J.V.Srikrishna, CHENNAI V. ITO, CHENNAI

ITA 996/CHNY/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6169 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 21-04-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B SAGADEVAN IRS
• Assessee Lawyers: PARPIA P K
• Keywords: Cost of acquisition; Corroborative evidences
• Section: 54

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B (SMC) BENCH : CHENNAI . , [BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT M EMBER ] ./I.T.A. NO. 996/MDS/2017 / ASSESSMENT YEAR : 2011-2012. J.V. SRIKRISHNA, OLD NO.9, NEW NO.11, SAMBASIVAM STREET, T. NAGAR, CHENNAI 600 017 [PAN AIIPR 1066M] VS. THE INCOME TAX OFFICER, NON CORPORATE WARD 18(2) CHENNAI. ( !' / APPELLANT) ( #$!' /RESPONDENT) / APPELLANT BY : MS. PARPIA P.K. CA /RESPONDENT BY : SHRI. B. SAGADEVAN, IRS, JCIT. /DATE OF HEARING : 14-09-2017 !' /DATE OF PRONOUNCEMENT : 18-09-2017 % / O R D E R IN THIS APPEAL FILED BY THE ASSESSEE WHICH IS DIR ECTED AGAINST AN ORDER DATED 31.01.2017 OF LD. COMMISSION ER OF INCOME TAX (APPEALS)-15, CHENNAI, IT HAS RAISED THE FOLLOW ING GROUNDS:- I. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS OPPOSED TO LAW AND THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ASSESSING OFFICER ARRIVED AT HIS FINDINGS WITHO UT GIVING SUFFICIENT OPPORTUNITIES TO THE APPELLANT TO PRODU CE SUPPORTING EVIDENCE IN SPITE OF THE APPELLANT REQUE STING FOR TIME ON THE GROUND OF THE ILLNESS OF HIS FATHER. TH E ITA NO.996/MDS/2017. :- 2 -: ASSESSING OFFICER REFUSED TO ACCEPT THE LETTER OF T HE APPELLANT ASKING FOR TIME. 3. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER THE APPELLANT PREFERRED AN APPEAL BEFORE THE LEARNED CI T APPEALS BUT, INADVERTENTLY, IN THE ADDRESS OF THE A PPELLANT MENTIONED IN FORM 35 AND THE APPELLANT COULD NOT PRESENT HIS CASE BEFORE THE LEARNED CIT APPEALS . THE LEARN ED CIT APPEALS HAS NOT GIVEN AN OPPORTUNITY TO THE APPELLA NT TO EXPLAIN THE FACTS OF THE CASE. 4. THE APPELLANT IS HUMBLY SEEKING AN OPPORTUNITY BEFO RE THE HON'BLE TRIBUNAL TO PRESENT AND EXPLAIN THE FACTS. THE APPELLANT HAS REGULARLY FILED RETURNS AND HAS PAID ALL TAXES DUE AND IT WOULD BE GROSS INJUSTICE TO THE APPELLAN T IF AN OPPORTUNITY IS NOT PROVIDED. S. THE LEARNED CIT HAS NOT APPRECIATED THE FACT THAT T HE ASSESSING OFFICER ERRED IN DISREGARDING THE FACT TH AT THE APPELLANT'S FATHER HAD TAKEN A LOAN FROM THE L.L.C AND ALSO A HAND LOAN FOR THE PURPOSE OF CONSTRUCTION OF THE PR OPERTY SETTLED AND THAT THE LOANS WERE USED ONLY FOR THE P URPOSE OF THE CONSTRUCTION. 6. THE LEARNED CIT APPEALS HAS REPEATED THE ORDER OF T HE ASSESSING OFFICER WITHOUT CONSIDERING ANY MATERIAL EVIDENCE. 7. FOR REASONS STATED IN THE PRECEDING GROUNDS, AND AN Y GROUNDS THAT MAY BE ADDUCED BEFORE OR DURING THE HE ARING, IT IS RESPECTFULLY PRAYED THAT THE HON'BLE TRIBUNAL MAY BE PLEASED TO SET ASIDE THE ORDER OF THE LEARNED CI.T. (APPEALS) AND THUS ALLOW THE APPELLANT AN OPPORTUNI TY TO PRESENT HIS CASE AND ALLOW THE APPEAL. 2. MAIN GRIEVANCE OF THE ASSESSEE IS THAT IT WAS NOT G IVEN PROPER OPPORTUNITY BY THE LD. COMMISSIONER OF INCOM E TAX (APPEALS) FOR PRESENTING HIS CASE. 3. ASSESSEE WHO IS A SALARIED EMPLOYEE OF M/S. COGNIZ ANT TECHNOLOGY SOLUTIONS INDIA P. LTD HAD SOLD AN IMMOV ABLE PROPERTY DURING THE RELEVANT PREVIOUS YEAR. LONG TERM CAPIT AL GAINS WAS ITA NO.996/MDS/2017. :- 3 -: WORKED OUT BY THE ASSESSEE AND FURNISHED TO THE LD. ASSESSING OFFICER AS UNDER:- 1/3 SHARE OF SALE CONSIDERATION OF RESIDENTIAL PROPERTY 70,00,000/- COST OF ACQUISITION LESS: INDEXED COST OF PURCHASE 11,07,519 COST OF IMPROVEMENT LESS: INDEXED