2012 (8) TMI 697 - AT - Income Tax

Appeal partially allowed with instructions for AO to reconsider issues. Emphasis on evidence and documentation. Remanded for further consideration.

The appeal was partly allowed for statistical purposes, with specific instructions for the AO to reconsider certain issues based on the Tribunal's ... Capital gain – date of acquisition - deduction of section 54EC – Held that:- Period of holding a capital asset should be deemed to include the period for which the asset was held by the previous owner of the property referred in the Sub-sec.(1) of Sec.49 of the Act - none of the authorities below considered the matter in the light of the provisions of section 49(1) – matter remanded Disallowance of Municipal tax, Govt.conversion fee and Mandal Development cess tax as cost of improvement – Held that:- Expenses claimed as cost of improvements are Municipal tax, Land conversion and Mandal development cess tax, which cannot be said to be expenditure incurred for the improvement of or addition to the asset. Municipal tax is revenue in nature to be paid year after year, whereas the Govt. Conversion fine and Mandal Development cess tax are levied by the local authority for converting the land and develop the area, where the property is located - expenses also cannot be said to be for the additions or for the improvement of the asset - assessee’s appeal is partly allowed for statistical purposes Issues Involved:1. Maintainability of the impugned addition.2. Cost inflation indexation for inherited land.3. Disallowance of business expenditure.4. Computation of capital gains on inherited property.5. Deduction of municipal tax, government conversion fee, and Mandal development cess.6. Levy of interest under sections 234B and 234D.Issue-wise Detailed Analysis:1. Maintainability of the Impugned Addition:The appellant contended that the impugned addition sustained by the CIT(A) is not maintainable in law. However, this ground was considered general in nature and did not require adjudication.2. Cost Inflation Indexation for Inherited Land:The appellant argued that for inherited land from her husband, the cost inflation indexation should be considered from 1985-86 (or 1991-92 as per additional grounds), the year when her husband originally owned the land. This claim was based on Sec. 2(42A) read with Sec. 49 of the Income Tax Act. The Tribunal found that the AO and CIT(A) did not consider the issue in accordance with Sub-sec. 1 of Sec. 49. The Tribunal remanded the issue back to the AO to reconsider it after examining the documents produced by the appellant to support her claim that the property devolved on her after her husband's death. The AO was instructed to consider 1991-92 as the period of acquisition and compute the capital gain accordingly if the property was indeed inherited.3. Disallowance of Business Expenditure:The appellant had claimed Rs. 11,77,019/- as business expenditure, which was partly disallowed by the AO and CIT(A) due to lack of proper vouchers and potential personal expenditure. The Tribunal agreed with the appellant that certain expenses like electrical repairs, packing materials, factory maintenance, etc., cannot involve personal expenditure and should not be disallowed without specific evidence. However, for expenses like telephone charges, traveling, and office expenses, the Tribunal upheld the 10% disallowance as they might involve personal expenditure.4. Computation of Capital Gains on Inherited Property:The appellant contended that the capital gains computation should consider the acquisition date as 1991-92, the year her husband acquired the property, rather than 2002-03, when she inherited it. The Tribunal agreed with the appellant's interpretation of Sec. 49(1) and remanded the issue to the AO to reconsider the computation of capital gains, giving the benefit of indexed cost of acquisition from 1991-92 if the property was inherited.5. Deduction of Municipal Tax, Government Conversion Fee, and Mandal Development Cess:The appellant claimed these expenses as part of the cost of improvement for the Arradhalli land. The Tribunal upheld the AO and CIT(A)'s decision, stating that these expenses are not for the improvement or addition to the asset but are either revenue in nature or levied for converting the land and developing the area. Hence, they are not allowable as cost of improvement.6. Levy of Interest under Sections 234B and 234D:This ground was considered consequential in nature. The Tribunal directed the AO to give consequential relief to the appellant if applicable.Conclusion:The appeal was partly allowed for statistical purposes, with specific instructions for the AO to reconsider certain issues based on the Tribunal's findings. The Tribunal emphasized the need for proper documentation and evidence to support the appellant's claims.