Income Tax Officer, Kanpur V. Shri Ravindra Behari Srivastava, Lucknow

ITA 753/LKW/2014

• Counselvise Citation: 75323714 RSA 2014
• Duration Of Justice: 1 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 17-09-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 29-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P K KAPOOR
• Keywords: Capital asset
• Section: 54F; 2

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.753/LKW/2014 ASSESSMENT YEAR: 2008 09 ITO WARD 5 (4), KANPUR VS. SHRI RAVINDRA BEHARI SRIVASTAVA, 10/496, KHALASI LINE, KANPUR NEW ADDRESS OMAXE HEIGHT, TOWER NO. 6, FLAT NO. 1401, VIBHUTI KHAND, GOMTI NAGAR, LUCKNOW. PAN:ANEPS6116L (APPELLANT) (RESPONDENT) ASSESSEE BY SHRI P K KAPOOR, C. A. REVENUE BY SHRI RANJAN SRIVASTAVA, SR. DR DATE OF HEARING 17/09/2015 DATE OF PRONOUNCEMENT 29/10/2015 O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORD ER OF LEARNED CIT (A) I, KANPUR DATED 23.06.2014 FOR A.Y. 2008 09. 2. THE REVENUE HAS RAISED AS MANY AS FIVE GROUNDS B UT THE GRIEVANCE IS ONLY ONE THAT THE PROPERTY SOLD BY THE ASSESSEE WAS NOT A LONG TERM CAPITAL ASSET AND THEREFORE, THE GAIN IS NOT LONG TERM CAPITAL GAIN A ND AS A CONSEQUENCE, DEDUCTION U/S 54F IS NOT ALLOWABLE. 3. LEARNED DR OF THE REVENUE SUPPORTED THE ASSESSME NT ORDER. LEARNED AR OF THE ASSESSEE SUPPORTED THE ORDER OF CIT (A). HE ALS O SUBMITTED THAT ON PAGES 3 TO 7 OF THE PAPER BOOK IS ALLOTMENT LETTER FOR PURCHAS E OF FLAT IN QUESTION AND ON PAGES 8 TO 13 ARE EVIDENCES OF PAYMENTS AND ON PAGE S 14 TO 17 ARE EVIDENCES OF POSSESSION. HE POINTED OUT THAT AS PER THESE EVIDEN CES, FLAT WAS ACQUIRED ON 08.12.2004 AND SOLD ON 25.03.2008 AND HENCE, IT WAS A LONG TERM CAPITAL ASSET RESULTING INTO LONG TERM CAPITAL GAIN AND THEREFORE , THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 54F. 2 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE PAPER BOOK FILED BY THE LEARNED AR AND AVAILABLE ON RECORD. WE HAVE ALSO GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT AS PER PARA 4.3.1 O F THE ORDER OF LEARNED CIT (A), HE HAD REPRODUCED THE REMAND REPORT OF THE A.O. AND IN THE SAME, THE A.O. HAS ACCEPTED THAT THE FLAT WAS COMPLETELY CONSTRUCTED A ND READY FOR POSSESSION. HE HAS ALSO REPORTED THAT POSSESSION WAS GIVEN TO THE ASSESSEE ON 08.12.2004 AND IN THE POSSESSION LETTER DATED 08.12.2004, IT WAS SPEC IFIED THAT THE ASSESSEE IS RESPONSIBLE FOR PAYMENT OF MUNICIPAL TAX AND THE AS SESSEE IS IN FACT PAYING THE SAME FROM F.Y. 2005 06. HE HAS ALSO REPORTED THAT ENTIRE CONSIDERATION WAS PAID BY THE ASSESSEE BY 08.12.2004 AS PER SALE DEED EXEC UTED ON 04.10.2006. ON THE BASIS OF THESE ADMITTED FACTS, LEARNED CIT (A) HAS HELD THAT AS PER SECTION 2 (47) (V), THE FLAT IN QUESTION WAS ACQUIRED BY THE ASSES SEE ON 08.12.2004 AND THEREFORE, AT THE TIME OF SALE ON 25.03.2008, IT WA S A LONG TERM CAPITAL ASSET RESULTING INTO LONG TERM CAPITAL GAIN AND THEREFORE , DEDUCTION U/S 544F IS ALLOWABLE TO THE ASSESSEE BECAUSE THIS WAS THE ONLY OBJECTION OF THE A.O. FOR DISALLOWING DEDUCTION U/S 54F THAT GAIN IS NOT LONG TERM CAPITAL GAIN. IN VIEW OF ABOVE DISCUSSION, WE FIND NO INFIRMITY IN THE ORDER OF CIT (A) AND HENCE, WE DECLINE TO INTERFERE THEREIN. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMI SSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEM BER DATED:29/10/2015 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. REGISTRA R