Coromandel Cables P Ltd., CHENNAI V. ACIT, CHENNAI

MA 42/CHNY/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4288 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-05-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 21-03-2016
• Court: TRIBUNAL
• Department Lawyers: K N DHANDA
• Assessee Lawyers: S SRIDHAR
• Keywords: Capital asset

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI , . ! ' , # '$ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER M.A. NOS. 41 & 42/MDS/2016 (IN ITA NOS. 1780 & 1781/MDS/2013) / ASSESSMENT YEARS : 2007-08 & 2008-09 M/S. COROMANDEL CABLES P. LTD. A-7, 6 TH CROSS STREET, INDIRA NAGAR, ADYAR, CHENNAI 600 020. PAN AAACC7190E ( /APPLICANT) V. THE ASSISTANT COMMISSIONER OF INCOME-TAX, COMPANY CIRCLE-I(3), CHENNAI. RESPONDENT) / APPLICANT BY : SHRI S. SRIDHAR, ADVOCATE / RESPONDENT BY : SHRI K.N.DHANDAPANI, JCIT / DATE OF HEARING : 06.05.2016 ! / DATE OF PRONOUNCEMENT : 20.05.2016 % / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER BY THESE MISCELLANEOUS APPLICATIONS, THE ASSESSEE SEEK RECTIFICATION OF CERTAIN ERRORS CREPT IN THE CONSOL IDATED ORDER OF - - MA 41 & 42/16 2 THE TRIBUNAL IN ITA NOS. 1779 TO 1788, 1944 TO 1949 /MDS/2013 DATED 4.3.2016. 2. THE LD. AR SUBMITTED THAT IN PARA 20 OF THE COM MON ORDER AT PAGE 73, THE COST OF IMPROVEMENT AT ` 68,99,590/- CONSIDERED AN-D REJECTED BY THE ASSESSING OFFICER I N THE COMPUTATION OF LONG TERM CAPITAL GAINS WAS WRONGLY TYPED AS ` 8,99,590/-. IT IS PRAYED FOR RECTIFICATION OF THE SAID MISTAKE IN PASSING THE RECTIFICATION/AMENDMENT ORDER FOR THE A SSESSMENT YEAR 2007-08 IN DISPOSING OFF THE APPEAL IN I.T.A.NO.1780/MDS/2013. 3. WE HAVE GONE THROUGH THE ORDER OF THE TRIBUNAL. ADMITTEDLY, THERE IS A MISTAKE IN MENTIONING THE FI GURE AS ` 8,99,590/- INSTEAD OF ` 68,99,590/-. IT IS A TYPOGRAPHICAL MISTAKE AND IT SHOULD BE READ AS ` 68,99,590/- IN PARA 20 AT PAGE 73. 4. FURTHER, THE LD. AR SUBMITTED THAT WHILE CONSIDE RING THE APPEAL IN I.T.A.NO.1781/MDS/2013 RELATING TO THE AS SESSMENT YEAR 2008-09, THE HONBLE BENCH IN PARAGRAPH 23 AT PAGE 75 HAD WRONGLY DIRECTED THE AO WHILE CONVERTING THE PR OTECTIVE - - MA 41 & 42/16 3 ASSESSMENT INTO SUBSTANTIVE ASSESSMENT FOR COMPUTIN G LONG TERM CAPITAL GAINS AS WELL AS SHORT TERM CAPITAL GA INS IN VIEW OF THEIR DECISION IN CANCELLING THE SUBSTANTIVE ASS ESSMENT FRAMED FOR THE ASSESSMENT YEAR 2006-07 IN I.T.A.NO.1779/MD S/2013. THE MENTIONING OF COMPUTATION OF SHORT TERM CAPITAL GAINS IN THE 6 TH LINE OF THE SAID PARA 23 MAY BE DELETED TO GIVE CL ARITY AND CONSISTENCY TO THE DECISION RENDERED FOR THE AY2006 -07 IN THE INTEREST OF JUSTICE. 5. WE HAVE HEARD BOTH THE PARTIES. IN OUR OPINION FOR THE ASSESSMENT YEAR 2008-09, THE ASSESSMENT IS TO BE TR EATED AS SUBSTANTIVE ASSESSMENT AND THE INCOME HAS TO BE COM PUTED AS SHORT TERM CAPITAL GAINS OR LONG TERM CAPITAL GAINS AS THE CASE MAY BE. THUS, THE AMENDED PARA 23 READS AS FOLLO WS: 23. SINCE, WE HAVE VACATED THE FINDING OF THE CIT(APPEALS), FOR THE ASST. YEAR 2006-07 BY OBSERVI NG THAT THERE IS NO TRANSFER U/S.2(47)(V) OF THE ACT, THE ASSESSMENT FOR THE ASST. YEAR 2008-09 IS TO BE TREA TED AS SUBSTANTIVE AS DISCUSSED IN EARLIER PARAGRAPH FO R THE ASST. YEAR 2007-08 AND THE INCOME HAS TO BE COMPUTED AS LONG TERM CAPITAL GAINS OR SHORT TERM CAPITAL GAINS, AS THE CASE MAY BE, AFTER GIVING AN - - MA 41 & 42/16 4 OPPORTUNITY OF HEARING TO THE ASSESSEE AND THE AO SHALL WORK OUT THE CAPITAL GAINS AFRESH. ACCORDING LY, THE LEVY OF INTEREST U/S.234A FOR THE ASST. YEAR 20 08-09 IS TO BE COMPUTED, WHICH IS MANDATORY IN NATURE. 