SURUCHI SAREE MANDIR, MUMBAI V. ITO 14(1)-3, MUMBAI

ITA 1118/MUM/2011

• Counselvise Citation: 111819914 RSA 2011
• Duration Of Justice: 3 year(s) 1 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 19-03-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 07-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PITAMBER DAS
• Keywords: Sale consideration of property below Jantri Value; Capital asset
• Section: 143(3); 50C

Judgement Text

, ,P ,P,P ,P INCOME TAX APPELLATE TRIBUNAL,MUMBAI - H BENCH. , ! ! ! ! '# '# '# '# , BEFORE S/SH. RAJENDRA,ACCOUNTANT MEMBER & AMIT SHUK LA,JUDICIAL MEMBER /. ITA NO.1118/MUM/2011, $ $ $ $ % % % % / ASSESSMENT YEAR-2007-08 SURUCHI SAREE MANDIR 95-PARIJAT, MARINE DRIVE, MUMBAI-400002 VS ITO 14(1)-3, EARNEST HOUSE, MUMBAI. PAN: AABFS2996J ( &' / APPELLANT) ( ()&' / RESPONDENT) $*! $*! $*! $*! + + + + / ASSESSEE BY : NONE , + / REVENUE BY : SHRI PITAMBER DAS $ $ $ $ , ,, , !- !- !- !- / DATE OF HEARING : 19-03-2014 ./% , !- / DATE OF PRONOUNCEMENT : 19-03-2014 $ $ $ $ , 1961 , ,, , 254 )1( !0! !0! !0! !0! ' ' ' ' ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM $ $ $ $ : CHALLENGING THE ORDER DT.28.12.2010 OF THE CIT(A)-2 5,MUMBAI,ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ; SECTION 50C-RS.233,689/- 1) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER BY CONFIRMING ADDITION TO SHORT TERM CAPITA L GAIN UNDER SECTION 50C OF THE ACT WITHOUT CONSIDERI NG THE FACT THAT THE SECTION 50C OF THE ACT, DOES NOT APPLY TO DEPRECIABLE ASSETS AND RELYING ONLY ON STAMP VALUATION WITHOUT PUTTING ON RECORD ANY POSITIVE EVIDENCE OF HIGHER SALE CONSIDERATION. 2) ON A PROPER INTERPRETATION OF SECTION 48, 50 AND 50C OF THE INCOME TAX ACT, 1961, WAS THE ASSESSING OFFICER RIGHT IN LAW IN APPLYING SECTION 50C TO CAPITAL ASSETS COVERED BY SECTION 50 (DEPRECIABLE ASSETS) AND IN COMPUTING THE CAPITAL G AINS ON THE SALE OF DEPRECIABLE ASSETS BY ADOPTING THE STAMP DUTY VALUATION? INTEREST- RS.2,78,752/- 3) ERRED IN CONFIRMING THE DISALLOWANCES OF RS. 2,7 8,752/- ON ACCOUNT OF INTEREST BEARING FUND DIVERTED TO NON BUSINESS PURPOSE OUT OF INTEREST EX PENSES OF RS. 731,048/- WITHOUT APPRECIATING THE FACT THAT THE LEARNED ASSESSING OFFICER HAS NOT EST ABLISHED ANY NEXUS BETWEEN INTEREST BEARING FUNDS UTILIZED FOR INTEREST FREE FUNDS LOANS & ADVANCES; THE APPELLANT CRAVES, TO CONSIDER EACH OF THE ABOVE GROUNDS OF APPEAL WITHOUT PREJUDICE TO EACH OTHER AND CRAVES LEAVE TO ADD, ALTER, DELETE OR MODIFY ALL OR ANY OF THE ABOVE GROUNDS OF APPEAL. 2. ASSESSEE-FIRM, DEALING IN PURCHASE AND SALES OF SAR EES,FILED ITS RETURN OF INCOME ON 24.09.2007 DECLARING TOTAL INCOME AT RS. 1.12 LACS.AO FINALISE D THE ASSESSMENT,ON 20.12.209,U/S. 143(3) OF THE ACT,DETERMINING THE INCOME OF THE ASSESSEE AT R S.6.24 LACS.DURING THE ASSESSMENT PROCEEDINGS AO FOUND THAT THE ASSESSEE HAD SHOWN SHORT TERM CAP ITAL GAINS (STCG) ON SALE OF FLAT AT RS. 2 ITA NO. 1118/MUM/2011 SURUCHI SAREE MANDIR. 3.36 LACS.INVOKING THE PROVISIONS OF SECTION 50C(3) OF THE ACT, HE RECALCULATED THE CAPITAL GAINS. AO ALSO FOUND THAT ASSESSEE HAD DEBITED RS. 7.31 LA CS UNDER THE HEAD INTEREST EXPENSE.HE MADE ADDITION OF RS.2.78 LACS TO THE INCOME OF THE ASSES SEE, AS HE WAS OF THE OPINION THAT INTEREST BEARING FUNDS WERE DIVERTED FOR NON BUSINESS PURPOS ES. 3 .ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPE LLATE AUTHORITY (FAA). AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE HE DISMISSED THE APPEAL FILED BY IT. MATTER WAS FIXED FOR HEARING FROM TIME TO TIME. ON 23.01.2014 NOBODY APPEARED ON BEHA LF OF THE ASSESSEE. A HEARING NOTICE WAS SENT BY REGISTERED POST TO THE ADDRESS GIVEN BY THE ASSE SSEE IN FORM NO.36.IT WAS MENTIONED IN THE NOTICE THAT CASE WILL BE HEARD ON 19.03.2014. NOTIC E WAS RECEIVED BY THE ASSESSEE ON 03.02.2014. DURING THE COURSE OF HEARING BEFORE US, NOBODY APPE ARED ON BEHALF OF THE ASSESSEE NOR WAS ANY LETTER FILED FOR ADJOURNING THE CASE. 4. WE HAVE PERUSED THE MATERIAL AVAILABLE ON THE RECO RD. WE FIND THAT FAA HAS PASSED A REASONED ORDER DEALING ALL THE ISSUES RAISED BY THE ASSESSEE -FIRM.THEREFORE, CONFIRMING HIS ORDERS,WE DECIDE GROUND NO. 1 AND 2 AGAINST THE ASSESSEE. AS A RESULT,APP EAL FILED BY THE ASSESSEE STANDS DISMISSED. 1!2 $*! , $ 3 , ! 45. ORDER PRONOUNC ED IN THE OPEN COURT ON 19 TH MARCH, 2014 . ' , ./% 7 8$ 19 EKPZ EKPZ EKPZ EKPZ , 201 4 / , 0 9 SD/- SD/- ( ! '# / AMIT SHUKLA) ( / RAJENDRA) / JUDICIAL MEMBER /ACCOUNTANT MEMBER / MUMBAI, 8$ /DATE: 19 TH MARCH,2014. SK ' ' ' ' , ,, , (!: (!: (!: (!: ;:%! ;:%! ;:%! ;:%! / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / &' 2. RESPONDENT / ()&' 3. THE CONCERNED CIT(A)/ < = , 4. THE CONCERNED CIT / < = 5. DR H BENCH, ITAT, MUMBAI / :>0 (!$ ,P ,P,P ,P , . . . 6. GUARD FILE/ 0 1 ):! ):! ):! ):! (! (!(! (! //TRUE COPY// '$ / BY ORDER, ? / 4 DY./ASST. REGISTRAR , /ITAT, MUMBAI