Income-Tax Officer, Ward-3(2)(1), Bangalore V. Shri Hanumanthiah, Bangalore

MA 133/BANG/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 8715 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-11-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 08-08-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V. SRINIVASAN
• Keywords: Capital Gains
• Section: 143(3); 54F; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES “C”, BANGALORE Before Shri George George K, JM & Shri B.R.Baskaran, AM MA No.133/Bang/2021 : Asst.Year 2010-2011 (Arising out of ITA No.206/Bang/2017) The Income Tax Officer Ward 3(2)(1) Bengaluru. v. Shri Hanumanthaiah No.997, Anjandri, 29 th Main Poornapragna, Layout BSK 6 th Stage Bengaluru – 560 061. PAN : AAPPH5596R. (Applicant) (Respondent) Applicant by : Smt.Priyadarshini Besaganni, JCIT-DR Respondent by : Sri.V.Srinivasan, Advocate Date of Hearing : 12.11.2021 Date of Pronouncement : 12.11.2021 O R D E R Per George George K, JM: The Revenue has filed this Miscellaneous Petition against the order of the ITAT in ITA No.206/Bang/2017 (order dated 29.12.2020) for the assessment year 2010-2011. 2. The Miscellaneous Petition reads as follows:- “It is submitted that in the case of the respondent assessee, an order in ITA No. 206/BNG/2017 dated 29.12.2020 for the A.Y. 2010-11 was passed by Honble ITAT. In this case assessment was reopened on the issue that the assessee alongwith his wife mt. Saraswathi as co-owner had entered into a Joint Development Agreement with M/s Rainbow Properties for development of flats. As per the agreement the possession of land was handed over and the land owners are to surrender 58% of undivided right and interest in the land in lieu of 42% of built up area. While concluding the assessment u/s 143(3) r.w.s.147, following the judgment of Hon'ble jurisdictional High Court in the case of T.K.Dayalu, the AO held that the date relevant for attracting capital gain would be the date on which possession was MA No.133/Bang/2021 Shri Hanumanthaiah. 2 handed over to the developer consequent to JDA and accordingly the assessee's share of land was brought to tax under long term capital gains amounting to Rs. 52,66,604/-. Aggrieved by the said disallowance, the assessee filed an appeal before the CIT(A) who had dismissed the appeal of the. assessee and upheld the order of the AO. Further, aggrieved, the assessee filed appeal with the ITAT and also raised additional ground that the assessee is entitled to deduction u/s 54F of the I.T.Act on the entire units of apartment received by the assessee in lieu of Development Agreement dated 10.12.2009. In this regard, the Hon'ble ITAT vide its order in ITA No. 206/BNG/2017 dated 29.12.2020 upheld the assessment order. However, as regards the additional ground of claim of deduction u/s 54F, the ITAT directed to consider the claim of deduction u/s 54F of the Act. It is seen that on this issue, The ITAT has admitted and adjudicated on the assessee's additional grounds of appeal for claim of deduction u/s 54F of the Act and has directed to consider the claim of deduction u/s 54F. ITAT has not given any finding as to the basis of allowability of claim. It is submitted that in the case of assessee's wife Smt. Saraswathi, the matter was restored back to the CIT (A) to decide about the claim of deduction u/s 54F. Considering the decision in the wife's case on similar issue and similar facts the !TAT has erred in directed the AO to consider the claim of deduction on u/s 54F. It is humbly submitted that the Hon'ble ITAT may consider remitting the matter to the file of CIT (A) to decide the claim of deduction u/s 54F of the Act as in the case of assessee's wife Smt. Saraswathi.” 3. From the Miscellaneous Petition, it is clear that the only prayer of the Revenue is to restore the claim of deduction u/s 54F of the I.T.Act to the files of the CIT(A) instead of the Assessing Officer. Admittedly, the claim of deduction u/s 54F of the I.T.Act is a new claim and there would be no purpose served by restoring the issue to the files of the CIT(A). A fresh claim necessarily has to be adjudicated by the Assessing Officer and we have taken a conscious decision in restoring the claim of deduction u/s 54F of the I.T.Act to the files of the MA No.133/Bang/2021 Shri Hanumanthaiah. 3 A.O. Therefore, there is no mistake apparent on record warranting our interference u/s 254(2) of the I.T.Act. It is ordered accordingly. 4. In the result, the Miscellaneous Application filed by the Revenue is dismissed. Order pronounced on this 12 th day of November, 2021. Sd/- (B.R.Baskaran) Sd/- (George George K) ACCOUNTANT MEMBER JUDICIAL MEMBER Bangalore; Dated : 12 th November, 2021. Devadas G* Copy to : 1. The Applicant. 2. The Respondent. 3. The CIT(A)-7, Bangalore. 4. The Pr.CIT-7, Bangalore. 5. The DR, ITAT, Bengaluru. 6. Guard File. Asst.Registrar/ITAT, Bangalore