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Income Tax Appellate Tribunal, JAIPUR BENCHES (SMC
Before: SHRI BHAGCHANDvk;dj vihy la-@ITA No. 274/JP/2016
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR Jh Hkkxpan] ys[kk lnL;] ds le{k BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER vk;dj vihy la-@ITA No. 274/JP/2016 fu/kZkj.k o"kZ@Assessment Year : 2011-12 cuke M/s Malhotra Buildcon (P) Ltd., Income Tax Officer, Vs. B-118, Ranjeet Nagar, 60 Feet Ward-1(2), Road, Alwar. Alwar. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAFCM 5717 J vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Shailendra Vijay (Adv) jktLo dh vksj ls@ Revenue by : Shri R.A. Verma (Addl.CIT) lquokbZ dh rkjh[k@ Date of Hearing : 06/03/2017 mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 07/03/2017 vkns'k@ ORDER
PER: BHAGCHAND, A.M. This is an appeal filed by the assessee against the order dated 18/01/2016 passed by the ld. CIT(A), Alwar for the A.Y. 2011-12. 2. In this case, this Bench vide order dated 26/07/2016 had dismissed the appeal of the assessee due to non-prosecution. Against the said order, the assessee filed M.A. and vide order dated 20/01/2017, the appeal of the assessee was recalled and fixed for hearing.
ITA 274/JP/2016_ 2 M/s Malhotra Buildcon Pvt. Ltd. Vs ITO
The only issue involved in the present appeal is invoking the
provisions of Section 50C of the income Tax Act, 1961 (in short the Act)
in respect of the dwelling unit.
The assessee is engaged in the business of the purchasing and
selling of residential plots, flats, houses etc.. During the year, the
assessee has sold a residential unit declaring sale consideration of Rs.
15,75,000/-. However, the Stamp Valuation Authority has adopted the
value of the property at Rs. 16,12,748/- and the difference of Rs.
37748/- was made.
During the course of hearing, the ld. AR of the assessee has
submitted that the assessee was a builder and the unit, which has been
sold, was a part of stock in trade and the assessee has offered business
income on this transaction, therefore, provisions of Section 50C of the
Act cannot be applied in the assessee’s case as these provisions are
applicable only where the asset was held as a capital asset and the
same was transferred and the capital gain provisions were attracted.
At the outset, the ld Sr. DR has relied on the orders of the lower
authorities.
I have heard the rival contentions of both the parties, perused
the material available on the record and also gone through the orders
ITA 274/JP/2016_ 3 M/s Malhotra Buildcon Pvt. Ltd. Vs ITO of the authorities below. Since the assessee was engaged in the
business of construction and development of property and selling the
units. The unit, which has been sold by the assessee, was a trading
asset in the assessee’s hand and it has offered the income under the
head of business, therefore, provisions of Section 50C of the Act are
not applicable in the assessee’s case. Hence, I set aside the order of
the authorities below and allow the assessee’s appeal.
In the result, the appeal of the assessee is allowed.
Order pronounced in the open court on 07/03/2017.
Sd/- ¼Hkkxpan½ (BHAGCHAND) ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 07th March, 2017 *Ranjan आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- M/s Malhotra Buildcon (P) Ltd., Alwar. 1. izR;FkhZ@ The Respondent- The ITO, Ward-1(2), Alwar. 2. vk;dj vk;qDr@ CIT 3. vk;dj vk;qDr¼vihy½@The CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 274/JP/2016) 6. vkns'kkuqlkj@ By order,
सहायक पंजीकार@Aेेज. त्महपेजतंत