DARSHAN R MEHTA, MUMBAI V. INCOME TAX OFFICER WARD 17 (3) (1), MUMBAI

MA 880/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7093 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-08-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 08-12-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T A KHON
• Assessee Lawyers: N M PORWAL
• Keywords: Sale consideration of property below Jantri Value; Business income; Cost of acquisition
• Section: 50C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , AM M .A. NO. 880/MUM/2017 (ARISING OUT OF ITA NO. 4465/MUM/2015) ( ASSESSMENT YEAR: 2011 - 12 ) SHRI DARSHAN R. MEHTA 12, MURLI MAHAL, II FLOOR, 420, BHAVDAJI CROSS ROAD, KIND CIRCLE, MATUNGA, MUMBAI - 400 019 VS. THE INCOME TAX OFFICER WARD 17(3)(1), MUMBAI PAN/GIR NO. AADPM 3310 J ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI N. M. PORWAL RESPONDENT BY : SHRI T. A. KHON DATE OF HEARING : 18.05.2018 DATE OF PRONOUNCEMENT : 02.08 .2018 O R D E R PER S HAMIM YAHYA, A. M.: THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THIS TRIBUNAL IN ITA NO. 4465/MUM/2015 FOR ASSESSMENT YEAR 2011 - 12 VIDE ORDER DATED 04.07.2017. 2. IN TH IS MISCELLANEOUS APPLICATION THE ASSESSEE HAS SUBMITTED THAT FOLLOWING ADDITIONAL GROUND WAS RAISED WHICH WAS NOT CONSIDERED BY THE ITAT IN ITS ORDER: '1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN /AW, IF IS CLAIMED THAT TRANSACTION OF S ALE OF FLAT AT 'ANMOL PRIDE BUILDING' WITHIN TWENTY DAYS FROM THE DATE OF PURCHASE WAS NOT AN INVESTMENT BUT AN ADVENTURE IN THE NATURE OF TRADE ASSESSABLE AS BUSINESS INCOME AND, THEREFORE, NOT LIABLE TO CAPITAL - GAINS TAX AND PROVISIONS OF SECTION 50C OF THE INCOME - TAX ACT, 2 M A NO. 880/MUM/2017 SHRI DARSHAN R. MEHTA THE APPELLANT CRAVES LEAVE TO ADD, TO AMEND, ALTER OR VARY THE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 3. UPON CAREFUL CONSIDERATION AND HEARING BOTH THE COUNSEL I AGREE WITH THE LD. COUNSEL OF THE ASSE SSEE THAT ITS ADDITIONAL GROUND WAS NOT CONSIDERED BY THE ITAT. 4. THE ASSESSEE HAS FURTHER SUBMITTED THAT GROUND NO. 4 RAISED BEFORE THE ITAT HAVE NOT BEEN ADJUDICATED. IN THIS REGARD, IT IS NOTED THAT THE ISSUE RAISED RELATE D TO THE COMPUTATION OF CAPI TAL GAIN UPON APPLICATION OF PROVISION OF SECTION 50C OF THE ACT. 5. IN GROUND NO. 4, THE ASSESSEE HAS RAISED THE FOLLOWING GROUND: 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN REJE CTING CLAIM OF COST OF ACQUISITION OF PROPERTY AT DEV DARSHAN IN RESPECTING OF FOLLOWING PAYMENTS: SUB STATION CHARGES 100000/ - CAR PARK PAYMENTS 100000/ - SOCIETY CHARGES 15000/ - 6. I FIND THAT THE ITAT HAS REMITTED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER TO SEN D THE MATTER TO VALUATION CELL AND THEREAFTER DECIDE AS PER LAW. IN THIS VIEW OF THE MATTER, IN MY CONSIDERED OPINION, THERE WAS NO OCCASION FOR THE TRIBUNAL TO ADJUDICATE THIS ISSUE AS THE ADJUDICATION AS PER LAW PURSUANT TO REFERENCE TO VAL UATION CELL HAS ALREADY BEEN REMITTED TO THE FILE OF THE ASSESSING OFFICER. ACCORDINGLY, THIS ISSUE RAISED BY THE ASSESSEE IN THE MISCELLANEOUS APPLICATION IS DISMISSED. 7. IN THE RESULT, THE ORDER OF THE TRIBUNAL IS RECALLED ONLY FOR THE LIMITED PURPOSE OF ADJUDICATION OF THE ADDITIONAL GROUND AS REFERRED HEREINABOVE WHICH WAS NOT ADJUDICATED IN THE AFORE - SAID ORDER. 3 M A NO. 880/MUM/2017 SHRI DARSHAN R. MEHTA 8. IN THE RESULT, THIS MISCELLANEOUS PETITION STANDS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 02.08.2018 SD/ - (S HAMIM YAHYA) A CCOUNTANT MEMBER MUMBAI ; DATED : 02.08.2018 ROSHANI , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD F ILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI