OF THE ACT RECTIFYIN G THE RATE OF TAX. 2 ITA NO5726 /M/2012 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE FOR THE RELEVANT YEAR HAD DECLARED TOTAL INCOME OF RS.29,67,107/- WHICH INCLUDED CAPITAL GAI N OF RS.19,02,000/-. THE CAPITAL GAIN WAS LONG TERM CAPITAL GAIN IN RESPECT OF SALE OF IMMOVABLE PROPERTY. THE ASSESSEE HAD PAID TAX @ OF 10% ON THE GAIN COMP UTED WITHOUT INDEXATION. THE AO RECTIFIED ORDER U/S.154 AND LEVIED TAX @ 20% ON THE CAPITAL GAIN COMPUTED WITHOUT INDEXATION. IN APPLIED, CIT(A) OBSERVED THA T THE ASSESSEE HAD NOT CLAIMED ANY COST INDEXATION IN RESPECT OF THE FLAT AT THE T IME OF FILING RETURN OF INCOME AND THEREFORE, THE SAME COULD NOT BE ALLOWED IN THE ORD ER PASSED U/S.154. HE, THEREFORE, UPHELD THE ORDER OF AO LEVYING TAX @ 20% WITHOUT IN DEXATION. AGGRIEVED BY THE DECISION OF CIT(A), THE ASSESSEE IS IN APPEAL BEFOR E TRIBUNAL. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS AND CONSIDERED THE MATTER CAREFULLY. IN RESPECT OF LONG TERM CAPITAL G AIN ARISING FROM SALE OF IMMOVABLE PROPERTY, TAX RATE OF 20% IS TO BE APPLIE D ON THE CAPITAL GAIN COMPUTED WITH INDEXED COST OF ACQUISITION. THE ASSESSEE HAD APPLIED THE RATE OF 10% ON THE CAPITAL GAIN COMPUTED WITHOUT INDEXATION. THERE IS, THEREFORE, APPARENT MISTAKE IN THE INTIMATION ISSUED U/S.143(1) ACCEPTING THE RATE OF 10%. THE INTIMATION, THEREFORE, IS RECTIFIABLE AND CORRECT RATE OF 20% H AS TO BE APPLIED ON THE CAPITAL GAIN COMPUTED WITH INDEXATION. THE AO HAS APPLIED RATE O F 10% WITHOUT INDEXATION WHICH IS NOT CORRECT. THE RATE OF TAX CAN BE CORREC TED U/S.154 BUT FOR APPLYING THE CORRECT RATE, CAPITAL GAIN HAS TO BE COMPUTED CORRE CTLY WHICH IS WITH INDEXATION. THEREFORE, THE ORDER OF CIT(A) CONFIRMING THE ACTIO N OF AO CANNOT BE SUSTAINED. WE ACCORDINGLY, SET ASIDE THE ORDER OF CIT(A) AND D IRECT THE AO TO APPLY THE RATE OF 20%, IN RESPECT OF LONG TERM CAPITAL GAIN ON SAL E OF IMMOVABLE PROPERTY TO BE COMPUTED WITH INDEXATION. 3 ITA NO5726 /M/2012 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 06.11.2013 SD/- SD/- (VIVEK VARMA ) (RAJ ENDRA SINGH) () & / JUDICIAL MEMBER & / ACCOUNTANT MEMBER * + MUMBAI; ,& DATED : 06 .11.2013 .). ./A.K.PATEL . PS ! '#$% &%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4 ( ) / THE CIT(A) 4. 4 / CIT - CONCERNED 5. 789 ) ):; , ! :;% , * + / DR, ITAT, MUMBAI 6. 9=> / GUARD FILE ' / BY ORDER, (/') * (DY./ASSTT. REGISTRAR) , * + / ITAT, MUMBAI