Basanti Das, Bhubaneswar V. ITO, Ward-2(4), Bhubaneswar

ITA 93/CTK/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3042 (ITAT-CUTTACK)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 27-08-2018
• Assessment Year: 2013-2014
• Appeal Filed On: 19-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: D PARIDAC PARIDA
• Keywords: Capital asset

Judgement Text

P A G E 1 | 5 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 93 /CTK/201 8 ASSESSMENT YEAR : 201 3 - 2014 SMT. BASANTI DAS, PLOT NO.8( P ), ACHARYA VIHAR, BHUBANESWAR. VS. ITO, WARD 2(4), BHUBANESWAR. PAN/GIR NO. AEOPD 6050 R (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SRI D.PARIDA/C.PARIDA, AR REVENUE BY : SHRI SU BH ENDU DATTA , DR DATE OF HEARING : 2 7 /0 8 / 2018 DATE OF PRONOUNCEMENT : 28 /0 8 / 2018 O R D E R PER N.S.SAINI, AM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - 1, BHUBANESWAR DATED 2 5.1.2018 FOR THE ASSESSMENT YEAR 2013 - 2014. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THAT THE ORDER PASSED BY THE LEARNED CIT(A) IS ARBITRARY, EXCESSIVE, CONTRARY TO FACTS AND BAD IN LAW. ITA NO.93/CTK/2018 ASSESSMENT YEAR : 2013 - 2014 P A G E 2 | 5 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFFICER HAS GROSSLY ERRED IN MAKING THE ADDITION OF RS. 11,68,146 ON PRESUMPTION AS SHORT TERM CAPITAL GAIN FOR THE ASSESSMENT YEAR 2013 - 14 WITHOUT CONSIDERING THE FACTS AND DETAILS/DOCUMENTS PROVIDED DURING THE ASSESSMENT PROCEEDINGS THAT THE SAID CAPITAL GAIN IS TAXABLE DURING THE A.Y.2014 - 15 AND THE APPELLANT HAS DULY OFFERED FOR TAXATION THE SAME IN A.Y.2014 - 15 TO WHICH THE LD. CIT(APPEALS) - 1 HAS WRONGLY CONFIRMED THE SAME ADDITION AND WITHOUT CONSIDERING THE SUBMISSIONS PROVIDED BY THE APPELLANT. 3. THAT THE OTHER GROUNDS IF ANY SHALL BE URGED AT THE TIME OF HEARING. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSEE TRANSFERRED ITS LAND TO DIAMOND CONSTRUCTION & DEVELOPERS FOR A CONSIDERATION OF RS.30,90,176/ - . IT IS NOT IN DISPUTE THAT THE ASSESSEE OFFERED THE CAPITAL GAINS ARISING OUT OF ABOVE TRANSFER IN THE RETURN OF INCOME FILED FOR THE ASSESSMENT YEAR 2014 - 15 AND PAID TAX THEREON. ACCORDING TO THE ASSESSING OFFICER, THE LAND IN QUESTION WAS TRANSFER RED IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2013 - 14 AND, THEREFORE, CAPITAL GAINS WAS ASSESSABLE IN THE ASSESSMENT YEAR 2013 - 14. ACCORDINGLY, THE ASSESSING OFFICER LEVIED THE TAX ON CAPITAL GAINS IN THE ASSESSMENT YEAR 2013 - 14. ABOVE ACTION OF THE ASSESSING OFFICER IS BASED ON ITS OBSERVATION THAT M/S. DIAMOND CONSTRUCTION ITA NO.93/CTK/2018 ASSESSMENT YEAR : 2013 - 2014 P A G E 3 | 5 & DEVELOPERS SOLD OUT ALL THE FLATS EXCEPT ONE FLAT THIS YEAR WHICH WERE BEING CONSTRUCTED ON THE LAND OF THE ASSESSEE. 4. ON THE OTHER HAND, THE CONTENTION OF THE ASSESSEE IS THAT THE FIRST INSTALMENT OF RS.10 LAKHS OUT OF AGGREGATE SALE CONSIDERATION OF RS.30,90,176/ - WAS RECEIVED IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2014 - 15 AND REMAINING PAYMENTS WERE RECEIVED IN THE YEAR SUBSEQUENT TO THE ASSESSMENT YEAR 2014 - 15 AND, THEREF ORE, THE ASSESSEE OFFERED THE CAPITAL GAINS TO TAX IN THE ASSESSMENT YEAR 2014 - 15. HE ALSO ARGUED THAT THE SAID RETURN FOR ASSESSMENT YEAR 2014 - 15 WAS ACCEPTED BY THE DEPARTMENT AND, THEREFORE, THE TAX ON THE SAID INCOME CANNOT BE LEVIED IN ASSESSMENT YE AR 2013 - 14. 5. LD D.R. COULD NOT CONTROVERT THE SUBMISSION OF THE ASSESSEE AND COULD NOT PRODUCE ANY MATERIAL TO SHOW THAT THAT THE TAX WHICH WAS LEVIED IN THE ASSESSMENT YEAR 2014 - 15 WAS FOUND ERRONEOUS BY THE DEPARTMENT AND, THEREFORE, THE DEPARTMENT REF UNDED THE TAX OF THAT YEAR BACK TO THE ASSESSEE. 6. WE FIND THAT AS PER THE PROVISIONS OF SECTION 45 OF THE ACT, CAPITAL GAINS TAX CAN BE LEVIED ONLY IN THE YEAR IN WHICH CAPITAL ASSET IS TRANSFERRED BY THE ASSESSEE. THUS, THE CONTENTION OF THE ASSESSEE T HAT CAPITAL GAIN IS TO BE CHARGED IN THE YEAR IN WHICH ITA NO.93/CTK/2018 ASSESSMENT YEAR : 2013 - 2014 P A G E 4 | 5 FIRST INSTALMENT OF SALE CONSIDERATION HAS BEEN RECEIVED BY THE ASSESSEE CANNOT BE ACCEPTED. 7. WE FIND THAT THE DEPARTMENT HAS ALSO BROUGHT NO MATERIAL BEFORE US TO SHOW THAT THE ASSESSEE ACTUALLY TRA NSFERRED THE LAND IN QUESTION DURING THE YEAR UNDER CONSIDERATION. AT THE SAME TIME, WE ARE OF THE OPINION THAT DOUBLE TAXATION OF THE VERY SAME INCOME IN TWO ASSESSMENT YEARS CANNOT BE JUSTIFIED ON ANY GROUND. 8. IN THE CIRCUMSTANCES, IN OUR CONSIDERED V IEW, IT SHALL BE IN THE INTEREST OF JUSTICE TO REFER THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION AFRESH IN THE LIGHT OF DISCUSSION MADE HEREIN ABOVE. 9. BEFORE PARTING, WE WOULD LIKE TO OBSERVE THAT IF IT IS FOUND BY THE ASSESSIN G OFFICER THAT ACTUAL TRANSFER OF LAND IN QUESTION TOOK PLACE IN THE ASSESSMENT YEAR 2013 - 14 AND, THEREFORE, CAPITAL GAINS IS ASSESSABLE IN THE ASSESSMENT YE A R 2013 - 14 AND ON ASSESSMENT OF THE ASSESSMENT YEAR 2014 - 15, THE VERY TRANSFER OF LAND HAS BEEN WRONGLY ASSESSED TO TAX THEN NECESSARY RECTIFICATORY ORDER SHOULD BE PASSED BY HIM TO MEET THE ENDS OF JUSTICE. ITA NO.93/CTK/2018 ASSESSMENT YEAR : 2013 - 2014 P A G E 5 | 5 10. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 28 /0 8 /2018. S D/ - SD/ - ( PAVAN KUMAR GADALE) ( N.S SAINI) JUDICIALMEMBER A CCOUNTANT MEMBER CUTTACK; DATED 28 /0 8 /2018 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER SR. PVT. SECRETARY, ITAT, CUTTACK 1. THE APPELLANT : SMT. BASANTI DAS, PLOT NO.8(P), ACHARYA VIHAR, BHUBANESWAR 2. THE RESPONDENT. ITO, WARD 2(4), BHUBANESWAR 3. THE CIT(A) - 1, BHUBANESWAR 4. PR.CIT - 1, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//