Sri Mahendrasingh Ramsingh Jadav, Bengaluru V. Income tax Officer, Ward-5(3)(5), Bengaluru

MA 382/BANG/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7215 (ITAT-BANGALORE)
• Duration Of Justice: 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 17-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Assessee Lawyers: V K GURUNATHAN
• Keywords: Opportunity of being heard
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER A ND SHRI LALIET KUMAR, JUDICIAL MEMBER M.P. NO. 382/BANG/2018 (IN ITA NO. 32 / BANG/201 8 ) ASSESSMENT YEAR : 20 1 0 - 11 SHRI MAHENDRASINGH RAMSINGH JADAV, I-104-1, BRIGADE METROPOLIS, WHITEFIELD MAIN ROAD, BANGALORE 560 048. PAN: ACZPJ4415H VS. THE INCOME TAX OFFICER, WARD 5 (3) (5), BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SHRI V.K. GURUNATHAN, ADVOCATE REVENUE BY : DR. P.V. PRADEEP KUMAR, ADDL. CIT (DR) DATE OF HEARING : 11 . 01 .201 9 DATE OF PRONOUNCEMENT : 16 . 01 .201 9 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER; THIS M.P. IS FILED BY THE ASSESSEE IN WHICH IT IS C ONTENDED THAT AS PER PARA NO. 10 OF THE IMPUGNED TRIBUNAL ORDER, THE TRIBUNAL HAS DECIDED THE ISSUE ON THIS BASIS THAT VARIOUS JUDGEMENTS REFERRED TO B Y THE ASSESSEE ARE ALL DISTINGUISHABLE ON FACTS AS IN NONE OF THE JUDGEMEN TS, THE DATE OF ACQUISITION STARTS FROM THE DATE OF BOOKING A FLAT IN THE PROPOSED PROJECT. 2. HE SUBMITTED THAT AS PER THE JUDGEMENT OF HONBL E HIGH COURT OF PUNJAB & HARYANA RENDERED IN THE CASE OF VINOD KUMAR JAIN VS . CIT &ORS. AS REPORTED IN (2012) 344 ITR 501, COPY AVAILABLE ON P AGES 95 TO 100 OF PAPER BOOK FILED IN COURSE OF HEARING OF THE APPEAL, IT W AS HELD AS PER PARA 16 OF THIS JUDGEMENT THAT SINCE THE FLAT WAS ALLOTTED ON 27.02.1982 ON PAYMENT OF INSTALMENTS BY ISSUANCE OF AN ALLOTMENT LETTER AND THE ASSESSEE HAD BEEN MAKING PAYMENT IN TERMS THEREOF BUT THE SPECIFIC NU MBER OF THE FLAT WAS ALLOCATED TO THE ASSESSEE AND POSSESSION DELIVERED ON 15.05.1986 AND THE M.P. NO. 382/BANG/2018 (IN ITA NO. 32/BANG/2018) PAGE 2 OF 3 RIGHT OF THE ASSESSEE PRIOR TO 15.05.1986 WAS A RIG HT IN THE PROPERTY AND IN SUCH A SITUATION, IT CANNOT BE HELD THAT PRIOR TO T HE SAID DATE, THE ASSESSEE WAS NOT HOLDING THE FLAT. HE SUBMITTED THAT AT LEA ST THIS JUDGMENT OF HONBLE HIGH COURT OF PUNJAB & HARYANA IS HAVING SIMILAR FA CTS AND THEREFORE, THERE IS AN APPARENT MISTAKE IN THE TRIBUNAL ORDER BECAUS E THE TRIBUNAL HAS HELD THAT ALL THE JUDGEMENTS CITED BY LD. AR OF ASSESSEE ARE DISTINGUISHABLE ON FACTS WITHOUT GIVING ANY DETAIL OR REASON BASED ON WHICH, THIS WAS STATED THAT THE FACTS ARE DISTINGUISHABLE AND THEREFORE, T HIS TRIBUNAL ORDER SHOULD BE RECALLED FOR A FRESH DECISION BY WAY OF A SPEAKI NG AND REASONED ORDER. THE LD. DR OF