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Income Tax Appellate Tribunal, “A” BENCH, MUMBAI
Before: SHRI MAHAVIR SINGH & SHRI RAMIT KOCHAR
PER RAMIT KOCHAR, Accountant Member
This appeal, filed by the assessee, being 23rd May, 2014 passed by learned Commissioner of Income Tax (Appeals)- 28, Mumbai (hereinafter called “the CIT(A)”), for the assessment year 2007-08, the appellate proceedings before the learned CIT(A) arising from the assessment order dated 24th December, 2009 passed by the learned Assessing Officer (hereinafter called “the AO”) u/s 143(3) of the Income-tax Act,1961 (Hereinafter called “the Act”).
ITA 5134/Mum/2014 2
The grounds of appeal raised by the assessee in the memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called “the Tribunal”) read as under:-
“1] On the facts and circumstances of the case and in law the CIT(A) erred in holding the long-term capital gains on the sale of residential premises as short-term capital gains. 2] On the facts and circumstances of the case and in law the CIT(A) erred in not allowing the additional grounds of appeal arising from the assessment order raised by the Appellant during the course appellate proceedings.”
The Brief facts of the case are that from the return of income filed by the assessee, it was observed by the A.O. that the assessee had claimed loss of current year to be carried forward amounting to Rs. 14,515/- as per schedule CFL of the return of income. On perusal of the schedule CG-Capital gains of the return of income, it was observed that the assessee has arrived at a long term capital loss of Rs. 14,515/- , whereby the assessee considered his share in the property sold at 10%. It was observed by the AO from the details furnished by the assessee that the assessee along with his wife Smt. Malini Rao had entered into an agreement to sale dated 30th December, 2003 for purchase from M/s Sujana Developers, a flat No. 1202, A wing of the proposed building known as ‘Sun Crest’ in the project of the developers known as ‘Accolade Galaxy’, Near LIC Service Road, Naupada, Thane. It was noticed that the said project was a redevelopment project coming on the land belonging to already registered Accolade Co-operative Society and the developers had development rights to develop the said project. It was observed by the AO that the assessee and his wife had paid a token amount of Rs. 4.5 lacs (not being more than 15% of the proposed value of consideration of the said flat of Rs. 38.50 lacs ) as earnest of deposit. . As per ITA 5134/Mum/2014 3 the agreement to sale, the possession of the flat was to be given in May, 2004 subject to the payment of full consideration by the assessee. As per the return of income filed for assessment year 2007-08, the assessee’s wife Smt. Malini Raod declared 90% share in the proposed flat and was claiming carried forward of loss of Rs. 1,30,633/- as long term capital loss on sale of the said flat. The assessee’s wife was Director of a company Mosaic Advertising and Marketing Private Limited , which was registered at the residence address of the assessee and she was receiving salary income from the said company , while assessee has a salary income of Rs.9,55,700/- from MNC and her wife net salary income was Rs. 2,37,500/- . The A.O. observed that the ratio of ownership declared by the assessee and his wife did not match their income, hence, notice was issued u/s 142(1) of the Act to show cause that why only 10% of the capital gains/loss was declared by the assessee , while claiming that 90% of the flat was owned by wife Mrs. Malini Rao, which fact is not borne out from the sale agreements nor from the purchase agreements of the flat as well nor from the HDFC loan account statement. The assessee did not submit legible copies of bank statement of wife to prove that payments for the purchase of flat has been made through the wife’s bank account and source of funding the said payments for flat by the wife. It was observed by the AO that based upon the incomes of the assessee and his wife, the assessee is owner of the property holding 100% share. Further it was observed by the A.O. that the assessee has arrived long term capital gain considering the date of acquisition of the property bring date of allotment of flat vide letter of allotment dated 27th January, 2003 and date of sale as 24th November, 2006. The A.O. observed that the assessee along with his wife entered into agreement of sale dated 30th December, 2003 with respect to the purchase of said property from Sujana developers flat no 1202 , A Wing, on the then proposed construction to be known as ‘Sun Crest’ in the project of the developer known as ‘Accolade Galaxy’ , Near LIC Service road, Naupada , Thane , while the allotment of flat was done on 27th January, 2003. The A.O.
