Alok Awasthi, Lucknow vs Department Of Income Tax

BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA No.711/LKW/2014 Assessment year:2009-10 A.C.I.T., Range - V, Vs. Sri Alok Awasthi, Lucknow. 13/6 - A, G. G. Enclave, Mall Avenue, Lucknow - 226018. PAN:ADNPA7103J (Appellant) (Respondent) Appellant by Shri C. P. Singh, D.R. Respondent by Sri Pankaj Bhargav, C.A. Date of hearing 18/12/2014 Date of pronouncement 16/01/2015 ORDER PER A. K. GARODIA, A.M.

This is revenue's appeal directed against the order passed by learned CIT(A), II Lucknow dated 30/05/2014 for assessment year 2009-10.

2. The grounds raised by the revenue are as under:

1. That the Learned Commissioner of Income Tax (Appeals) Lucknow has erred in law and on facts of the case in deleting the addition of Rs. 23,75,000/-made on account of income from other sources ignoring the fact that no transfer of land or transfer of ownership in land took place. The assessee has granted very limited rights of construction of building and subsequent sale or lease.

2. That the Learned Commissioner of Income Tax (Appeals) Lucknow has erred in law and on facts of the case in allowing the claim of exemption u/s 54F of the Income Tax Act, 1961 without appreciating the fact that since no transfer of long term capital asset took place therefore the claim of exemption u/s 54F does not arise.

3. That the appellant craves leave to add or amend any one or more of the grounds of appeal, as stated above, as and when need to do so arises with the permission of the court.

3. Learned DR of the revenue supported the assessment order. Learned AR of the Assessee supported the order of learned CIT (A).

4. We have considered the rival submissions and the materials on record and the orders of the authorities below. We find that it is noted by the A.O. in the assessment order that the assessee has shown long term capital gain of 2

Rs. 16,79,488/- by showing sale consideration at Rs. 23,75,000/- and indexed cost of acquisition of land at Rs. 695,511/-. In this regard, the A.O. noted that the land on which the proposed three storied building is to be constructed belonged to the assessee. He also noted that as per him, right in land has not been transferred. On this basis , he concluded that there is no capital gain and this receipt of Rs. 23,75,000/- is taxable as income from other sources. This issue is decided by learned CIT (A) in favour of the assessee on this basis that the right to construct being FSI on the land owned by the assessee was one of the valuable rights embedded in the bundle of rights arising out of ownership of capital asset being land owned by the assessee. He concluded that the transaction in question represents transfer of capital asset being transfer of valuable right to construct on the land owned by the assessee. He directed the A.O. to tax the income as Long Term capital gain after allowing deduction of indexed cost as claimed by the assessee and to allow deduction u/s 54 F also along with set off of Short term capital loss of Rs. 275,305.51. Considering the facts of the present case in its entirety, we do not find any infirmity in the order of learned CIT (A) on any issue. We, therefore, decline to interfere.

5. In the result, the appeal of revenue is dismissed.

(Order was pronounced in the open court on the date mentioned on the caption page)

Sd/. Sd/.

(SUNIL KUMAR YADAV) ( A. K. GARODIA ) Judicial Member Accountant Member

Dated:16/01/2015. *C.L.Singh

Copy of the order forwarded to : 1. The Appellant 2. The Respondent. 3. Concerned CIT 4. The CIT(A) 5. D.R., I.T.A.T., Lucknow Asstt. Registrar