Income Tax Appellate Tribunal - Mumbai
Prajay Shah, Mumbai vs Department Of Income Tax on 5 October, 2009
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCH 'C' M UMBAI
BEFORE SHRI D M ANMOHAN, VP & SHRI R K P ANDA,AM
ITA No. 3351/M um/09
(Asst Year 2005-06 )
The Income Tax Officer Prajay Shah
Ward 21(3)(3), Mumbai vs Mumbai
PAN AAGPS5776H
(Appellant) (Respondent)
Appellant by: Shri S M Keshkamat (DR)
Respondent by: Shri Rahul Halcani (AR)
ORDER
PER D M ANMOHAN:
This appeal is filed at the instance of the Revenue. Following grounds were urged before us :
"i) On the facts and in the circumstances of the case and in law, the ld CIT(A) erred in holding that the sum of Rs. 17 lacs received by the assessee was in the nature of Long Term Capital Gains and in directing the AO to allow the assessee exemption/s 54EC of the Act by treating the transaction as capital gains.
ii) The ld CIT(A) has erred in deleting the addition of Rs.
80,000/- being the notional income on account of alternative accommodation provided by the developer.
iii) The ld CIT(A) has erred in deleting the addition of Rs. 6,56,000/- on account of cost of construction of the new shop by holding that the improved construction is also deployed of capital gain by the assessee."
2 At the time of hearing, learned Counsel, appearing on behalf of the assessee, placed before us a copy of the Order of the ITAT 'C' Bench, Mumbai in the case of Shri Paresh K. Bharmani (ITA. No. 3913/M/08 dated 5-10-2009) wherein on identical facts and circumstances, the Tribunal set aside the issue to the file of the AO by observing as under:
"In our opinion the computa tion of capita l gains so ma de by the a ssessee by considering tha t only a sum of Rs. 17.00 la khs, 2 ITA No. 3351/Mum/09 consti tu te s f ull value of considera tion, is erroneous. In fa ct everything received or to be received by the a ssessee in money or money worth, in lieu of tra nsf er of shop, is pa rt of the f ull va lue of considera tion, be it the va lue of new building, va lue of ca r pa rking facility a nd renta l value of the property provided by the De veloper to the a ssessee for the inte rregnum. The lea rned CIT(A) ha s erred in coming to the conclusion tha t "deemed ren t of Rs. 80,000/- will also be ta ken to be the expenditure f or ca rrying out regula r business by the appella nt". Ha ving held, a nd rightly so tha t capita l ga in wa s a ttra cted in this ca se, the question wa s to compute the va lue of the benefit received by the a ssessee in lieu of surrender of a ssessee's righ t in the properties. There wa s no question of allowing a ny deduction towa rds deemed expenditure incurred f or ca rrying a ny business by the a ssessee. His f urther view wa s tha t a ddition of Rs. 7,36,000/- towa rds cost of construc tion and Rs. 2.00 lakh a s va lue of ca r pa rking wa s not includible a t a ll a nd only the sum of Rs. 1,35,000/- wa s to be included is a pa rt of his mista ken approach in the ma tter. No doubt the se two a dditions per se ca nnot be included in the to ta l income of the a ssessee but the a mount received a nd the va lue of wha tever wa s a cquired by the a ssessee in lieu of the surrender of his rights in shops wa s to be considered a s `f ull va lue of considera tion received or a ccruing a s a result of tra nsf er of ca pita l a sse t'. Since both the a uthori ties below ha ve chosen to dea l with the issue in a ma nner, which is a bsolutely not supported by a ny sta tu to ry provision, we a re of the considered opinion tha t the order of the CIT(A ) ca nnot be upheld. The impugned order is, theref ore, set a side a nd the ma tter is restored to the f ile of the AO for computing the a mounts cha rgea ble to ta x under the hea d 'Ca pita l ga ins' a s per the provisions of the Act af ter allowing rea sona ble opportunity of hea ring to the a sse ssee. It i s f urther cla rified tha t if the a mount of Rs. 17.00 la khs is invested in the eligible bonds, the AO, af ter verif ica tion, will gra nt deduc tion u/s 54EC of the Act in the f resh computa tion of income on this count under the 'Ca pita l gains'
3. The ld DR fairly admitted that the facts are identical in the case of the assessee also.
3 ITA No. 3351/Mum/094. We have carefully considered the rival submissions. Consistent with the view taken by the Tribunal (supra), we set aside the matter to the file of the AO with a direction to compute the amounts chargeable to tax under the head 'capital gains' as per provisions of the Act, in light of the directions given by the Tribunal in the aforesaid case.
5. In the result, the appeal filed by the revenue is allowed for statistical purpose.
Order pronounced on the 06th day of April 2010.
Sd/- Sd/-
( R K P ANDA ) ( D M ANMOHAN )
Accountant Member Vice President
Place: Mumbai : Dated: 06th April, 2010
VBP/-
Copy forwarded to:
1 The Income Tax Officer, Ward 21(3)(3), Mumbai
2 Prajay Shah, 25 Vyas Vadi - Dadabhai Road, Vile Parle(W), Mumbai
PAN AAGPS5776H
3 CIT (A)-XXI, Mittal Court, 'B' Wing, R.Nos. 13 & 14, 3rd Floor,
Nariman Point, Mumbai-021.
4 CIT, City-21, Mumbai.
5 DR 'C' Bench
6. Guard File
/TRUE COPY/
BY ORDER
Assistant Registrar, ITAT, Mumbai
4 ITA No. 3351/Mum/09
Sl. No. Particulars Date Initial
1. Draft dictated on 06-04-2010 Sr. P.S.
2. Draft placed before the Member 06-04-2010 Sr. P.S.
3 Draft approved and sent to second 06-04-2010 V.P.
Member
4. Draft approved by Second Member 06-04-2010 A.M.
5. Draft received by Sr. P.S. Sr. P.S.
6. Kept for pronouncement Sr. P.S.
7. Sent to Bench Clerk Sr. P.S.
8. Date of dispatch of the Order