2015 (4) TMI 433 - AT - Income Tax

Tribunal affirms capital gains computation for residential property sale, includes 'Malwa' sale amount.

ACIT Versus Shri Vipin Arora

The Tribunal upheld the Ld. CIT(A)'s order in a case concerning the computation of capital gains from the sale of a residential property. The decision ... Computation of capital gain - actual cost incurred by the assessee for the acquisition of the property has to be taken for computing capital gain and part of it cannot be disallowed on the basis that construction is demolished before sale as held by CIT(A) - Held that:- Considerable cogency in the finding of the CIT(A) wherein held that the demolition of building was a part of the process of land transaction and, hence, the cost of property was the actual cost incurred by the assessee for purchasing the land along with the building. Therefore, he held that the assessee has claimed cost of acquisition correctly which is to be allowed in full. Ld. CIT(A) also noted that there is no authentic evidence that sale of Malwa was only for ₹ 1,30,000/- and noted that in this behalf assessee’s own affidavit is self serving and therefore, observed that in the absence of any authentic evidence, he held that sale consideration for Malwa requires to be estimated and accordingly, estimated the said consideration at ₹ 2.75 lacs which should be added to the consideration disclosed ₹ 24 lacs. We find force in the Ld. CIT(A)’s computation which read Total sale consideration [As per registered deed dated 3.2.07 + sale consideration of ‘Malwa’ (Rs. 24,00,000 + ₹ 2,75,000/-) ₹ 26,75,000/- LESS Cost of acquisition as per registered deed dated 17.5.06 ₹ 23,70,020/- = SHORT TERM CAPITAL GAIN ₹ 3,04,980/- - Decided against revenue. Issues Involved:1. Computation of Capital Gain.2. Consideration of Cost of Acquisition.3. Treatment of Sale of 'Malwa'.4. Application of ITAT Hyderabad's Decision in Dr. Maya Shenoy vs. ACIT.5. Validity of the Order of Ld. CIT(A).Detailed Analysis:1. Computation of Capital Gain:The primary issue revolves around the correct computation of capital gains arising from the sale of a residential property. The assessee declared a net short-term capital gain of Rs. 29,980, while the AO computed the income at Rs. 22,00,241. The Tribunal upheld the Ld. CIT(A)'s computation, which considered the total sale consideration, including the sale of 'Malwa', and the cost of acquisition as per the registered deed.2. Consideration of Cost of Acquisition:The assessee claimed the cost of acquisition at Rs. 23,70,020 based on the purchase deed. The AO disallowed part of this cost, arguing that the construction was demolished before the sale. However, the Ld. CIT(A) observed that the actual cost incurred for acquiring the property should be considered, regardless of the demolition. The Tribunal concurred, emphasizing that the demolition was part of the land transaction process.3. Treatment of Sale of 'Malwa':The AO treated the sale of 'Malwa' (debris from demolished construction) separately under 'Income from Other Sources', while the Ld. CIT(A) and the Tribunal held that it should be included in the total sale consideration of the property. The Tribunal noted that the sale of 'Malwa' was intricately linked to the sale of the vacant plot and should not be taxed under a different head.4. Application of ITAT Hyderabad's Decision in Dr. Maya Shenoy vs. ACIT:The Ld. CIT(A) referred to the ITAT Hyderabad decision, which dealt with the transfer of property under a development agreement. The Tribunal agreed with the Ld. CIT(A)'s application of this principle, noting that the demolition of the building was part of the property transaction, and the cost of acquisition should include the entire amount paid for the property, including the building that was later demolished.5. Validity of the Order of Ld. CIT(A):The Revenue challenged the Ld. CIT(A)'s order, arguing it was erroneous in law and facts. However, the Tribunal found the Ld. CIT(A)'s order well-reasoned and upheld it, dismissing the Revenue's appeal. The Tribunal agreed with the Ld. CIT(A)'s computation of short-term capital gain at Rs. 3,04,980, which included the estimated sale consideration for 'Malwa' at Rs. 2.75 lakhs.Conclusion:The Tribunal dismissed the Revenue's appeal, upholding the Ld. CIT(A)'s order. The judgment emphasized the inclusion of the entire cost of acquisition and the sale consideration of 'Malwa' in computing the capital gain, aligning with the principles established in the ITAT Hyderabad decision. The Tribunal found no reason to interfere with the Ld. CIT(A)'s well-reasoned order.