Latest Expert Exchange Queries
sitemapHome | Registration | Job Portal for CA's | Expert Exchange | Currency Converter | Post Matrimonial Ads | Post Property Ads
 
 
News shortcuts: From the Courts | News Headlines | VAT (Value Added Tax) | Service Tax | Sales Tax | Placements & Empanelment | Various Acts & Rules | Latest Circulars | New Forms | Forex | Auditing | Direct Tax | Customs and Excise | ICAI | Corporate Law | Markets | Students | General | Indirect Tax | Mergers and Acquisitions | Continuing Prof. Edu. | Budget Extravaganza | Transfer Pricing
 
 
 
 
Popular Search: VAT Audit :: form 3cd :: ACCOUNTING STANDARDS :: empanelment :: TDS :: articles on VAT and GST in India :: list of goods taxed at 4% :: ICAI offer Get Windows 7,Office 2010 in Rs.799 Taxes :: cpt :: ACCOUNTING STANDARD :: VAT RATES :: Central Excise rule to resale the machines to a new company :: due date for vat payment :: ARTICLES ON INPUT TAX CREDIT IN VAT :: TAX RATES - GOODS TAXABLE @ 4%
 
 
From the Courts »
  Micro Spacematrix Solution P Ltd vs. ITO (ITAT Delhi)
 Micro Spacematrix Solution P Ltd vs. ITO (ITAT Delhi)
 CIT vs. Greenfield Hotels & Estates Pvt. Ltd (Bombay High Court)
 IndiaBulls Financial Services Ltd vs. DCIT (Delhi High Court)
 Maharao Bhim Singh of Kota vs. CIT (Supreme Court)
 Ravneet Takhar Vs. Commissioner Of Income Tax Ix And Ors.
 Jaiprakash Associates Ltd. Vs. Commissioner Of Income Tax
 Formula One World Championship Limited Vs. Commissioner Of Income Tax, International Taxation-3 And Anr.
 Commissioner Of Income Tax International Taxation-3 Delhi Vs. Formula One World Championship Ltd. And Anr.
 Reliance Communications Ltd vs. DDIT (ITAT Mumbai)
  Sushila Devi vs. CIT (Delhi High Court)

Seagull Capital Services Pvt Ltd, 5, Balkrishna Chamber, 1st Floor, , Issaji Street, Mumbai-400003 Vs. Income Tax Officer, 7(2)(2), 6th floor, Aayakar Bhavan, M K Road, Mumbai-400020
July, 15th 2014
                     ,                  ""          
       IN THE INCOME TAX APPELLATE TRIBUNAL "E" BENCH, MUMBAI

BEFORE HON'BLE S/SHRI H.L. KARWA, PRESIDENT AND B.R.BASKARAN (AM)
         .. ,                                .. ,   
                       ./I.T.A. No.6466/Mum/2012
                    (   / Assessment Year :2009-10 )


  Smt.Sanjay Sudhir Kambli             /        Income Tax Officer, Ward 21
  Red House, Opp. IIT Market,          Vs.      (3)(2),
  Padmavati Society, Powai,                     Mumbai
  Mumbai-400076.
        ( /Appellant)                  ..       (    / Respondent)

           . /   . /PAN/GIR No. : AAAPPK3272R



             / Appellant by                 :   Shri Pramod Kumar Parida
               /Respondent by :                 Shri Prakash L Padhade



              / Date of Hearing
                                                    : 10.7.2014
             /Date of Pronouncement : 10.7.2014


                                    / O R D E R


 Per B.R.BASKARAN, Accountant Member:

       The appeal filed by the assessee is directed against the order dated

 16.07.2012 passed by Ld CIT(A)-32, Mumbai and it relates to the assessment

 year 2009-10.


 2.   The assessee is in appeal before us in respect of the following issues:-

                 (a) Rejection of claim of Long term capital gain arising on sale of
                     a house and consequential rejection of claim for deduction u/s
                     54 of the Act.

              (b) Disallowance of foreign travel expenses.

              (c) Validity of charging interest.
                                        2                     I.T.A. No.6466/Mum/2012




3.    The facts relating to the case are stated in brief. The assessee sold flats

located at No.201 & 202, B-Wing, Bldg. No.4, Lake Palace CHS, Powai

(hereinafter "Original asset") and claimed the capital gain arising thereon as

Long term Capital gains. The assessee had purchased a new house and claimed

the cost of new house as deduction u/s 54 of the Act. The AO noticed that the

original asset was purchased on 12.09.2005 and they were sold on 16.07.2008.

Thus the AO noticed that the assessee had held the original asset for a period of

2 years and 10 months only, i.e., less than three years and accordingly held that

the gain arising on sale of flats shall constitute "Short term Capital gains" only.

Accordingly, he assessed the gains arising on sale of flats as Short term capital

gain and accordingly rejected the claim for deduction u/s 54 of the Act, since the

said deduction is available against Long term Capital gain.





3.1   The assessee was an employee of a foreign company named M/s Egyptian

International Free Zone Co., Alexandria from which he received salary. He was

also the proprietor of a concern named M/s Trident Marketing doing business in

Mumbai. In the Profit and Loss account, he claimed a sum of Rs.6,66,592/- as

foreign travel expenses from Egypt to India and vice versa on several occasions.

The AO took the view that the assessee has incurred foreign travel expenses for

visiting his family in India and accordingly treated the foreign travel expenses as

purely personal in nature. Accordingly, he disallowed the said expenses.
                                        3                   I.T.A. No.6466/Mum/2012



4.    The assessee challenged the assessment order by filing appeal before Ld

CIT(A), but could not succeed. Aggrieved, the assessee has filed this appeal

before us.


5.     The ld Counsel appearing for the assessee Shri Pramod Kumar Parida

submitted that the tax authorities have taken the view that the assessee has

held the asset for less than three years by recognizing the date of Sale

agreement. He submitted that the assessee did not hand over the possession of

the property on the date of agreement and he handed over the same only on

22.9.2008 after receipt of full amount of consideration and also after completion

of all formalities. Accordingly he submitted that the tax authorities have wrongly

recognized the date of agreement as the date of sale / date of handing over of

possession, which is against the facts prevailing in the instant case.          He

submitted that the assessee has gathered certain additional evidences to support

its stand and accordingly prayed that the assessee may be given an opportunity

to produce the same before the tax authorities. With regard to the foreign travel

expenses, the Ld A.R submitted that the assessee was wrong in presuming that

the assessee has incurred those expenses in connection with family trips. He

submitted that the assessing officer has ignored the fact the assessee has carried

on business in India and has declared income from there from. He submitted

that the AO, while accepting the business income, should not have singled out

the foreign travel expenses alone to take adverse decision against the assessee.

He submitted that the assessee may be given one more opportunity to make its

submissions on this issue also. With regard to the ground relating to charging of
                                        4                   I.T.A. No.6466/Mum/2012



interest, the Ld A.R admitted that the charging of interest is consequential in

nature.


6.     On the contrary, the ld D.R objected to the plea made by the Counsel for

the assessee and strongly supported the order passed by Ld CIT(A).


7.     We have heard the rival contentions and carefully perused the record. With

regard to the first issue relating to the nature of capital gain arising on sale of

flats, we notice that the tax authorities have recognized the date of sale

agreement for determining the nature of capital gain. It is pertinent to note that

the sale consideration was fixed by the Stamp authorities at Rs.73,68,800/- as

against the value of Rs.50.00 lakhs shown in the sale agreement. Hence, the AO

has adopted the sale consideration at Rs.73,68,800/- in terms of sec. 50C of the

Act.      However, it appears that the tax authorities have not considered the

covenants of the sale agreement. According to Ld A.R, the assessee did not

hand over the possession on the date of execution of the Sale agreement, but

has given the same only subsequently. In this regard the Ld A.R submitted that

the assessee is gathering certain additional evidences including confirmation

from the purchasers to prove this fact and accordingly sought an opportunity. A

perusal of the covenants of agreement prima facie supports the submissions

made by the Ld A.R. However, in our view, the said submissions require proper

verification. Accordingly, we find merit in the plea made by Ld A.R. Accordingly,

we set aside the order of ld CIT(A) on this issue and restore the same to the file

of the assessing officer with the direction to examine this matter afresh by duly

considering the materials and explanations that may be furnished by the

assessee and take appropriate decision in accordance with the law.
                                        5                     I.T.A. No.6466/Mum/2012







8.    In respect of the foreign travel expenses, the contention of the Ld A.R was

that the tax authorities have made the disallowance on presumptions. According

to the counsel, the assessee would be in a position to prove the business

exigencies in undertaking the travel if one more opportunity is given to the

assessee. On this issue also, we are of the view that the assessee may be given

one more opportunity in the interest of natural justice. Accordingly, we set aside

the order of ld CIT(A) on this issue and restore the same to the file of the AO

with the direction to examine this matter afresh by duly considering the materials

and explanations that may be furnished by the assessee and take appropriate

decision in accordance with the law.



9.    In the result, the appeal filed by the assessee is treated as allowed for

statistical purposes.


       The above order was pronounced in the open court on 10th July, 2014.


            10th July, 2014    

          Sd                                             sd

(.. / H.L. KARWA)                            (..  ,/ B.R. BASKARAN)
  / PRESIDENT                                  /Accountant Member

            th
  Mumbai: 10 July,2014.


. ../ SRL , Sr. PS
                            6               I.T.A. No.6466/Mum/2012




        /Copy of the Order forwarded to :
1.  / The Appellant
2.  / The Respondent.
3.     () / The CIT(A)- concerned
4.      / CIT concerned
5.      ,     ,                   /
     DR, ITAT, Mumbai concerned
6.     / Guard file.
                                              / BY ORDER,
          True copy
                                        (Asstt. Registrar)
                              ,   /ITAT, Mumbai

 
 
Home | About Us | Terms and Conditions | Contact Us
Copyright 2016 CAinINDIA All Right Reserved.
Designed and Developed by Binarysoft Technologies Pvt. Ltd.
Binarysoft Technologies - Our Mission

Transfer Pricing | International Taxation | Business Consulting | Corporate Compliance and Consulting | Assurance and Risk Advisory | Indirect Taxes | Direct Taxes | Transaction Advisory | Regular Compliance and Reporting | Tax Assessments | International Taxation Advisory | Capital Structuring | Withholding tax advisory | Expatriate Tax Reporting | Litigation | Badges | Club Badges | Seals | Military Insignias | Emblems | Family Crest | Software Development India | Software Development Company | SEO Company | Web Application Development | MLM Software | MLM Solutions