R.Balachandar, CHENNAI V. ITO, CHENNAI

MA 50/CHNY/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5566 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-04-2017
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 02-02-2017
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: K G RAGHUNATH
• Keywords: Sale consideration of property below Jantri Value; Cost of acquisition
• Section: 50C

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B BENCH, CHENNAI . , ' # ' $%&' BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI DUVVURU R.L. REDDY, JUDICIAL MEMBER MISCELLANEOUS PETITION NO.50/MDS/2017 IN I.T.A.NO.1019/MDS/2016 ( / ASSESSMENT YEAR :2011-12) MR. R.BALACHANDAR 20, A.S.COLONY MAIN ROAD, ROYAPURAM, CHENNAI-600 013. VS THE INCOME TAX OFFICER, BUSINESS WARD-X(2), CHENNAI-6. PAN: AIRPR8914K (APPLICANT) ( / RESPONDENT) APPLICANT BY : SHRI K.G. RAGHUNATH ADVOCATE /RESPONDENT BY : SHRI A.V. SREEKANTH, JCIT /DATE OF HEARING : 07.04.2017 /DATE OF PRONOUNCEMENT : 07.04.2017 / O R D E R PER A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER: THE MISCELLANEOUS PETITION IS FILED BY THE ASSESSEE PRAYING FOR EXPUNGING CERTAIN DIRECTIONS IN THE ORDER OF TH E TRIBUNAL PASSED IN ITA NO.1019/MDS/2016 DATED 16.09.2016. 2 MP NO.50/MDS/2017 2. AT THE OUTSET THE LD.AR SUBMITTED BEFORE US THAT THE GROUND RAISED BY THE ASSESSEE IN THE APPEAL WAS WITH RESPE CT TO INCLUSION OF THE LOAN OBTAINED AND DEPLOYED FOR THE PURPOSE O F CONSTRUCTION OF THE PROPERTY AS THE COST OF ACQUISITION AND ALSO REGARDING THE DENIAL OF INDEXATION ON THE SAME. HE FURTHER SUBMI TTED THAT THE TRIBUNAL HAD DECIDED THE ISSUE IN FAVOUR OF THE ASS ESSEE BY DIRECTING THE LD.AO TO INCLUDE THE LOAN OBTAINED AN D DEPLOYED FOR THE CONSTRUCTION OF THE BUILDING AND THE COST OF LA ND AS THE COST OF ACQUISITION OF THE ASSET AND FURTHER DIRECTED THE L D.AO TO GIVE THE BENEFIT OF INDEXATION IN ACCORDANCE WITH THE ACT. HOWEVER WHILE DOING SO THE TRIBUNAL HAD ALSO EXTENDED THE SENTENC E AS FOLLOWS:- AND AS PER THE PROVISIONS 50C OF THE ACT WHILE REW ORKING THE CAPITAL GAIN THE LD.AR FURTHER SUBMITTED BEFORE US THAT THIS E XTENDED PHRASE IN THE ORDER OF THE TRIBUNAL HAS CREATED CON FUSION IN THE MIND OF THE LD.AO WHILE REWORKING THE CAPITAL GAIN AND UNNECESSARY CLARIFICATIONS ARE SOUGHT FROM THE ASSE SSEE. THE LD. AR ARGUED BY STATING THAT THE ISSUE WITH RESPECT TO 50C OF THE ACT WAS NOT A MATTER IN THE APPEAL AND THE SAME MAY BE EXPUNGED FROM THE LAST SENTENCE OF THE ORDER OF THE TRIBUNAL . THE LD. DR 3 MP NO.50/MDS/2017 DID NOT EXPRESS ANY SERIOUS CONCERN WITH RESPECT TO THE PRAYER OF THE LD.AR. 3. AFTER HEARING BOTH SIDES, WE ARE IN AGREEMENT WI TH THE SUBMISSION OF THE LD.AR THAT THE ISSUE WITH RESPECT TO 50C WAS NOT AGITATED BEFORE THE TRIBUNAL AND THEREFORE THERE WA S NO REASON FOR US TO MENTION ABOUT THE SAME. SINCE THE LD. AR CLA IMS THAT MENTIONING THE PHRASE AND AS PER THE PROVISIONS 50C OF THE ACT WHILE REWORKING THE CAPITAL GAIN HAS CREATED CONFUSION IN THE MINDS OF THE LD.AO AND SINCE THE LD. DR HAS ALSO NO T EXPRESSED ANY SERIOUS OBJECTION FOR EXPUNGING THE SAME FROM T HE ORDER OF THE TRIBUNAL, WE HEREBY EXPUNGE THE SAME FROM THE ORDER OF THE TRIBUNAL. ACCORDINGLY FROM THIS DATE THE LAST BUT ONE SENTENCE OF PARA 7 OF THE ORDER OF THE TRIBUNAL DATED 16.09.201 6 IN ITA NO.1019/MDS/2016 VIZ., THEREFORE, WE HEREBY DIRECT THE LEARNED ASSESSING OFFICER TO TREAT THE COST OF CONSTRUCTION OF THE BUILDING AND COST OF THE LAND AS THE COST OF ACQUISITION AND ALSO GIV E THE BENEFIT OF INDEXATION IN ACCORDANCE WITH THE ACT AND AS PER TH E PROVISIONS 50C OF THE ACT WHILE REWORKING THE CAPITAL GAIN. SHALL BE READ AS THEREFORE, WE HEREBY DIRECT THE LEARNED ASSESSING OFFICER TO TREAT THE COST OF CONSTRUCTION OF THE BUILDING AND COST OF THE LAND AS THE COST OF ACQUISITION AND ALSO GIVE THE B ENEFIT OF 4 MP NO.50/MDS/2017 INDEXATION IN ACCORDANCE WITH THE ACT. IT IS ORDERED ACCORDINGLY. 4. IN THE RESULT, THE MISCELLANEOUS PETITION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 7 TH APRIL 2017 SD/- SD/- ( ' # ' $ %& ) (DUVVURU R.L REDDY) * /JUDICIAL MEMBER ( . ) (A. MOHAN ALANKAMONY) /ACCOUNTANT MEMBER /CHENNAI, /DATED 7 TH APRIL, 2017 JR. #$%& '(% /COPY TO: 1. APPLICANT 2. RESPONDENT 3. ) ( '&$ )/CIT(A) 4. ) /CIT 5. %+, - /DR 6. ,. $ /GF.