ITA 5134/Mum/2014 4 took the date of agreement to sale i.e. 30-12-2003 for computation of capital gain and brought to tax short term capital gain/loss in the hands of the assessee. The AO observed that the letter of allotment does not give any right to the assessee nor create any obligation on the builder more so builder is a private body rather than being a statutory body like DDA or MHADA. It was also observed that by paying this 10% of cost of the flat at the time of letter of allotment by a private builder, the assessee is also not even member of the Accolade Cooperative society and it will not create any right on the land owned by the society on which the project is constructed . Thus, the AO observed that the assessee has not owned the flat for more than 36 months as the AO calculated the date of acquisition from the date of agreement to sale i.e. 30-12-2003 and date of sale agreement dated 24/11/2006 , instead of taking date of acquisition from the date of letter of allotment which was dated 27/01/2003. Similarly, with respect to the cost of improvement and transfer cost, the same were disallowed as the assessee could not furnish proper documents. The invoices for improvement to the flat of Rs. 7,44,300/- to Suba Design / Malhar Interiors were not having MVAT number /service tax numbers etc and the same were rejected by the AO , vide assessment order dated 24.12.2009 passed u/s 143(3) of the Act.
Aggrieved by the assessment order dated 24.12.2009 passed by the A.O. u/s 143(3) of the Act , the assessee filed first appeal before the ld. CIT(A).
Before the ld. CIT(A), the assessee contested the additions made by the A.O. The assessee has also raised additional ground before the ld. CIT(A) which reads as under:
“1. On the facts and circumstances of the case and in law, the A.O. erred in assessing the entire short term capital gains/loss in the hands ITA 5134/Mum/2014 5 of the appellant as against his proportionate share of 10% declared by the appellant.
2. On the facts and circumstances of the case and in law, the A.O. erred in not allowing the cost of improvement by the appellant amounting to Rs. 7,44,000/- in computing the capital gain/loss.”
These additional grounds were not admitted by the ld. CIT(A) and were rejected at threshold as not being purely legal in nature and do not arise from the original grounds of appeal filed. The ld. CIT(A) observed that the assessee has not made substantial investment in the flat nor has obtained a domain over the flat from the date of letter of allotment issued by the builder, hence, the property cannot be said to have been purchased on the date of letter of allotment and the A.O. has correctly concluded that the property was purchased by the assessee on the date of agreement of sale i.e. 30th December 2003 and the holding period comes to less than 36 months as the property has been sold on 24th November, 2006. The ld. CIT(A) accordingly upheld the A.O.’s action vide appellate order dated 23.05.2014.
6. Aggrieved by the appellate order dated 23-05-2014 passed by the ld. CIT(A), the assessee filed second appeal before the Tribunal.
7. At the time of hearing before us, none appeared on behalf of the assessee. Therefore, we proceed to dispose of the appeal after hearing the learned D.R.
The ld. DR. relied upon the orders of authorities below.
