Sri Dharamchand Bafna , Bangalore V. The Income Tax Officer Ward-2(2)(1), Bangalore

MA 66/BANG/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9259 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-08-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 24-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R PREMI JT C IT BENGALURU
• Keywords: Sale consideration of property below Jantri Value; Gift; Benefit of exemption
• Section: 50C; 254(2); 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI B R BASKARAN , ACCOUNTANT MEMBER MP NO.66/BANG/2020 [IN IT A NO. 260/BAN G/2020] ASSESSMENT YEAR: 2013 - 14 SHRI DHARAMCHAND BAFNA, NO.14, 3 RD CROSS, N.S. IYENGAR STREET, KUMARA PARK WEST, BENGALURU 560 020. PAN: ADUPB 5891B VS. THE INCOME TAX OFFICER, WARD 2(2)(1), BANGALORE. APP L IC ANT RESPONDENT APP L IC ANT BY : SMT. SUMAN LUNKAR, CA RESPONDENT BY : SMT. R . PREMI, JT.C IT(DR)(ITAT ), BENGALURU. DATE OF HEARING : 14. 0 8 .2020 DATE OF PRONOUNCEMENT : 14 .0 8 .2020 O R D E R PER N.V. VASUDEVAN, VICE PRESIDENT THIS IS A MISCELLANEOUS PETITION [MP] FILED BY T HE ASSESSEE U/S. 254(2) OF THE INCOME-TAX ACT, 1961 [THE ACT] PRAYIN G THAT THE ORDER OF TRIBUNAL DATED 30.11.2019 SUFFERS FROM A MISTAKE AP PARENT ON THE FACE OF RECORD AND SHOULD BE RECTIFIED. MP NO.66/BANG/2020 PAGE 2 OF 4 2. THE ISSUE THAT AROSE FOR CONSIDERATION IN THE A FORESAID APPEAL WAS WITH REGARD TO COMPUTATION OF LONG TERM CAPITAL GAI N. THREE ASPECTS OF COMPUTATION OF LONG TERM CAPITAL GAIN WAS REQUIRED TO BE EXAMINED IN THE APPEAL VIZ.:- I) DENIAL OF EXEMPTION U/S. 54 OF THE ACT; II) ADOPTION OF GUIDELINE VALUE U/S. 50C OF THE ACT ; AND III) NOT GRANTING INDEXATION BENEFIT FROM THE YEAR IN WHICH PROPERTY WAS ACQUIRED BY THE PREVIOUS OWNER AS THE ASSESSEE GOT THE PROPERTY WAY OF GIFT. THE BENEFIT OF INDEXATION WAS GRANTED ONLY FROM THE YEAR IN WHICH THE ASSESSEE GOT THE PROPERTY WAY OF GIFT. 3. THE TRIBUNAL IN THE IMPUGNED ORDER DATED 30.12.2 019 ALLOWED THE BENEFIT OF EXEMPTION U/S. 54 OF THE ACT AND FURTHER OBSERVED IN THE ORDER THAT SINCE DEDUCTION U/S. 54 IS ALLOWED, THERE WOUL D BE NO LONG TERM CAPITAL GAIN THAT REMAINS FOR TAXATION AND THEREFORE THE OT HER TWO ISSUES REFERRED TO ABOVE ACADEMIC AND ARE NOT BEING ADJUDICATED. 4. IN THIS MP, THE ASSESSEE HAS POINTED OUT THAT EV EN AFTER ALLOWING DEDUCTION U/S. 54 OF THE ACT, THERE WOULD STILL BE LONG TERM CAPITAL GAIN THAT WOULD BE CHARGEABLE TO TAX AND THEREFORE ADJUDICATI ON OF THE OTHER TWO ISSUES WOULD ALSO BE VITAL. IT WAS SUBMITTED THAT THE ORDER OF TRIBUNAL SUFFERS FROM A MISTAKE APPARENT ON THE FACE OF RECO RD INASMUCH AS THE TRIBUNAL HAS PROCEEDED ON THE BASIS THAT CONSEQUENT TO ALLOWING DEDUCTION U/S. 54, THERE WOULD BE NO LONG TERM CAPITAL GAIN T HAT WOULD REMAIN FOR TAXATION. THE LD. COUNSEL FOR THE ASSESSEE REITERA TED THE PLEA OF THE ASSESSEE AS CONTAINED IN THE MP. THE FOLLOWING COM PUTATION OF LONG TERM CAPITAL GAIN AFTER ALLOWING DEDUCTION U/S. 54 OF TH E ACT WAS ALSO FILED ALONG WITH THE MP AND THE SAME READS AS FOLLOWS:- MP NO.66/BANG/2020 PAGE 3 OF 4 5. THE LD. COUNSEL FOR THE ASSESSEE, HOWEVER, FAIRL Y ADMITTED THAT THE SALE CONSIDERATION MENTIONED IN THE SALE DEED WAS M UCH HIGHER THAN THE VALUATION FOR THE PURPOSE OF STAMP DUTY BY THE REGI STERING AUTHORITY AND THEREFORE THE ISSUE WITH REGARD TO ADOPTING THE GUI DELINE VALUE U/S. 50C OF THE ACT NEED NOT BE ADJUDICATED. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. CO UNSEL FOR THE ASSESSEE AND ARE OF THE VIEW THAT THERE IS A MISTAK E APPARENT ON THE FACE OF RECORD INASMUCH AS EVEN AFTER ALLOWING DEDUCTION U/S 54 OF THE ACT, THERE WOULD STILL BE LONG TERM CAPITAL GAIN THAT WOULD BE CHARGEABLE TO TAX AND THEREFORE THE QUESTION OF PERIOD FROM WHICH INDEXAT ION BENEFIT SHOULD BE ALLOWED TO THE ASSESSEE OUGHT TO HAVE BEEN ADJUDICA TED. WE ACCORDINGLY RECALL THE ORDER OF THE TRIBUNAL DATED 30.12.2019 F OR THE LIMITED PURPOSE OF MP NO.66/BANG/2020 PAGE 4 OF 4 EXAMINING THE QUESTION WITH REFERENCE TO PERIOD FOR WHICH THE ASSESSEE SHOULD BE ALLOWED THE BENEFIT OF INDEXATION WHILE C OMPUTING THE LONG TERM CAPITAL GAIN. THE REGISTRY IS DIRECTED TO POST THE APPEAL FOR HEARING IN DUE COURSE WITH NOTICE TO THE PARTIES. 7. IN THE RESULT, THE MISCELLANEOUS PETITION BY THE ASSESSEE IS ALLOWED TO THE EXTENT INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS 14 TH DAY OF AUGUST, 2020. SD/- SD/- ( B R BASKARAN ) ( N V VASUDEVAN ) ACCOUNTANT MEMBER VICE PRESIDENT BANGALORE, DATED, THE 14 TH AUGUST, 2020. / DESAI S MURTHY / COPY TO: 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.