JAYANTILAL TOKERSHI DEDHIA, MUMBAI V. DCIT - CIRCLE 2, KALYAN

ITA 6246/MUM/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 9398 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2015-2016
• Appeal Filed On: 01-11-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Capital Gains
• Section: 143(3)

Judgement Text

ITA NO.6246/MUM/2018 JAYANTILAL TOKERSHI DEDHIA ASSESSMENT YEAR: 2015-16 1 IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI , , BEFORE HONBLE SHRI AMARJIT SINGH, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO.6246/MUM./2018 ( / ASSESSMENT YEAR: 2015-16) SHRI. JAYANTILAL TOKERSHI DEDHIA PLOT NO.75, SHANTI NIWAS KANSAI SECTION AMBERNATH (E),MAHARASHTRA- 421 501. / VS. D CIT (OSD) - CIRCLE - 2 , 2 ND FLOOR, MOHAN PLAZA WAYALE NAGAR, KHADAKPADA KALYAN (W), MAHARASHTRA-421 301. '# ./ ./PAN/GIR NO. AJQPD-8550-K ( !#% /APPELLANT ) : ( &'#% / RESPONDENT ) ASSESSEE BY : SHRI BHADRESH DOSHI-LD. AR REVENUE BY : MS. USHA GAIKWAD LD. DR / DATE OF HEARING : 07/12/2020 / DATE OF PRONOUNCEMENT : 04/01/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2015-16 CONTEST THE ORDER OF L D. COMMISSIONER OF INCOME-TAX (APPEALS)-3, THANE [IN SHORT REFERRED TO AS CIT(A)], APPEAL NO.10201-THN/17-18 DATED 01/08/2018 ON CERTAIN GROU NDS OF APPEAL. ITA NO.6246/MUM/2018 JAYANTILAL TOKERSHI DEDHIA ASSESSMENT YEAR: 2015-16 2 2. THE LD. AR FOR ASSESSEE, AT THE OUTSET, PRESSED ONLY FOR ADDITIONAL GROUNDS OF APPEAL IN VIEW OF THE FACT THAT ANOTHER ASSESSMENT HAS BEEN FRAMED SUBSEQUENTLY FOR AY 2012-13 U/S 143(3) R.W.S .147 OF THE ACT AND THE SAME HAS BEARING ON THE ISSUE. THE ADDITIONAL G ROUND OF APPEAL READ AS UNDER: - ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE APPELLANT MAY PLEASE BE ALLOWED A RELIEF TO THE EXTENT OF THE VALUE OF FLAT S / SHOPS WHICH HAS ALREADY BEEN TAXED IN A.Y.2012-13 VIDE ASSESSMENT ORDER DATED 27 -12-2018 PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT AND THEREBY REDUCING THE CAPITAL GAIN ARISING UPON TRANSFER OF SAID FLATS /SHOPS DUR ING THE YEAR UNDER CONSIDERATION TO THAT EXTENT. IT IS EVIDENT THAT THE ASSESSEE WHILE ACCEPTING THE QUANTUM ADDITIONS AS MADE DURING THE YEAR, IS ONLY SEEKING RELIEF OF CAP ITAL GAIN TO THE EXTENT THAT HAS ALREADY BEEN TAXED IN AY 2012-13. THE LD. DR SUBMITTED THAT THE ISSUE BEING FACTUAL MATTER WOULD REQUIRE VERIFI CATION AND THEREFORE, IT MAY BE RESTORED BACK TO LD. AO. 3. WE FIND THAT AN ASSESSMENT HAS BEEN FRAMED FOR T HE YEAR UNDER CONSIDERATION U/S 143(3) ON 29/12/2017. IT TRANSPIR ED THAT THE ASSESSEE ENTERED INTO DEVELOPMENT AGREEMENT WITH AN ENTITY N AMELY M/S AMI INFRA VIDE AGREEMENT DATED 23/01/2012 AND RECEIVED 9.66% AREA IN THE PROJECT WHICH INCLUDE CERTAIN FLATS AND SHOPS. THE DETAILS OF THE SAME HAVE ALREADY BEEN EXTRACTED IN PARA-4 OF THE ORDER. IN ALL, THE ASSESSEE RECEIVED 9 FLATS AND 5 SHOPS. OUT OF THE SAME, THE ASSESSEE SOLD 4 SHOPS AND 1 FLAT DURING THIS YEAR FOR AGGREGATE CON SIDERATION OF RS.67.20 LACS AND REFLECTED LONG-TERM CAPITAL GAINS OF RS.64 .11 LACS. HOWEVER, AFTER PERUSAL OF DOCUMENTS AND ASSESSEES SUBMISSIO NS, LD. AO CONCLUDED THAT THE AFORESAID GAINS WOULD BE ASSESSA BLE AS SHORT-TERM ITA NO.6246/MUM/2018 JAYANTILAL TOKERSHI DEDHIA ASSESSMENT YEAR: 2015-16 3 CAPITAL GAINS ONLY. THE LD. AO ALSO OPINED THAT THE SAID GAINS SHOULD HAVE BEEN OFFERED TO TAX IN AY 2012-13 I.E. IN THE YEAR IN WHICH RIGHTS OF DEVELOPMENT WERE TRANSFERRED TO THE BUILDER. THE ST AND OF LD.AO, UPON CONFIRMATION BY LD. CIT(A), IS IN FURTHER APPEAL BE FORE US. 4. BEFORE US, LD. AR HAS SUBMITTED THAT THE ASSESSE E HAS ACCEPTED THE ASSESSMENT ORDER FOR AY 2012-13 AND THEREFORE, THE ASSESSEE BE ALLOWED A RELIEF TO THE EXTENT OF THE VALUE OF FLAT S / SHOPS WHICH HAS ALREADY BEEN TAXED IN A.Y.2012-13 VIDE ASSESSMENT O RDER DATED 27/12/2018 PASSED UNDER SECTION 143(3) R.W.S. 147 O F THE INCOME TAX ACT. GOING BY THE SAME, WE DEEM IT FIT TO RESTORE T HE MATTER BACK TO THE FILE OF LD. AO FOR THE LIMITED PURPOSE OF RE-COMPUT ING THE GAINS EARNED BY THE ASSESSEE IN THE LIGHT OF REASSESSMENT PROCEEDIN GS FOR AY 2012-13 AND PROVIDE THE REQUISITE RELIEF, AS AVAILABLE TO T HE ASSESSEE. THE ASSESSEE IS DIRECTED TO PROVIDE THE NECESSARY DETAI LS AS WELL AS COMPUTATIONS. 5. THE APPEAL STAND PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 04 TH JANUARY, 2021. SD/- SD/- (AMARJIT SINGH) (MAN OJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 04/01/2021 S R.PS, JAISY VARGHESE ! / COPY OF THE ORDER FORWARDED TO : 1. !#% / THE APPELLANT 2. &'#% / THE RESPONDENT 3. - ( ! ) / THE CIT(A) 4. - / CIT CONCERNED 5. ./& 0 , ! 0 , / DR, ITAT, MUMBAI 6. /12 / GUARD FILE ITA NO.6246/MUM/2018 JAYANTILAL TOKERSHI DEDHIA ASSESSMENT YEAR: 2015-16 4 / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.