Asstt. Commissioner of Income Tax, Lucknow V. Alok Awasthi, Lucknow

ITA 711/LKW/2014

• Counselvise Citation: 71123714 RSA 2014
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 18-12-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 08-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C P SINGH
• Assessee Lawyers: SRI
• Keywords: Capital asset; Cost of acquisition
• Section: 54F; 54

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO. 71 1 /LKW/201 4 ASSESSMENT YEAR:20 09 - 1 0 A.C. I.T. , RANGE - V , LUCKNOW . VS. S RI ALOK AWASTHI , 13/6 A, G. G. ENCLAVE , MALL AVENUE, LUCKNOW - 226018 . PAN:A DNPA7103J (APPELLANT) (RESPONDENT) APPELLANT BY SHRI C. P. SINGH , D.R. RESPONDENT BY SRI PANKAJ BHARGAV , C.A. DATE OF HEARING 1 8 / 1 2/2014 DATE OF PRONOUNCEMENT 1 6 /01 /201 5 O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUE S APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A), II LUCKNOW DATED 3 0 / 0 5 /201 4 FOR ASSESSMENT YEAR 20 09 - 1 0 . 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1 . THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) LUCKNOW HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS. 23,75,000/ - MADE ON ACCOUNT OF INCOME FROM OTHER SOURCES IGNORING THE FACT THAT NO TRANSFER OF LAND OR TRANSFER OF OWNERS HIP IN LAND TOOK PLACE. THE ASSESSEE HAS GRANTED VERY LIMITED RIGHTS OF CONSTRUCTION OF BUILDING AND SUBSEQUENT SALE OR LEASE . 2 . THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) LUCKNOW HAS ERRED IN LAW AND ON FACTS OF THE CASE IN ALLOWING THE CLAIM OF EXEMPTION U/S 54F OF THE INCOME TAX ACT, 1961 WITHOUT APPRECIATING THE FACT THAT SINCE NO TRANSFER OF LONG TERM CAPITAL ASSET TOOK PLACE THEREFORE THE CLAIM OF EXEMPTION U/S 54F DOES NOT ARISE . 3 . THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY ONE OR MOR E OF THE GROUND S OF APPEAL, AS STATED ABOVE, AS AND WHEN NEED TO DO SO ARISES WITH THE PERMISSION OF THE COURT . 3. LEARNED DR OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER . LEARNED AR OF THE ASSESSEE SUPPORTED THE ORDER OF LEARNED CIT (A). 4 . WE HAVE CONS IDERED THE RIVAL SUBMISSIONS AND THE MATERIALS ON RECORD AND THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT IT IS NOTED BY THE A.O. IN THE ASSESSMENT ORDER THAT THE ASSESSEE HAS SHOWN LONG TERM CAPITAL GAIN OF 2 RS. 16,79,488/ - BY SHOWING SALE CONSIDERATION AT RS. 23,75,000/ - AND INDEXED COST OF ACQUISITION OF LAND AT RS. 695,511/ - . IN THIS REGARD, THE A.O. NOTED THAT THE LAND ON WHICH THE PROPOSED THREE STORIED BUILDING IS TO BE CONSTRUCTED BELONGED TO THE ASSESS EE. HE ALSO NOTED THAT AS PER HIM, RIGHT IN LAND HAS NOT BEEN TRANSFERRED. ON THIS BASIS , HE CONCLUDED THAT THERE IS NO CAPITAL GAIN AND THIS RECEIPT OF RS. 23,75,000/ - IS TAXABLE AS INCOME FROM OTHER SOURCES. THIS ISSUE IS DECIDED BY LEARNED CIT (A) IN F AVOUR OF THE ASSESSEE ON THIS BASIS THAT THE RIGHT TO CONSTRUCT BEING FSI ON THE LAND OWNED BY THE ASSESSEE WAS ONE OF THE VALUABLE RIGHTS EMBEDDED IN THE BUNDLE OF RIGHTS ARISING OUT OF OWNERSHIP OF CAPITAL ASSET BEING LAND OWNED BY THE ASSESSEE. HE CONCL UDED THAT THE TRANSACTION IN QUESTION REPRESENTS TRANSFER OF CAPITAL ASSET BEING TRANSFER OF VALUABLE RIGHT TO CONSTRUCT ON THE LAND OWNED BY THE ASSESSEE. HE DIRECTED THE A.O. TO TAX THE INCOME AS LONG TERM CAPITAL GAIN AFTER ALLOWING DEDUCTION OF INDEXED COST AS CLAIMED BY THE ASSESSEE AND TO ALLOW DEDUCTION U/S 54 F ALSO ALONG WITH SET OFF OF SHORT TERM CAPITAL LOSS OF RS. 275,305.51. CONSIDERING THE FACTS OF THE PRESENT CASE IN ITS ENTIRETY, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LEARNED CIT (A) O N ANY ISSUE. WE, THEREFORE, DECLINE TO INTERFERE. 5 . IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED . (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KU MAR YADAV) ( A. K. GARODIA ) JUDI CIAL MEMBER ACCOUNTANT MEMBER DATED: 1 6 /0 1 /201 5 . *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR