HARKANT MAGANLAL JOSHI,MUMBAI vs. THE ITO - 33(1)(5), MUMBAI

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ITA 167/MUM/2021Status: DisposedITAT Mumbai19 May 2022AY 2013-145 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal set aside the CIT(A)'s order for AY 2013-14 and restored the matter to the Assessing Officer to verify the date of sale of the fourth flat. Capital gains will be taxed upon the sale of the flat.

What were the facts?

The assessee entered into a Joint Development Agreement for his land, entitling him to four flats. The Assessing Officer treated the land as stock-in-trade and computed capital gains on the sale of flats. The assessee claimed the fourth flat was not sold in AY 2013-14.

What were the issues?

Whether capital gains are taxable in AY 2013-14 for the fourth flat, which the assessee claims was not sold. The taxability of capital gains on conversion of a capital asset into stock-in-trade.

Which sections of the Income-tax Act were involved?

Section 45

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI

Before: HONBLE SHRI SANJAY GARG

For Appellant: Shri Ashok Bansal, AR
For Respondent: Shri Kanhya Lal Kanak, DR
Hearing: 19.05.2022Pronounced: 19.05.2022
1.

The present appeals have been preferred by the assessee for Assessment Year 2012-13 and 2013-14 respectively, against the orders even dated 22.11.2019 of the Commissioner of Income-tax (Appeals) [hereinafter referred to as the ‘CIT (A)’] passed under section 250 of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’).

2.

At the outset, the learned counsel for the assessee has submitted that as per instruction, he does not press the ground taken in for A.Y. 2012-13. He therefore, had pleaded that the aforesaid appeal may be dismissed as not pressed. Hence, the ITA No.

3.

Now, coming to assessee’s appeal in A.Y. 2013-14, the assessee has raised the following grounds of appeal:-

“1. The Ld. CIT (Appeals) erred in holding that there is no merit in the contention of the appellant that sufficient opportunity was not provided by AO.

2. The Ld. CIT (Appeals) erred in confirming the addition of Rs. 10,53,576/- in respect of entire one forth of Capital Gains instead of 50% of one forth of Capital Gains of the Joint Venture.

3. The Ld. CIT (Appeals) erred in dismissing the allowance of deduction u/s 54 of the Income tax Act, 1961.”

4.

The sole issue raised by the assessee in this appeal is relating to the computation of capital gains received by the assessee on account of sale of flat.

5.

The brief facts relating to the issue are that the assessee owned a land since 1971. In the year relevant to Assessment Year 2010-11, the assessee entered into a Joint Development Agreement (JDA) for development of the said land. On completion of the project, the assessee got entitled to 40% share in four (4) flats in exchange of his land as per the terms of JDA. As per the Assessing

6.

Now, before this Tribunal, the learned Authorized Representative has not disputed the computation of capital gains, so far as, Assessment Year 2012-13 is concerned and as observed above, he has not pressed the grounds relating to the appeal bearing in relevant to Assessment Year 2012-13.

So far as, the computation of capital gains relating to the fourth flat which was allegedly sold in A.Y. 2013-14 is concerned, the learned counsel has pleaded that the assessee in fact had not sold the fourth flat and the same is still retained by the assessee. He has pleaded not as per the provision of Section 45 of the Act, the capital gains arising on the conversion of capital asset into stock-in- trade are liable to be taxed in the year of sale of stock-in- trade and since, the fourth flat as per learned counsel has not been sold, therefore, the gains cannot be taxed in the assessment year under consideration i.e. A.Y. 2013-14.

8.

In the result, assessee’s appeal for A.Y. 2012-13 in is hereby dismissed, whereas appeal of the assessee for A.Y. 2013-14 in is treated as allowed for statistical purposes.

Order pronounced in the open court on 19.05.2022.

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