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TMI Blog2022 (12) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... essee has challenged the order of the Assessing Officer in not granting indexed cost of acquisition - DRP has directed the AO to reduce the indexed cost of acquisition from the sale consideration and arrive at the correct LTCG. A perusal of the assessment order shows that the Assessing Officer has not granted the benefit of indexed cost of acquisition from the sale consideration to arrive at the correct LTCG. We, therefore, direct the Assessing Officer to follow the direction of the DRP and allow indexed cost of acquisition from the sale consideration. Ground raised by the assessee on this issue is accordingly allowed. Reversing 54F deduction granted in A.Y 2012-13 - HELD THAT:- A perusal of the order of the DRP at para 2.4.5 shows that the Assessing Officer in the draft order for A.Y 2014-15 has already brought to tax the amount of Rs.6,77,04,992/- as LTCG which was allowed u/s 54F in A.Y 2012-13. However, the DRP at Para 2.4.6 of the order sustained the addition made by the Assessing Officer on the ground that the same is made on protective basis. Since in the instant case, the flats were allotted to the assessee as per the JDA on 13.01.2012 and the flats were sold on 24.3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35% for the landowners share) on 9680 sq. yards of land in survey No.51/1, situated at Mansoorabad Village, Saroornagar Mandal, R.R. Distt. As per the above agreement, the assessee had received 52 constructed flats as his share admeasuring 65,190 sq.ft built-up area. The total cost of the project was Rs.19,35,96,000/- out of which assessee s share was Rs.6,77,58,600/- (35%). However, the assessee had not filed return of income for the A.Y 2012-13 declaring the same as taxable income for which the assessment for the A.Y 2012-13 was reopened. After considering all material on record, the assessment for A.Y 2012-13 was completed by the Assessing Officer by bringing the income from LTCG of Rs.6,77,58,600/- to tax in respect of the 52 Flats. 4. Further, it was seen that during the A.Y 2015-16, the assessee had entered into further agreements of sale cum irrevocable general power of attorney with possession with the developer M/s. SNR Nirmal India (P) Ltd whereby the assessee sold and conveyed 23 flats out of the 52 flats (he had already sold 29 flats in A.Y 2014-15) allocated to him by virtue of development cum GPA agreement dated 13.01.2012, to the developer-purchaser for a total co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.2015 i.e. A.Y 2015-16, the entire consideration was paid by the purchaser to the vendor the receipt of which the vendor had admitted and acknowledged vide the documents. Further the vendor has also given the vacant possession of the said property to the purchaser on 24.3.2015 when the deed of agreement of sale cum GPA was made and executed. Relying on the provisions of section 2(47) of the I.T. Act, 1961 and considering the fact that substantive compliance of the contract had taken place during the financial year 2014-15, the Assessing Officer held that the capital gain is assessable in A.Y 2015-16 and not in A.Y 2016-17. 7. So far as the issue relating to deemed income being reversal of deduction u/s 54F granted in A.Y 2012-13 is concerned, the Assessing Officer noted that the assessee had entered into JDA with the developer on 13th of January 2012 wherein the assessee was to receive 52 flats. However, there is no material on record to show that the assessee had actually received the said 52 ready built flats on the date of entering into JDA. Also, the assessee has not furnished occupancy certificate in respect of all 52 flats so as to reckon the actual date of acquisition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time as admitted by the appellant in his return of income for AY.2015-16. 2(c) The Ld. Assessing Officer is not justified in not discussing this issue in his order u/s.147 r.w.s 144C(13). 3(a) The Ld. Assessing Officer in the facts and circumstances of the case is not justified in reducing the cost only in computing the income on transaction of sale of 23 flats treating the same as Short Term Capital Gains ignoring the directions of DRP to reduce the indexed cost. 3(b) The Ld. Assessing Officer failed to appreciate the fact that the period of holding of 23flats in question is more than 3 years from the date of acquisition and hence, resulting capital gain is long-term entitling the appellant for deduction of indexed cost of acquisition. 