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30-10-2019, Rajesh Kumar Adukia, Section 153A(I), 54, 234A, Tribunal Ranchi

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1 week 4 hours ago #11318 by amit
Section - 153A(I), 54, 234A, 234B, 234C,2(13), 28, 54F
Order Date - 30-10.2019
Favouring - Partly
Court - Tribunal Ranchi
Appellant - Rajesh Kumar Adukia
Respondent - DCIT
Justice - CHANDRA MOHAN GARG JM
Citation - 1119Taxpundit55
Appeal No. - ITA No.14/Ran/2018
Asstt. Year - 2013-14

Order

PER : CHANDRA MOHAN GARG

The above captioned appeals have been filed by two assessees against the separate orders of the Commissioner of Income Tax(Appeals)- Ranchi both dated 16.10.2017 for the assessment year 2013-14.

2. In the beginning of the hearing, ld representative of parties agreed that the facts and circumstances of both the appeals are identical and similar as the land on which construction of flat was done was purchased by Smt. Asha Devi Adukia on 10.11.1981 jointly with Rajesh Adukia, who gifted her part of the land with building to her son Prakash Kumar Adukia on 20.11.2006. For the sake of convenience of adjudication, we are taking up the appeal in ITA No.14/Ran/2018 in the case of Rajesh Kumar Adukia as a lead case to decide the controversy.

3. Identical grounds have been raised in both the appeals, which read as under:

“i) For that search and seizure operation was initiated against the assessee u/s 132 of IT Act on 19.01.2017. as per second proviso to section 153 A(l) of income tax act. The assessment order passed by Assessing Officer for A/Y 2013-14 and for which appeal was pending has abated on the date search is initiated i.e 19.01.2017. Order passed by Honourable CIT (appeal) dated 16.10.2017 is a void order.

The order is passed on assessment which has abated. Assessee brought this fact in the notice of learned CIT (appeal).Assessee reques Honourable ITAT to treat the order of CIT (appeal) as well as assessment order as cancelled since, Assessee's income for A/Y2013 14 is being reassessed u/s 153A of income tax act.

(ii) For that the Ld. CIT (A), Ranchi erred in treating the activity of self construction of building on owned land and selling subsequentlyas adventure in the
nature of trade and ignored our ground of appeal. The Ld. CIT (A) erred in treating income as business income instead of long term capital gain. It is the capital assets of the assessee and should be treated as capital gain.

(iii) For that the Ld. CIT (A), Ranchi erred in calculating profit earned from sale of flats by arbitrary enhancing the value of unsold flats at market rate instead of cost price. (iv) For that the order passed u/s 143(3) of the Income Tax Act, 1961, treating the Long Term Capital Gains as Short Term Capital Gain is bad in law as well as in facts and against the Principles of natural justice and therefore liable to be set aside.

(iv) For that the order passed u/s 143(3) of the Income Tax Act, 1961, treating the Long Term Capital Gains as Short Term Capital Gain is bad in law as well as in facts and against the Principles of natural justice and therefore liable to be set aside..

(v) For that the learned Assessing Officer erred in law as well as in facts of the case, while treating the Long Term Capital Gain as Short Terms Capital Gain and failed to appreciate the fact the assessee had sold one composite unit of flat and not land and flat separately. For all practical purposes, flat and land cannot be separated.

(vi) For that the learned Assessing Officer erred in treating the flats as Short Term Capital Asset. The learned Assessing Officer had done a self contradictory addition. The learned Assessing Officer in Principle had accepted the flats was constructed in Financial Year 2009-10. Also the learned Assessing Officer had accepted that flat was sold in Financial Year 2012-13 (A.Y. 2013-14). The period between Financial Year 2009-10 to Financial Year 2012-13 is 48 months. Thus flats had to be treated as Long Term Capital Asset.

(vii) The learned Assessing Officer erred in law in applying stamp duty value to calculate the capital gain without referring the case to DVO. Even the assessee had objected that the stamp duty value was higher than the market value.

(viii) For that the learned Assessing Officer also failed to consider the submission of the assessee and intention of the assessee in respect of long term capital asset.

(ix) For that the learned Assessing Officer was not justified in disallowing the deduction u/s 54 of the Income Tax Act, 1961 from the long term capital gain so determined in the assessment order and misinterpreted the provision of income tax act as stipulated in section 54.

(x) For that the learned Assessing Officer was not justified in charging interest u/s 234A, 234B and 234C of the Income Tax act, 1961, keeping in view of the order passed by the Hon'ble Jharkhand High Court in the case of Ajay Prakash Verma in T.A.No. 38 of 2010.

(xi) For that the appellant craves for leave to add, delete, amend or modify any ground before or at the time of appellate proceedings.”

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