2020 (11) TMI 854 - AT - Income Tax

Taxability of long term capital gain arising on sale of depreciable asset at 20% instead of 30% - assessee has not made such claim either in the original return of income or through a revised return of income - HELD THAT - Assessee did make a claim through submissions that since the asset sold was held for more than three years, the rate of tax as applicable in case of long term capital gain would apply in terms of section 112. Both, the AO and Commissioner (Appeals) have rejected the aforesaid claim of the assessee on the ground that the assessee has not made such claim either in the original return of income or through a revised return of income as provided under section 139(5). The settled legal position as emerges from the decision of the Hon'ble Supreme Court in Goetz India Ltd. 2006 (3) TMI 75 - SUPREME COURT and CIT v/s Pruthvi Brokers and Shareholders Pvt. Ltd. 2012 (7) TMI 158 - BOMBAY HIGH COURT the appellate authority certainly has power and jurisdiction to entertain a fresh claim of the assessee if the relevant fact for deciding such issue are available on record. Therefore, in our considered opinion, Commissioner (Appeals) was not justified in rejecting the claim of the assessee without deciding it on merit. - Grounds raised by the assessee are allowed for statistical purposes.

Summary

Issues:
1. Non-consideration of claim of taxability of long term capital gain at 20% instead of 30%.

Analysis:
The appeal was against the order passed by the Commissioner of Income Tax (Appeals) for the assessment year 2015-16. Despite the absence of the assessee during the hearing and no application for adjournment, the Tribunal proceeded ex-parte. The grievance of the assessee was related to the taxability of long term capital gain arising from the sale of a depreciable asset at 20% instead of 30%. The assessee, a partnership firm, initially declared a total income of ?98,88,420 and offered short term capital gain of ?99,44,569 from the sale of an industrial gala treated as a depreciable asset. During the assessment proceedings, the assessee claimed that the asset was held for more than three years, warranting a lower tax rate as per section 112 of the Act. However, both the Assessing Officer and the Commissioner (Appeals) rejected this claim on the grounds that it was not made in the original or revised return of income, citing legal precedents.

The Tribunal disagreed with the lower authorities, stating that the Commissioner (Appeals) erred in not deciding the claim on its merits. Referring to legal precedents like the decision of the Hon'ble Supreme Court in Goetz India Ltd. and the Hon'ble Jurisdictional High Court in CIT v/s Pruthvi Brokers and Shareholders Pvt. Ltd., the Tribunal emphasized that the appellate authority has the power to entertain a fresh claim if relevant facts are on record. Therefore, the Tribunal set aside the order of the Commissioner (Appeals) and remanded the issue back to the Assessing Officer for a decision on the claim, considering the judicial precedents. The Assessing Officer was directed to provide a reasonable opportunity for the assessee to be heard before deciding on the matter. The grounds raised by the assessee were allowed for statistical purposes, and the appeal was allowed accordingly.

In conclusion, the Tribunal's decision favored the assessee, highlighting the importance of considering fresh claims on their merits and providing a fair opportunity for the assessee to present their case before the Assessing Officer.