P.M.Mukundan, CHENNAI v. ITO, CHENNAI

MA 170/CHNY/2016 | 2011-2012
Pronouncement Date: 28-09-2016

Appeal Details

RSA Number 17021724 RSA 2016
Assessee PAN AEWPM9503Q
Bench Chennai
Appeal Number MA 170/CHNY/2016
Duration Of Justice 2 month(s) 20 day(s)
Appellant P.M.Mukundan, CHENNAI
Respondent ITO, CHENNAI
Appeal Type Miscellaneous Application
Pronouncement Date 28-09-2016
Appeal Filed By Assessee
Bench Allotted B
Date Of Final Hearing 23-09-2016
Next Hearing Date 23-09-2016
Assessment Year 2011-2012
Appeal Filed On 08-07-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI ! ' ! # . $% & '( BEFORE SHRI CHANDRA POOJARI ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY JUDICIAL MEMBER M.P.NO.170/MDS./2016 ( I.T.A.NO.1240 /MDS./2015 ASSESSMENT YEAR :2011-12) SHRI P.M.MUKUNDAN 85A DHANASHREE APARTMENTS KAMDAR NAGAR 3 RD STREET NUNGAMBAKKAM CHENNAI 600 034. VS. THE INCOME TAX OFFICER BUSINESS WARD-XV(4) CHENNAI. PAN AEWPM 9503 Q ( 67 / APPELLANT ) ( 8967 / RESPONDENT ) / APPELLANT BY : MR.S.SRIDHAR ADVOCATE /RESPONDENT BY : MRS.R.ILAVARASI JCIT D.R / DATE OF HEARING : 23 - 09 - 201 6 / DATE OF PRONOUNCEMENT : 28 - 09 - 2016 : / O R D E R PER CHANDRA POOJARI ACCOUNTANT MEMBER THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSE SSEE PRAYING FOR RECTIFICATION OF THE EARLIER ORDER OF T HE TRIBUNAL IN ITA NO.1240/MDS./2015 DATED 22.01.2016 FOR THE ASSESSME NT YEAR 2011-12. MA NO.170/16 :- 2 -: 2. THE LD.A.R SUBMITTED THAT THE TRIBUNAL HAD IN I TS ORDER DATED 22.01.2016 CONCLUDED/DECIDED ON THE ISSUE REL ATING TO THE CLAIM OF COST OF IMPROVEMENT IN THE COMPUTATION OF LONG TERM CAPITAL GAINS ARISING OR ACCRUING AS A RESULT OF TH E SALE OF PROPERTY/CAPITAL ASSET AS FOLLOWS:- 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. BEFORE US THE LD.A.R PLEADED THAT THE DET AILS RELATING TO THE IMPROVEMENTS WAS MENTIONED IN THE LETTERS DA TED 27.12.2013 & 09.01.2014 FILED BEFORE THE LD. ASSESS ING OFFICER. IN LIEU OF THE PASSAGE OF 30 LONG YEARS IT IS NOT POSSIBLE TO PRODUCE SUPPORTING EVIDENCE AND THE CLAIM OF THE AS SESSEE HAS TO BE ALLOWED. BUT IN OUR OPINION WHEN THE AS SESSEE CLAIMS ANY COST OF IMPROVEMENT IT IS PRIMARY DUTY TO PRODUCE EVIDENCE FOR THE SAME. NO EVIDENCE WHATSOEVER MADE AVAILABLE EITHER BEFORE THE LOWER AUTHORITIES OR B EFORE US. BEING SO WE ARE NOT IN A POSITION TO UPHOLD THE AR GUMENT OF LD.A.R AND THE SAME IS REJECTED. FURTHER LD.A.R SUBMITTED THAT THE CONCLUSION REACH ED IN PARA 4 OF THE IMPUGNED ORDER IS CONTRARY TO THE MATERIALS AVA ILABLE ON RECORD. IT IS SUBMITTED THAT THE REJECTION OF THE C OST OF IMPROVEMENT PERTAINS TO THE ADDITIONAL CONSTRUCTION IN THE ORIGINAL ASSET FOR WANT OF ADDITIONAL EVIDENCE IN ITS ENTIRE TY IS WHOLLY UNJUSTIFIED AND ALSO CLEAR MISTAKE APPARENT FROM RE CORD. ACCORDING TO LD.A.R THE PURCHASE DEED DATED 19.08. 1975 ESPECIALLY THE ANNEXURE IA ENVISAGES THE BUILDING TO THE EXTENT OF 540 SQ.FT. AND THE SALE DEED DATED 27.10.2010 CO NFIRMED THE ADDITIONAL CONSTRUCTION/THE AVAILABILITY OF THE BUI LDING TO THE EXTENT MA NO.170/16 :- 3 -: OF GROUND FLOOR 1800 SQ.FT AND FIRST FLOOR 1200 AS COULD BE SEEN FROM ANNEXURE IA. THE PURCHASE DEED AND SALE DEED OF THE CAPITAL ASSET UNDER CONSIDERATION WERE PART OF THE RECORDS OF THE DEPARTMENT AS WELL AS THE RECORDS OF THE HONBL E BENCH. LD.A.R SUBMITTED THAT THE DECISION WAS RENDERED IN PARA 4 WHILE SUSTAINING THE DISALLOWANCE OF THE CLAIM OF COST OF IMPROVEMENT IN ITS ENTIRETY IN THE COMPUTATION OF LONG TERM CAPITA L GAINS ON THE GROUND OF LACK OF SUPPORTING EVIDENCE AND HOWEVER T HE BASIC EVIDENCE IN THE FORM OF REGISTERED PURCHASE DEED AS WELL AS SALE DEED OF THE SAID CAPITAL ASSET CONFIRMED THE ADDITI ONAL CONSTRUCTION/THE IMPROVEMENT IN THE BUILDING TO THE EXTENT OF 3000 SQ.FT. AS AGAINST THE ORIGINAL BUILDING TO THE EXTE NT OF 540 SQ.FT. PROVING THE CLAIM OF COST OF IMPROVEMENT IN THE COM PUTATION OF LONG TERM CAPITAL GAINS. LD.A.R FURTHER PLEADED TH AT THE NON CONSIDERATION OF THE PURCHASE DEED DATED 19.08.1975 AND THE SALE DEED DATED 27.10.2010 WOULD VITIATE THE DECISI ON RENDERED IN PARA 4 THEREBY PROVING THE MISTAKE COMMITTED BY THE BENCH IN RENDERING DECISION IN RELATION THERETO. THE NON CON SIDERATION OF THE EVIDENCE FILED BY THE PETITIONER WOULD CONSTITU TE THE MISTAKE APPARENT FROM RECORD TRIGGERING THE PROCEEDINGS UND ER SECTION 254(2) OF THE ACT. HENCE THE LD.A.R PRAYED FOR R ECALL OF THE ORDER MA NO.170/16 :- 4 -: DATED 22.01 .2016 IN ORDER TO CONSIDER THE AVAILABL E MATERIALS ON RECORD INCLUDING THE PURCHASE DEED DATED 19.08.1975 AND THE SALE DEED DATED 27.10.2010 FOR QUANTIFYING THE COST OF IMPROVEMENT SO AS TO CONSIDER THE CORRECTNESS OF TH E CLAIM OF THE PETITIONER IN THE COMPUTATION OF LONG TERM CAPITAL GAINS AND THUS RENDER JUSTICE. 3. ON THE OTHER HAND LD.D.R SUBMITTED THAT THERE WAS NO EVIDENCE PRODUCED BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES. HENCE THERE IS NO MISTAKE IN THE ORDER OF THE TRIB UNAL SO AS TO RECTIFY THE SAME. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE COMPANY DREW OUR ATTENTION TO COPY OF ANNEXTURE-1A SAID TO BE ATTACHED TO THE SALES DEED OF THE IMPUGNED PROPERTY DATED 27 TH OCTOBER 2010. ACCORDING TO LD.A.R IT CONTAINS THE AREA OF GROUND FLOOR AT 1 000 SQ.ME TER AND FIRST FLOOR 1 200 SQ.FT AND IF THE COST OF THESE BUILDIN GS ARE CONSIDERED THE ASSESSEE IS ENTITLED FOR COST OF IMPROVEMENT AT ` 33 41 138/-. HE PRAYED THAT THE ISSUE MAY BE REMITTED TO THE FIL E OF AO FOR FRESH CONSIDERATION. WE HAVE CAREFULLY GONE THROUGH THE SALES DEED COPY PRODUCED BEFORE THE TRIBUNAL AT THE TIME OF ORIGINAL HEARING OF THIS APPEAL WHICH IS ON RECORD. IN OUR OPINION IF THIS MA NO.170/16 :- 5 -: RECORD IS PART OF THE ASSESSMENT RECORD OR IS SAID TO BE FILED BEFORE THE LD.CIT(A) THEN THE AO HAS TO EXAMINE TH E ISSUE RELATING TO THE COST OF THE IMPROVEMENT OF IMPUGNED PROPERTY SO AS TO GRANT THE COST OF IMPROVEMENT WHILE COMPUTING THE LONG TERM CAPITAL GAINS. WITH THIS OBSERVATION WE ARE INCL INED TO REMIT THE ISSUE IN DISPUTE IN THE ASSESSEES APPEAL TO THE F ILE OF AO FOR FRESH CONSIDERATION. ACCORDINGLY THE FINAL RESULT OF THE ASSESSEES APPEAL IN ITANO.1240/MDS./2015 IS PARTLY ALLOWED FO R STATISTICAL PURPOSES. 5. IN THE RESULT THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 28 TH SEPTEMBER 2016 AT CHENNAI. SD/ - SD/ - . ! '# $ ( DUVVURU RL REDDY ) ) & / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER %& / CHENNAI '() / DATED: 28 TH SEPTEMBER 2016 K S SUNDARAM (*++ -.+/. / COPY TO: + 1 . / APPELLANT 3. + 0+$ / CIT(A) 5. .12+ 3 / DR 2. / RESPONDENT 4. + 0 / CIT 6. 2#4+5 / GF