Case Law Details
Venugopal Naidu Pushparaj Vs ITO (ITAT Bangalore)
Conclusion: Once assessee adopted the cost of these 7 flats received under JDA for the purpose of offering the capital gain, same to be considered as cost of construction from the sale consideration of flats received from the developer under the agreement.
Held: AO initiated re-assessment proceedings on the ground that capital gains chargeable to tax was escaped assessment in respect of the Land transferred in favour of M/s. Sai Gokul Builders in the scheme of JDA dtd: 28-01-2008. AO held that assessee had made a new claim on account of cost of construction of the 7 flats amounting to Rs. 86,10,000/- out of the total consideration of Rs. 1,20,67,000/-and the same was disallowed by AO on the ground that the cost of construction as claimed was not incurred by assessee, but it was incurred by the Builder. It was held that assessee had considered cost of these 7 flats as a consideration while computing the capital gain on entering into JDA. Once the assessee included the cost of these 7 flats as sale consideration while determining capital gain on entering into JDA, the corresponding benefit should be given on sale of these 7 flats. Now the issue was only with regard to the sale consideration adopted by assessee towards these 7 flats while offering the capital gain. AO could not overlook the computation of capital gain offered by assessee on entering into the JDA. Once assessee adopted the cost of these 7 flats for the purpose of offering the capital gain, same to be considered as cost of construction on sale of these 7 flats.
FULL TEXT OF THE ITAT JUDGEMENT
This appeal by the assessee is directed against order of the CIT(A) dated 30.6.2017. The assessee has raised the following grounds of appeal:
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Author Bio
Nowadays income tax officer does not follow or obey to CBDT circular No. 14(XL-35) of 1995 dated 11.4.1995 as per which the lower authorities should have got the assessee s to the correct proposition of the law regarding the taxability of the capital gain. For clarity, we reproduce the contents of the said circular.
“Officers of the department must not take advantage of ignorance of an assessee as to his rights. It is one of their duties to assist a tax payer in every reasonable way, particularly in the matter of claiming and securing relief and in this regard the officers should take the initiaitive in guiding a tax payer where proceedings or other particulars before them indicte that some refund or relief is due to him. This attitude would, in the long run, benefit the department, for it would inspire confidence in him that he may be sure of getting the square deal from the department