VARUN J.MAHER,CHENNAI vs. ACIT NON CORPORATE CIRCLE 10, CHENNAI
In favour of the Revenue: the assessee's appeal was dismissed. From the AI summary of this appeal.
What did the Tribunal hold?
The Tribunal confirmed the addition of capital gains in the impugned assessment year. However, it directed the Assessing Officer to examine the disclosure of capital gains in AY 2010-11 to avoid double taxation and refund any excess tax paid.
What were the facts?
The assessee claimed exemption under Section 54 for capital gains arising from the sale of property, based on an advance given for a new property. However, the agreement for the new property was rescinded, and the capital gains were later offered to tax in Assessment Year 2010-2011.
What were the issues?
Whether the assessee is eligible for exemption under Section 54 when the new property acquisition failed and the capital gains were offered to tax in a subsequent year. The issue also involves avoiding double taxation.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, ‘C’ (SMC
Before: SHRI N.R.S. GANESAN & SHRI ABRAHAM P. GEORGE]
आदेश / O R D E R
PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER
Assessee in this appeal filed against an order dated 24.11.2017 of the ld. Commissioner of Income Tax (Appeals)-12, Chennai has raised the following grounds:-
‘’The appellate order dated 24-11-2017 in (A) 12/2013-14 passed by the Commissioner of Income-tax (Appeals) 12, Chennai, is erroneous, opposed to law and facts of the appellant's case.
The learned Commissioner of Income-tax (Appeals) erred in dismissing the appeal filed by the appellant.
The learned Commissioner of Income-tax (Appeals) erred in his observation that the appellant had failed to deposit the capital gains in the Capital Gains Account Scheme before the due date for filing the return of income for assessment year 2008-09.
The learned Commissioner of Income-tax (Appeals) failed to note that what is required to be deposited in the Capital gains Account Scheme as per sub-section (2) of section 54 is the amount of capital gains which is not appropriated towards the purchase of the new asset or which is not utilized by him for purchase or construction of the new asset before the date of furnishing of the return of income under section 139. 5.The learned Commissioner of Income-tax (Appeals) erred in his finding that the appellant had neither invested the capital gains amount into new residential house nor deposited the unutilized amount into Capital Gains account Scheme before the due date of filing return of income for assessment year 2008-09’’.
Ld. Counsel for the assessee submitted that assessee had 2. claimed exemption u/s.54 of the Income Tax Act, 1961 (in short ‘’the Act’’) on long term capital gains arising from sale of immovable property at Uma Complex on 10.10.2007 for a consideration of �53,37,500/-. As per the ld. Authorised Representative, exemption was claimed based on advance given to one M/s.Narendra Properties Ltd, Chennai on 31.10.2007 for acquiring an new property. However, as per the ld. Authorised Representative, due to unforeseen circumstances, agreement entered with M/s.Narendra Properties Ltd, had to be rescinded on 24.09.2009. As per the ld. Authorised Representative, since new asset could not be constructed within stipulated period of three years mentioned in Section 54 of the Act, long term capital gains claimed as exempt in the impugned assessment year, was offered to tax in the return of income filed for the assessment year 2010-2011. As per the ld. Authorised Representative, taxes were also paid in full. Submission of the ld. Authorised Representative was that assessee was pleading only for refund of the tax paid in assessment year 2010-2011, if capital gains was subjected to tax in the impugned assessment year.
Per contra, ld. Departmental Representative submitted that 3.
ld. Commissioner of Income Tax (Appeals) at para 9.2 of his order had given clear directions to the ld. Assessing Officer in this regard.
According to him, there could be no grievance for the assessee.
We have considered the rival contentions and perused the 4. orders of the authorities below. Claim u/s.54 of the Act was denied by the ld. Assessing Officer for a reason that new property proposed to be acquired by the assessee was a commercial one and not a residential house. Be that as it may, the agreement entered with M/s.Narendra Properties Ltd, was rescinded by the assessee on 24.09.2009. Capital gains claimed as exempt in the impugned assessment year was offered for taxation in the return filed for assessment year 2010-2011. Observation of the ld. Commissioner of Income Tax (Appeals) as it appears at para 9.2 of his order is reproduced hereunder:-
‘’9.2 Section 54 has taken into consideration circumstances where assesses couldnot invest in residential property. In such circumstances, the assessee's only option is to invest the un utilised claim in the capital gains accounts scheme within the time limit u/s 139(1) of the IT Act. It is clear from the facts of the case that the appellant had neither invested the capital gains amount in a new residential house nor deposited the unutilised amount in the Capital Gains Accounts Scheme before the due date as prescribed. Therefore, I confirm the ₹40,49,641/-. addition of made in the assessment order for AY 2008-09. However, the Assessing Officer shall examine the claim of disclosure of capital gains in AY 2010-11 to avoid any double taxation’’.
What we find is that ld. Commissioner of Income Tax (Appeals) had given a clear direction to the ld. Assessing Officer to avoid double taxation, while examining the disclosure of capital gains made by the assessee in his return for assessment year 2010-2011. We are sure that ld. Assessing Officer will refund any excess tax paid by the assessee since capital gains stand assessed in the impugned assessment year. In such circumstances, we do not find any reason to interfere with the orders of the lower authorities.
In the result, the appeal of the assessee is dismissed. 5.
Order pronounced on Thursday, the 10th day of May, 2018, at Chennai.
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