4. The Ld. DRP in the facts and circumstances of the case is not justified in not allowing the credit of taxes of Rs.1,00,07,393/- paid in assessment year 2016-17 in respect of transaction of sale of 23 flats for Rs.4,38,57,500/- now brought to tax in assessment year 2015-16. 5(a). The Ld. DRP having observed (para 2.4.5) that the exemption granted u/s.54F during A.Y2012-13 needs to be brought back to tax in the year in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deleted. He submitted that since the assessee has admitted the amount of Rs.2,91,07,000/- as LTCG in A.Y 2014- 15, addition of the same for the impugned A.Y will amount to double addition of the same amount and therefore, despite the DRP admitting the same, sustained the addition which is not correct. He submitted that although the assessee in the instant case has admitted the amount of Rs.2,91,07,00/- to tax in A.Y 2015-16, however, the Revenue has brought the same to tax in A.Y 2014-15, therefore, the same should be excluded from taxation from the impugned A.Y. Referring to various decisions, he submitted that though the sum of Rs.2,91,07,000/- was admitted to tax in a particular A.Y, by the assessee himself, however, he is entitled to claim deduction of the same before the appellate authority since the same cannot be taxed in the year. For the above proposition, the learned Counsel for the assessee relied on the following decisions: 1) CIT vs. Shelly Products and another (261 ITR 367) (S.C) 2) CIT vs. Bharat General Reinsurance Co. Ltd (81 ITR 303) (Del.). 3) Prithvi Share Brokers (349 ITR 336) (Mum) 4) Parikh Co. (122 ITR 610) Guj. High Court) 5) S.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .7.4 to 2.7.7 reads as under: 2.7.4 The amount of Rs.,91,07,000/- has already been considered for taxation for the A.Y. 2014-15 pertaining to the sale of 29 flats. The assessee has again lats for a consideration of Rs. 4.38.57.500/-. In this regard as Observed the above, this amount has not been offered to tax by the assessee and hence LE AO has reopened the A.Y. by recording the reasons. The action of the AO In this regard has been upheld for the reasons mentioned in above para no 2.2. 2.7.5 To sum up, the total sale of 52 flats have been considered for taxation by the department as under: A.Y No.of flats sold Sale consideration 2014-15 29 Rs.5,12,07,000 2015-16 23 Rs.4,38,57,500 2.7.6 Thus, there is no scope for telescoping of the sum of Rs. 2,91,07,000/- in this year as this amount pertains to sale 29 flats and considered for taxation in the A.Y. 2014-15. 2.7.7 Further, the DRP's role is restricted to the adjudicate as to whether the income on sale of 23 flats has been brought to tax duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned Counsel for the assessee also support the arguments of the learned Counsel for the assessee that the same amount cannot be taxed twice in two different A.Ys. Under these circumstances, we deem it proper to restore the issue to the file of the Assessing Officer with a direction to verify the record and if the amount of Rs.2,91,07,000/- has been brought to tax in A.Y 2014-15, then the same should be deleted from A.Y 2015-16. We hold and direct accordingly. Needless to say, the Assessing Officer shall give due opportunity of being heard to the assessee while deciding the issue. The first issue raised by the assessee in the grounds of appeal 2a, 2b, and 2c are accordingly allowed for statistical purposes. 18. Ground of appeal 3a relates to the deduction of indexed cost of acquisition wherein the assessee has challenged the order of the Assessing Officer in not granting indexed cost of acquisition. 18.1 The learned Counsel for the assessee submitted that the sum of Rs.4,38,57,500/- was admitted to tax in A.Y 2016-17 and the DRP has directed the same to be brought to tax in A.Y 2015-16. He submitted that the assessee is not objecting to this observation of the DRP. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction granted in A.Y 2012-13. 