COST FOR FY 93-94 INDEXED COST FOR FY 94-95 5,63,361/- 4,57,529/- -------------- 48,71,591/- INVESTED THE CAPITAL GAIN ON PURCHASE OF NEW PROPERTY PURCHASE PRICE 43,19,925/- CONSTRUCTION 6,63,488/- ------------ BALANCE NIL TAX ON CAPITAL GAIN NIL 4. ASSESSMENT WAS COMPLETED BY THE LD. ASSESSING OF FICER RECOMPUTING LONG TERM CAPITAL GAINS AS UNDER:- INCOME FROM LTCG SALE CONSIDERATION 70,00,000 LESS: INDEXED COST OF PURCHAS E (AS CLAIMED) LESS: INDEXED COST OF IMPROVEMENT 11,07,519 4,66,230 ------------- 15,73,749 ------------ ITA NO.996/MDS/2017. :- 4 -: LONG TERM CAPITAL GAINS LESS: PROPERTY PURCHASED ON 17.3.2011 54,26,251 43,19,925 --------------- INCOME FROM LONG TERM CAPITAL GAINS 11,06,326 INCOME ASSESSED 14,13,386 ACTUAL COST INDEXED COST COST OF INDEXATION CLAIMED BY THE ASSESSEE 10,80,000 30,62,669 ALLOWABLE 4,80,000 13,98,689 SHARE OF THE ASSESSEE 1361186/3 = 4,66,230/-. 5. AGGRIEVED, ASSESSEE MOVED IN APPEAL BEFORE TH E LD. COMMISSIONER OF INCOME TAX (APPEALS). THOUGH A NUM BER OF OPPORTUNITIES WERE GIVEN BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) NOBODY ATTENDED THE HEARING. HE CONFIRME D THE DISALLOWANCE OF EXPENDITURE OF G1,00,000/- CLAIMED BY THE ASSESSEE FOR CONSTRUCTION AND G5,00,000/- CLAIMED BY THE ASS ESSEE AS COST OF IMPROVEMENT. HE ALSO CONFIRMED RESTRICTION OF EXE MPTION CLAIMED BY THE ASSESSEE U/S. 54 OF THE ACT TO G43,19,925/-. REASON CITED WAS THAT THE UNAPPROPRIATED AMOUNT WERE NOT DEPOS ITED IN AN ACCOUNT UNDER CAPITAL GAIN ACCOUNT SCHEME. 6. NOW BEFORE ME, LD. AUTHORISED REPRESENTATIV E STATES THAT RESTRICTION OF THE CLAIM U/S. 54 OF THE ACT WAS UN FAIR SINCE ASSESSEE HAD UTILIZED THE FULL AMOUNT OF CONSIDERATION FOR C ONSTRUCTION OF THE ITA NO.996/MDS/2017. :- 5 -: NEW HOUSE PROPERTY. ACCORDING TO HIM, ASSESSEE WI LL BE ABLE TO PRODUCE EVIDENCE FOR CONSTRUCTION EXPENDITURE AND T HE IMPROVEMENT EXPENDITURE INCURRED, IF IT WAS GIVEN ONE MORE OPPORTUNITY. 7. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE STRONGLY SUPPORTING THE ORDERS OF THE AUTHORITIES BELOW SUBM ITTED THAT A NUMBER OF OPPORTUNITIES WERE GRANTED TO THE ASSESSE E BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) BUT ASSESSEE HAD NOT AVAILED OF SUCH OPPORTUNITIES. 8. I HAVE CONSIDERED THE RIVAL CONTENTIONS AN D PERUSED THE ORDERS OF THE AUTHORITIES BELOW. IT MAY BE TRUE THA T ASSESSEE HAD NOT ENTERED APPEARANCES DESPITE NOTICES ISSUED BY T HE LD. COMMISSIONER OF INCOME TAX (APPEALS). HOWEVER, NOW BEFORE ME, CONTENTION OF THE LD. AUTHORISED REPRESENTATIVE IS THAT ASSESSEE HAD EVIDENCE TO PROVE CONSTRUCTION DONE BY HIM AS W ELL AS COST INCURRED FOR IMPROVEMENTS. I ALSO FIND THAT ASSESS EE IS A SALARIED EMPLOYEE AND MAY NOT HAVE BEEN PROPERLY ADVISED WH EN THE MATTER WAS BEFORE THE LD. COMMISSIONER OF INCOME TA X (APPEALS). CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE , IN MY OPINION ASSESSEE CAN BE GIVEN ONE MORE OPPORTUNITY TO EXPLA IN HIS CASE BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) . I THEREFORE SET ASIDE THE ORDER OF THE LD. COMMISSIONER OF INCO ME TAX ITA NO.996/MDS/2017. :- 6 -: (APPEALS) AND REMIT THE APPEAL TO HIS FILE FOR CONS IDERATION AFRESH IN ACCORDANCE WITH LAW. ASSESSEE SHALL BE GIVEN MORE O PPORTUNITY TO PRESENT HIS CASE AND ASSESSEE IS DIRECTED TO CO-OPE RATE WITH THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON MONDAY, THE 18TH DAY OF SEPTEMB ER, 2017,AT CHENNAI. SD/- ( . ) (ABRAHAM P. GEORGE) / ACCOUNTANT MEMBER #$ / CHENNAI %& / DATED: 18TH SEPTEMBER, 2017 KV &' ()*) / COPY TO: 1 . / APPELLANT 3. +,- / CIT(A) 5. )./ 0 / DR 2. / RESPONDEN 4. + / CIT 6. /12 / GF