6. ACCORDING TO THE LD. A.R., IN PARA 25 OF THE SAI D COMMON ORDER AT PAGE 77, THE ASSESSMENT YEAR WAS WRONGLY M ENTIONED AS 2009-10 INSTEAD OF 2008-09 AND FURTHER IN THE SA ID PARAGRAPH, THE DIRECTION WAS WRONGLY GIVEN TO INCLUDE THE COMP UTATION OF SHORT TERM CAPITAL GAINS FROM THE SALE OF FLATS WHI CH WAS NOT THE ORIGINAL COMPUTATION AS COMPUTED BY THE ASSESSING O FFICER PROTECTIVELY IN THE ASSESSMENT ORDER FOR THE ASSESS MENT YEAR 2008-09. 6.1 THEREFORE, THE LD. AR PRAYED FOR CORRECTING THE ASSESSMENT YEAR IN THE SAID PARAGRAPH AS ASSESSMENT YEAR 2008-09 AND ALSO DELETE THE FOLLOWING PORTION OF TH E SAID PARAGRAPH GIVING CLARITY AS WELL AS TO GIVE CONSIST ENCY TO THE DECISION RENDERED IN THE DISPOSAL OF THE APPEAL FOR THE ASSESSMENT YEAR 2008-09 IN I.T.A.NO. 1781/MDS/2013 FOR ASSESSMENT OF LTCG ON THE PROPORTIONATE LAND TRANSF ER : CORRESPONDING TO THE FLATS ALLOTTED TO THE ASSESSE ES SHARE AND SALE OF FLATS CONSTRUED THEREON TO BE - - MA 41 & 42/16 5 ASSESSED AS LONG TERM CAPITAL GAINS IN SALE OF LAND AND SHORT TERM CAPITAL GAINS IN SALE OF FLATS 7. IN OUR OPINION, THE ASSESSMENT YEAR IN PARA 25 WAS WRONGLY MENTIONED AS 2009-10 INSTEAD OF ASSESSMENT YEAR 2008-09 AND IT SHOULD BE READ AS ASSESSMENT YEAR 20 08-09 ONLY. AFTER THIS CORRECTION, PARA 25 TO BE READ AS FOLLOW S : 25. BEFORE US, THE LD. AR SUBMITTED THAT REPORT AS WELL AS DOCUMENT HAVE NO RELEVANCE WITH THE ASSESSMENT OF THE ASSESSEE. HOWEVER, THE ASSESSEE HAS NOT PRODUCED ANYTHING TO PROVE THE COST OF CONSTRUCTION. IT IS THE DUTY OF THE ASSESSEE TO P RODUCE NECESSARY EVIDENCE TO SHOW THAT THE ASSESSEE ACTUALLY INCURRED TOWARDS IMPROVEMENT OF CAPITAL ASSET. HOWEVER, THE ASSESSEE ASKED ONE MORE OPPORTUNITY TO SEE THE DOCUMENT COLLECTED BY THE A. O., WHICH WAS RELIED UPON BY HIM, AT THE BACK OF THE ASSESSEE. IN VIEW OF THIS, WE REMIT THIS ISSUE TO THE FILE OF THE AO FOR FRESH CONSIDERATION AND THE ASSESSEE IS DIRECTED TO PRODUCE NECESSARY EVIDENCE IN SUPPORT OF THE CLAIM OF THE ASSESSEE, AS THE AO USED THE REPOR T COLLECTED FROM THE COMMERCIAL DEPARTMENT, MAHARASHTRA VIZ. MAHAVAT WITHOUT PROVIDING THE SAME TO THE ASSESSEE. ACCORDINGLY, IN THE ASSESSMENT Y EAR 2008-09, THE INCOME HAS TO BE COMPUTED AS SHORT TER M - - MA 41 & 42/16 6 CAPITAL GAINS OR LONG TERM CAPITAL GAINS, AS THE CA SE MAY BE. 7.1 FURTHER, WE MAKE IT CLEAR THAT THERE IS NO CHAN GE IN FINAL RESULT OF THE APPEALS. 8. IN THE RESULT, THE MISC. APPLICATIONS ARE PARTLY ALLOWED. ORDER PRONOUNCED ON FRIDAY, THE 20 TH OF MAY, 2016 AT CHENNAI. SD/- SD/- ( ' # $ ) ( %&' ( ' ) )#*+,+-./0+1234+-51+*667+182 9:; /JUDICIAL MEMBER :;<==6/->+->?@0A@1 %9 /CHENNAI, B:& /DATED, THE 20 TH MAY, 2016. MPO* C:DEF GF /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. CC H 2 /CIT(A) 4. CC H /CIT 5. FIJ K /DR 6. JLM /GF.