2012 (9) TMI 355 - AT - Income Tax

Capital gains - dispute regarding value of cost of construction - assessee contended that why the cost of construction of the flats while computing short term capital gain is adopted at Rs.900/- when cost of construction was accepted at Rs.1,300/- while determining long term capital gain by the CIT (Appeals) - Held that - It is found that long term capital gain for the very same flats have been accepted by the CIT (Appeals) to have a cost of construction at Rs.1,300/-. There cannot be apparently any valid reason to adopt cost of construction at Rs.900/- while computing short term capital gain. We, therefore, hold the cost of construction be adopted at Rs.1,300/- while determining short term capital gain. Accordingly, appeal of the assessee is partly allowed.

Issues:
1. Dispute over the assessment order enhancing income computed by the Assessing Officer.
2. Whether the appellant received additional flats from the developer.
3. Determination of short term capital gains on the sale of flats.
4. Allocation of profit from the sale of flats between the developer and the appellant.
5. Challenge to the computation of short term capital gain by the Assessing Officer.
6. Bifurcation of consideration received into land and building components for capital gains calculation.
7. Adoption of cost of construction for determining short term capital gain on the sale of flats.

Analysis:
1. The appeal was against the order of the Commissioner of Income-tax (Appeals) enhancing the income computed by the Assessing Officer for AY 2007-08. The appellant challenged the legality and factual basis of the assessment order.
2. The appellant disputed the claim that they received five additional flats from the developer apart from the consideration for transferring land rights. The appellant sought clarification on the number of flats received to resolve the discrepancy.
3. The Commissioner of Income-tax (Appeals) determined short term capital gains on the sale of flats, which the appellant contested for not being declared in the income tax return. The appellant challenged the computation of short term capital gains by the Assessing Officer.
4. The issue of profit allocation from the sale of flats between the developer and the appellant arose, with the Commissioner of Income-tax (Appeals) bifurcating the consideration into land and building components for capital gains calculation.
5. The appellant challenged the computation of short term capital gain by the Assessing Officer, pointing out that only four out of five flats were sold during the relevant assessment year, contrary to the assumption made in the assessment.
6. The Commissioner of Income-tax (Appeals) issued a notice of enhancement, emphasizing the need to separate consideration into land and building components for capital gains calculation, following judicial pronouncements on such transactions.
7. The Tribunal allowed the appeal in part, holding that the cost of construction for determining short term capital gain on the sale of flats should be adopted at Rs.1,300/-, aligning with the cost accepted for long term capital gain calculation.

This comprehensive analysis covers all the issues raised in the legal judgment, detailing the arguments presented by the parties and the Tribunal's decision on each aspect of the dispute.

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