We have heard the ld. D.R. and also perused the material available on record. We have observed that the assessee along with his wife Mrs. Malini ITA 5134/Mum/2014 6 Rao had purchased the flat for which payments have been made by the assessee and his wife. The assessee and his wife had also jointly raised bank loan for the acquisition of the said flat . The assessee is claiming that he acquired the flat from the date of letter of allotment by the builder i.e. 27-01- 2003 while the A.O. has considered the date of agreement to sell which is 30th December, 2003 as the date of acquisition of the flat. We have observed that the CBDT Circular No. 471 dated 15th October, 1986 relating to allotment of flat under self financing scheme of Delhi Development Authority shall be applicable as we do not see any reason why the said circular shall not be applicable to a private builder, and date of letter of allotment i.e. 27- 01-2003 shall be deemed to be date of acquisition of flat and hence since the flat was sold on 24-11-2006, the gains accrued to the assessee are long term capital gains as the asset is held for a period of more than thirty six months. The said CBDT Circular No. 471 dated 15th October, 1986 is reproduced hereunder:
Capital gains from long-term capital asset - Investment in a flat under the self- financing scheme of the Delhi Development Authority - Whether to be treated as construction for the purposes of capital gains 1. Sections 54 and 54F provide that capital gains arising on transfer of a long- term capital asset shall not be charged to tax to the extent specified therein, where the amount of capital gain is invested in a residential house. In the case of purchase of a house, the benefit is available if the investment is made within a period of one year before or after the date on which the transfer took place and in case of construction of a house, the benefit is available if the investment is made within three years from the date of the transfer. 2. The Board had occasion to examine as to whether the acquisition of a flat by an allottee under the Self-Financing Scheme (SFS) of the D.D.A. amounts to purchase or is construction by the D.D.A. on behalf of the allottee. Under the SFS of the D.D.A., the allotment letter is issued on payment of the first instalment of the cost of construction. The allotment is final unless it is cancelled or the allottee withdraws from the scheme. The allotment is cancelled only under exceptional circumstances. The allottee gets title to the property on the issuance of the allotment letter and the payment of instalments is only a follow-up action and taking the delivery of possession is only a formality. If ITA 5134/Mum/2014 7
there is a failure on the part of the D.D.A. to deliver the possession of the flat after completing the construction, the remedy for the allottee is to file a suit for recovery of possession.
3. The Board have been advised that under the above circumstances, the inference that can be drawn is that the, D.D.A. takes up the construction work on behalf of the allottee and that the transaction involved is not a sale. Under the scheme the tentative cost of construction is already determined and the D.D.A. facilitates the payment of the cost of construction in instalments subject to the condition that the allottee has to bear the increase, if any, in the cost of construction. Therefore, for the purpose of capital gains tax the cost of the new asset is the tentative cost of construction and the fact that the amount was allowed to be paid in instalments does not affect the legal position stated above. In view of these facts, it has been decided that cases of allotment of flats under the Self-Financing Scheme of the D.D.A. shall be treated as cases of construction for the purpose of capital gains. Circular : No. 471 [F. No. 207/27/85-IT(A-II)], dated 15-10-1986.
We would like to also make it clear that the assessee will be entitled for cost inflation index(CII) based on the actual payments made and date of payment, accordingly CII will be worked out with reference to amount of payment and date of payment, on progressive payments. Further it is observed that the assessee has raised additional grounds before the learned CIT(A) which were not admitted by the ld. CIT(A) and rejected at the threshold and hence consequently not adjudicated while framing appellate order dated 23.05.2014. In our considered view and in the interest of justice , these additional grounds raised by the assessee before the learned CIT(A) need to be admitted as they rise from the order of the AO and the matter is to be set aside and restored to the file of the learned CIT(A) for adjudication of these issue’s raised in these additional grounds on merit , after considering the evidences/explanations filed by the assessee . The additional grounds of appeal raised before learned CIT(A) which were not adjudicated earlier by the learned CIT(A) and which shall now be adjudicated by learned CIT(A) as per our directions shall be :
ITA 5134/Mum/2014 8
“1. On the facts and circumstances of the case and in law, the A.O. erred in assessing the entire short term capital gains/loss in the hands of the appellant as against his proportionate share of 10% declared by the appellant.
2. On the facts and circumstances of the case and in law, the A.O. erred in not allowing the cost of improvement by the appellant amounting to Rs. 7,44,000/- in computing the capital gain/loss.”
However, we make it clear that we have not commented on the merits of the issues which are covered in these additional grounds raised by the assessee before the learned CIT(A). The assessee will be allowed by learned CIT(A) to submit all the necessary evidences/explanation before adjudication of these additional grounds of appeal and also proper and sufficient opportunity of being heard shall be allowed by the learned CIT(A) to the assessee. We order accordingly.
In the result, the appeal filed by the assessee in 2007-08 is allowed as indicated above.
Order pronounced in the open court on 8th November, 2016. आदेश क� घोषणा खुले �यायालय म� �दनांकः 08-11-2016 को क� गई ।