22.1 The learned Counsel for the assessee submitted that the Assessing Officer proposed to bring the sum of Rs.2,99,46,438/- to tax as reversal of deduction granted in A.Y 2012-13 stating that the transfer is within 3 years. He submitted that since the date of transfer even according to the Assessing Officer is 24.3.2015, the transfer is made after 3 years from the date of Jt. Development Agreement i.e., 13.1.2012 and therefore, the Assessing Officer is not justified in proposing to reverse the deduction u/s 54F. Further, the Assessing Officer in the draft assessment order u/s 144C for A.Y 2014-15 has already proposed to reverse the entire deduction u/s 54F claim in A.Y 2012-13 amounting to Rs.6,77,04,992/-. Therefore, reversal of the deduction u/s 54F once again in A.Y 2015-16 will amount to double addition. 23. Referring to the order of the DRP at para 2.4.5 and 2.4.6 the learned Counsel for the assessee drew the attention of the Bench to the same which reads as under: 2.4.5 However, we note that the assessee has sold these properties during the A.Y 2014-15 and hence the exemption granted u/s.54F during A.Y 2012-13 needs to be brought bac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained the addition made by the Assessing Officer on the ground that the same is made on protective basis. Since in the instant case, the flats were allotted to the assessee as per the JDA on 13.01.2012 and the flats were sold on 24.3.2015, therefore, the new asset was sold after a period of 3 years and therefore, the provisions of section 54F(3), in our opinion, shall not apply. Further, when the entire sum of Rs.6,77,04,992/- was reversed in A.Y 2014-15, therefore, again addition of the same, under protective basis, in A.Y 2015-16, in our opinion, is also not justified. We, therefore, direct the Assessing Officer to verify the record and if the amount of Rs.2,99,46,438/- has already been brought to tax in A.Y 2014-15 or the transactions for the year under consideration is beyond a period of 3 years, then not to make any addition by reversing the deduction already allowed u/s 54F in A.Y 2012-13. Needless to say, that the Assessing Officer while verifying the record shall give due opportunity of being heard to the assessee and decide the issue as per fact and law. We hold and direct accordingly. Grounds of appeal 3b, 5a and 5b are accordingly allowed for statistical purposes. 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the request of the assessee before the DRP that the tax of Rs.1,00,07,393/- paid in A.Y 2016-17 in respect of the income of Rs.4,38,57,500/- be given credit in A.Y 2015-16 was rejected on the ground that the status of the assessment for A.Y 2016-17 in which the assessee offered capital gain and paid taxes is not known and not before the Panel. It is the submission of the learned Counsel for the assessee that the amount of Rs.1,00,07,393/- is as per the 26AS and 140A tax paid in A.Y 2016-17 which is verifiable and since the income has been preponed to A.Y 2015-16, therefore, the corresponding taxation credit also should be given. 31. We find the Delhi Bench of the Tribunal in the case of Interglobe Enterprises (P) Ltd (Supra) while dealing with an identical issue has observed as under: 5. We have carefully considered the rival submissions. It is the case of the assessee that when the issue of availability of TDS credit in the appropriate assessment year is examined in the light of Section 199(3) r.w. Rule 37BA(3) of the Income Tax Rules, it would be clear that credit for tax deducted at source and paid to the Central Government, shall be given for the assessment year for wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer shall grant the TDS credit in terms of observations made hereinabove. With these observations, the impugned order of the CIT(A) is set aside and restore back to the file of the Assessing Officer for grant of credit in accordance with law. 8. In the result, the appeal of the assessee is allowed for statistical purposes. 32. Respectfully following the decision of the Delhi Bench of the Tribunal (cited supra) we restore the issue to the file of the Assessing Officer with a direction to verify the record and if any other benefit is not claimed by the assessee in respect of the amount of tax of Rs.1,00,07,393/- paid in A.Y 2016-17, in respect of the income of Rs.4,38,57,500/- then allow the credit of the same for the A.Y 2015-16. Needless to say, the Assessing Officer shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. We hold and direct accordingly. Ground of appeal No.4 raised by the assessee is accordingly allowed for statistical purposes. 33. In the result, appeal filed by the assessee is partly allowed for statistical purposes. Order pronounced in the Open Court on 26th December, 2022. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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