TOPACK FIELD, MUMBAI v. ITO 10(2)(2), MUMBAI

ITA 1464/MUM/2010 | 2006-2007
Pronouncement Date: 28-11-2011 | Result: Dismissed

Appeal Details

RSA Number 146419914 RSA 2010
Assessee PAN AABCT2765P
Bench Mumbai
Appeal Number ITA 1464/MUM/2010
Duration Of Justice 1 year(s) 9 month(s) 4 day(s)
Appellant TOPACK FIELD, MUMBAI
Respondent ITO 10(2)(2), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 28-11-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted SMC
Tribunal Order Date 28-11-2011
Date Of Final Hearing 28-11-2011
Next Hearing Date 28-11-2011
Assessment Year 2006-2007
Appeal Filed On 23-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC MUMBAI BEFORE SHIRI RAJENDRA SINGH A.M. ITA NO. : 1464/MUM/2010 ASSESSMENT YEAR : 2006-07 M/S. TOPACK FIELD SERVICES PVT. LTD. 315 SWASTIK CHAMBERS SION TROMBAY ROAD CHEMBUR MUMBAI-400 071 PAN NO : AABCT 2765 P VS. ITO 10(2) (2) MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PRAKASH PANDIT RESPONDENT BY : SHRI P. C. MAURYA DATE OF HEARING : 28.11.2011 DATE OF PRONOUNCEMENT : 28.11.2011 ORDER PER RAJENDRA SINGH (AM) : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 11.12.2009 OF THE LD. CIT(A)-22 FOR THE ASSESSMENT YEAR 2006-07. THE ONLY DISPUTE RAISED BY THE ASSESSEE IN THIS APPEAL IS REGARDING APPLICABILITY OF PROVISIONS OF SECTION 50C WHILE CO MPUTING THE SHORT TERM CAPITAL GAIN U/S.50 OF THE I.T. ACT. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE DURING THE YEAR HAD SOLD OFFICE PREMISES OWNED BY IT FOR SUM OF `. 12 LAKHS. SINCE THE PREMISES HAD ITA NO :1464/MUM/2010 M/S. TOPACK FIELD SERVICES PVT. LTD. 2 BEEN USED FOR THE PURPOSE OF BUSINESS THE COMPANY COMPUTED THE SHORT TERM CAPITAL GAIN U/S.50 OF THE I.T. ACT ON THE BAS IS OF SALE PRICE OF `. 12 LAKHS. THE AO HOWEVER APPLIED THE PROVISIONS OF S ECTION 50C AND SUBSTITUTED THE STAMP DUTY VALUE OF `. 14 64 500/- IN PLACE OF THE ACTUAL SALE PRICE OF `. 12 LAKHS WHILE COMPUTING THE SHORT TERM CAPITAL GAI N OF `. 11 52 154/-. 3. IN APPEAL THE ASSESSEE SUBMITTED BEFORE THE LD. CIT(A) THAT NATURE OF INCOME FROM SALE OF DEPRECIABLE ASSET WAS BUSIN ESS AND ONLY BECAUSE OF DEEMING PROVISIONS OF SECTION 50 IT HAS TO BE A SSESSED AS SHORT TERM CAPITAL GAIN. THEREFORE IT WAS ARGUED THAT PROVIS IONS OF SECTION 50C WERE NOT APPLICABLE. CIT(A) HOWEVER DID NOT ACCEPT THE CONTENTION RAISED AND CONFIRMED THE ORDER OF THE AO IN ADOPTING THE STAMP DUTY VALUE AS SALE CONSIDERATION AGGRIEVED BY WHICH THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. I HAVE PERUSED THE RECORDS AND CONSIDERED THE MA TTER CAREFULLY. I FIND THAT THE ISSUE RAISED IN THIS APPEAL IS COVERE D BY THE DECISION OF SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF UNITED MARINES ACADEMY (130 ITD 113) IN WHICH IT HAS BEEN HELD THAT THE T WO DEEMING PROVISIONS OF SECTION 50 AND 50C OPERATE IN DIFFERENT FIELDS A ND THAT THERE IS NO CONFLICT BETWEEN THE TWO PROVISIONS. THE TRIBUNAL A LSO HELD THAT THERE WAS NO EXCLUSION OF ONE PROVISION FROM THE OPERATIO N OF OTHER DEEMING ITA NO :1464/MUM/2010 M/S. TOPACK FIELD SERVICES PVT. LTD. 3 PROVISION. IT WAS ACCORDINGLY HELD THAT THE PROVI SIONS OF SECTION 50C WOULD APPLY WHILE COMPUTING THE SHORT TERM CAPITAL GAIN U/S.50 OF THE I.T. ACT. RESPECTFULLY FOLLOWING THE DECISION OF T HE SPECIAL BENCH (SUPRA) WE SEE NO INFIRMITY IN THE ORDER OF THE CIT(A) IN H OLDING THAT FOR THE COMPUTATION OF SHORT TERM CAPITAL GAIN U/S.50 OF TH E I.T. ACT THE SALE PRICE HAS TO BE SUBSTITUTED BY THE STAMP DUTY VALUE . THE ORDER OF THE LD. CIT(A) IS ACCORDINGLY UPHELD. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DIS MISSED. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON TO DAY I.E. 28 TH NOVEMBER 2011. S D/ - ( RAJENDRA SINGH ) ACCOUNTANT MEMBER MUMBAI DT: 28/11/2011 COPY FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE C.I.T. 4. CIT (A) 5. THE DR SMC - BENCH ITAT MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI ROSHANI