Income Tax Officer Ward-4(2)(3), Bangalore V. Late Susan Cherian, L/R Mr. Abraham Cherian, Bangalore

MA 20/BANG/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 9408 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-03-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 24-12-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V SRINIVASAN
• Keywords: Cost of acquisition; Tax effect
• Section: 254(2)

Judgement Text

M.A.NO.20/BANG/2021 LATE SUSAN CHERIAN L/R.ABRAHAM CHERIAN IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI B.R. BASKARAN, ACCOUNTANT MEMBE M.P.NO.20/BANG/2021 (IN ITA NO.3180/BANG/2018) ASSESSMENT YEAR : 2008 - 09 THE INCOME TAX OFFICER, WARD - 4(2)(3), BANGALORE. VS. LATE SUSAN CHERIAN, L/R.MR.ABRAHAM CHERIAN, NO.56, MUNNEKOLALA MARATHALLI, POST BENGALURU-560 037. PAN: BJHPS7835L APPELLANT / PETITIONER RESPONDENT /RESPONDENT . APPELLANT BY : MR.KANNAN NARAYANAN, JCIT RESPO NDENT BY : SHRI. V.SRINIVASAN, ADVOCATE . DATE OF HEARING : 12 .0 3 .2021 DATE OF PRONOUNCEMENT : 12.03.2021 O R D E R N.V.VASUDEVAN, VICE-PRESIDENT: THIS IS A MISCELLANEOUS PETITION FILED BY THE REVENUE U/S. 254(2) OF THE INCOME TAX ACT, 1961 (THE ACT) PRAYING FOR RECALLING THE ORDER DATED 28.08.2019 PASSED BY THE TRIBUNAL DISMISSING THE AFORESAID APPEAL OF THE REVENUE ON THE GROUND THAT THE TAX EFFECT INVOLVED IN THE REVENUES APPEAL WAS LESS THAN RS.50 LAKHS AND IN VIEW THE CBDT CIRCULAR NO. 17/2009, THE REVENUE CANNOT FILE APPEALS BEFORE THE TRIBUNAL WHERE THE TAX EFFECT INVOLVED IN THE APPEAL IS LESS THAN RS. 50 LAKHS. 2. IN THIS MP, THE REVENUE HAS CONTENDED THAT THE TAX EFFECT IN THE ABOVE APPEAL IS MORE THAN RS.50 LACS. AND THEREFORE THE TRIBUNAL OUGHT NOT TO HAVE DISMISSED THE APPEAL OF THE REVENUE AS NOT MAINTAINABLE IN VIEW OF THE TAX EFFECT BEING LESS THAN RS.50 LACS. MP 20/BANG/2021 LATE SUSAN CHERIAN, L/R.MR.ABHRAHAM CHERIAN 2 3. THE ISSUE THAT WAS RAISED BY THE REVENUE IN ITS APPEAL WAS AGAINST THE COMPUTATION OF LONG TERM CAPITAL GAIN(LTCG) ON SALE OF A PROPERTY UNDER A JOINT DEVELOPMENT AGREEMENT BY THE ASSESSEE. THE AO DETERMINED LTCG AT RS.2,38,93,444 AS AGAINST NIL LTCG DECLARED BY THE ASSESSEE, BY ADOPTING THE FULL VALUE OF CONSIDERATION RECEIVED ON TRANSFER AT RS.2,77,44,200 AND REDUCING COST OF ACQUISITION OF RS.38,50,756. THE TAX PAYABLE ON SUCH LTCG WAS DETERMINED BY THE AO AT RS.53,61,689/-. 3. THE ASSESSEE CHALLENGED THE ORDER OF THE AO AND THE CIT(A) IN THE APPEAL BY THE ASSESSEE HELD THAT HE FULL VALUE OF CONSIDERATION RECEIVED ON TRANSFER SHOULD BE ADOPTED AT RS.82,28,756.25PS. (VIDE PARAGRAPH-39 OF THE ORDER OF THE CIT(A). THE RELIEF GIVEN BY THE CIT(A) TO THE ASSESSEE WAS THUS A SUM OF RS.1,95,15,440/-. THE REVENUE PREFERRED APPEAL AGAINST THE ORDER OF CIT(A) BEFORE THE TRIBUNAL. THE TAX ON LTCG IS 20% AND THEREFORE THE TAX EFFECT IN THE REVENUES APPEAL WOULD BE LESS THAN RS.50 LACS. THE REVENUE IN THE MISCELLANEOUS APPLICATION HAS WRONGLY GIVEN CALCULATION TAX EFFECT AT 53,61,689 BY ADOPTING THE COMPUTATION OF LTCG AS GIVEN BY THE AO. 4. THE MP BY THE REVENUE IS THEREFORE DEVOID OF ANY MERIT AND IS THEREFORE DISMISSED. 5. IN THE RESULT, THE MP IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- BANGALORE, DATED: 12.03.2021. /NS/* (B. R. BASKARAN ) (N. V. VASUDEVAN) ACCOUNTANT MEMBER VICE PRESIDENT MP 20/BANG/2021 LATE SUSAN CHERIAN, L/R.MR.ABHRAHAM CHERIAN 3 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.