REVENUE SUBMITTED THAT THE IMPUGNED T RIBUNAL ORDER MAY BE RECALLED FOR LIMITED PURPOSE FOR DECIDING THIS ASPE CT THAT WHAT IS THE HOLDING PERIOD OF THE ASSET IN QUESTION IN THE FACTS OF PRE SENT CASE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IN VI EW OF ABOVE FACTS, IT IS SEEN THAT THERE IS AN APPARENT MISTAKE IN THE TRIBUNAL O RDER BECAUSE IN PARA NO. 10 OF THE IMPUGNED TRIBUNAL ORDER, IT HAS BEEN SIMP LY STATED THAT VARIOUS JUDGEMENTS REFERRED TO BY THE ASSESSEE ARE ALL DIST INGUISHABLE ON FACTS WITHOUT ANY SPECIFIC REASONING AND BASIS AS TO HOW THESE JUDGEMENTS ARE DISTINGUISHABLE ON FACTS AND IN COURSE OF HEARING O F THE M.P., IT WAS THE SUBMISSION THAT AT LEAST IN THE JUDGMENT RENDERED I N THE CASE OF VINOD KUMAR JAIN VS. CIT &ORS. (SUPRA), THE FACTS WERE AT LEAST APPARENTLY SIMILAR AND HENCE, IN OUR CONSIDERED OPINION, THERE IS APPA RENT MISTAKE IN THE TRIBUNAL ORDER WHILE DECIDING THIS ISSUE IN RESPECT OF HOLDING PERIOD OF THE ASSET IN QUESTION ON SALE OF WHICH THE RESULTING CA PITAL GAIN WAS DECLARED BY THE ASSESSEE AS LONG TERM CAPITAL GAIN BUT WAS ASSE SSED BY THE AO AS SHORT TERM CAPITAL GAIN AND IN THE PROCESS, CLAIM O F DEDUCTION U/S 54 WAS ALSO DISALLOWED. HENCE, WE RECALL THIS TRIBUNAL OR DER FOR LIMITED PURPOSE OF DECIDING THIS ISSUE AFRESH IN RESPECT OF HOLDING PE RIOD OF ASSET IN QUESTION I.E. THE FLAT AT HIRANANDANI MEADOWS WHICH WAS SOLD BY THE ASSESSEE THROUGH REGISTERED SALE AGREEMENT DATED 29.09.2009 AND WHICH WAS PURCHASED BY THE ASSESSEE THROUGH REGISTERED PURCHA SE DEED DATED 06.03.2009 ALTHOUGH AS PER THE ASSESSEE, THE SAID F LAT WAS ALLOTTED ON M.P. NO. 382/BANG/2018 (IN ITA NO. 32/BANG/2018) PAGE 3 OF 3 22.02.2006 AND FULL PAYMENT WAS ALSO MADE AND THERE FORE, THE ALLOTMENT DATE HAS TO BE TAKEN AS DATE OF ACQUISITION. IN OU R CONSIDERED OPINION, THE APPARENT MISTAKE IS THIS THAT IT WAS HELD BY THE TR IBUNAL THAT FACTS ARE DISTINGUISHABLE WITHOUT INDICATING ANY BASIS FOR TH AT AND IT IS SEEN THAT THE FACTS ARE AT LEAST SIMILAR ALTHOUGH NOT IDENTICAL I N THIS JUDGMENT OF HONBLE HIGH COURT OF PUNJAB & HARYANA RENDERED IN THE CASE OF VINOD KUMAR JAIN VS. CIT &ORS. (SUPRA). WE WANT TO MAKE IT CLEAR TH AT THIS TRIBUNAL ORDER IS BEING RECALLED FOR THIS LIMITED PURPOSE OF DECIDING THE NATURE OF CAPITAL GAIN ONLY WHETHER THE SAME IS SHORT TERM CAPITAL GAIN OR LONG TERM CAPITAL GAINS IN THE FACTS OF PRESENT CASE AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH SIDES. 4. IN THE RESULT, THE M.P. FILED BY THE ASSESSEE ST ANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (LALIET KUMAR) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 16 TH JANUARY, 2019. /MS/ COPY TO: 1. APP ELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.