V.S.Rajkumar, CHENNAI V. ITO, CHENNAI

ITA 1133/CHNY/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8198 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-10-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 27-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: T BANUSEKAR
• Keywords: Reasonable cause
• Section: 54F

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , . !'# ! , % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.1133/MDS/2016 ( )( / ASSESSMENT YEAR : 2007-08 SHRI V.S. RAJKUMAR, NO.52, BHEEMANNA MUDALI GARDEN STREE T, ALWARPET, CHENNAI - 600 018. PAN : ACLPR 7261 H V. THE INCOME TAX OFFICER, BUSINESS WARD X(4), CHENNAI. (+,/ APPELLANT) (-.+,/ RESPONDENT) +, / 0 / APPELLANT BY : SH. T. BANUSEKAR, CA -.+, / 0 / RESPONDENT BY : SHRI SUPRIYO PAL, JCIT 1 / 2% / DATE OF HEARING : 03.10.2016 3') / 2% / DATE OF PRONOUNCEMENT : 28.10.2016 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) IV, CHEN NAI, DATED 08.09.2014 AND PERTAINS TO ASSESSMENT YEAR 2007-08. 2 I.T.A. NO.1133/MDS/16 2. SH. T. BANUSEKAR, THE LD. REPRESENTATIVE FOR THE ASSESSEE, SUBMITTED THAT THERE WAS A DELAY OF 505 DAYS IN FIL ING THE APPEAL BEFORE THIS TRIBUNAL. ACCORDING TO THE LD. REPRESE NTATIVE, THE ASSESSEE CLAIMS DEDUCTION UNDER SECTION 54F OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). HOWEVER, THE ASSES SING OFFICER DISALLOWED THE CLAIM OF THE ASSESSEE ON THE GROUND THE ASSESSEE WAS HAVING MORE THAN ONE HOUSE. REFERRING TO THE O RDER OF THE COMMISSIONER OF WEALTH TAX (APPEALS), FOR THE ASSES SMENT YEAR 2007-08, THE LD. REPRESENTATIVE SUBMITTED THAT IN T HE WEALTH-TAX PROCEEDING, THE VERY SAME PROPERTY AT 52, BEEMANNA MUDALI GARDEN STREET, CHENNAI, WAS TAKEN AS COMMERCIAL ASS ET AND IT WAS EXEMPT FROM WEALTH-TAX ACT. THEREFORE, THE COMMERC IAL ASSET CANNOT BE TAKEN AS HOUSE OF THE ASSESSEE FOR CONSID ERING THE DISALLOWANCE UNDER SECTION 54F OF THE ACT. THE LD. COUNSEL HAS ALSO FILED A LETTER OF TAMIL NADU ELECTRICITY BOARD SHOWING THAT THE BUILDING IN QUESTION IS USED FOR COMMERCIAL PURPOSE . THE LETTER SAID TO BE OBTAINED FROM CORPORATION CHENNAI UNDER RIGHT TO INFORMATION ACT WAS ALSO FILED BEFORE THIS TRIBUNAL TO SHOW THA T THE PROPERTY WAS USED FOR COMMERCIAL PURPOSE. IN VIEW OF THESE FACT S, ACCORDING TO THE LD. REPRESENTATIVE, THERE WAS REASONABLE CAUSE ON THE PART OF THE ASSESSEE IN NOT FILING APPEAL BEFORE THIS TRIBU NAL. 3 I.T.A. NO.1133/MDS/16 3. REFERRING TO THE PETITION FOR CONDONING THE DELA Y, THE LD. REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE COULD NOT FILE APPEAL IN TIME. WHEN THE ASSESSEE MET SHR I P.S. PRABHAKAR, CHARTERED ACCOUNTANT, IN CONNECTION WITH PENALTY PROCEEDINGS, IT WAS BROUGHT TO HIS NOTICE THAT AN A PPEAL AGAINST THE ORDER OF THE CIT(APPEALS) WAS NOT FILED BEFORE THIS TRIBUNAL EVEN THOUGH THE SAME PROPERTY WAS TREATED AS COMMERCIAL PROPERTY IN WEALTH-TAX PROCEEDING. THEREFORE, ACCORDING TO THE LD. REPRESENTATIVE, THERE WAS A REASONABLE CAUSE ON THE PART OF THE ASSESSEE FOR NOT FILING THE APPEAL WITHIN THE TIME PROVIDED. THE LD. REPRESENTATIVE FURTHER SUBMITTED THAT WHEN THE PROP ERTY WAS TREATED AS COMMERCIAL PROPERTY UNDER THE WEALTH-TAX PROCEED ING, THE SAME PROPERTY CANNOT BE TREATED AS HOUSE PROPERTY UNDER THE INCOME-TAX PROCEEDING. IN VIEW OF THIS CONFLICTING FINDING OF AUTHORITIES BELOW, THE MATTER NEEDS TO BE RESOLVED BY THIS TRIBUNAL, T HEREFORE, THE ASSESSEE HAS A MERIT IN THE APPEAL. HENCE, A LENIE NT VIEW NEEDS TO BE TAKEN FOR CONDONING THE DELAY. 4. WE HAVE HEARD SHRI SUPRIYO PAL, THE LD. DEPARTME NTAL REPRESENTATIVE ALSO. ACCORDING TO THE LD. D.R., TH ERE WAS NO 4 I.T.A. NO.1133/MDS/16 REASONABLE CAUSE FOR NOT FILING THE APPEAL BEFORE T HIS TRIBUNAL WITHIN THE STIPULATED PERIOD, THEREFORE, THE DELAY CANNOT BE CONDONED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THERE WAS A DELAY OF 505 DAYS IN FILIN G THE APPEAL. FROM THE MATERIAL AVAILABLE ON RECORD IT APPEARS TH AT COMMISSIONER WEALTH TAX (APPEALS) BY AN ORDER DATED 26.11.2015, FOUND THAT THE PROPERTY AT 52, BEEMANNA MUDALI GARDEN STREET, CHEN NAI WAS USED FOR BUSINESS OF THE ASSESSEE, THEREFORE, IT IS EXEM PTED FROM THE PURVIEW OF WEALTH TAX ACT. THE ASSESSEE APPEARS TO HAVE ONE SHRI P.S. PRABHAKAR, CHARTERED ACCOUNTANT IN RESPECT OF PENALTY PROCEEDING INITIATED UNDER SECTION 271(1)(C) OF THE ACT. AT THAT TIME IT WAS BROUGHT TO THE NOTICE OF THE ASSESSEE THAT S HRI P.S. PRABHAKAR HAS NOT FILED APPEAL AGAINST THE ORDER OF THE CIT(APPEALS). THEREFORE, THIS TRIBUNAL IS OF THE C ONSIDERED OPINION THAT WHEN THE PROPERTY WAS FOUND TO BE USED IN THE BUSINESS OF THE ASSESSEE UNDER THE WEALTH-TAX PROCEEDING, HOW THE V ERY SAME PROPERTY CAN BE CONSIDERED AS HOUSE PROPERTY WHILE CLAIMING EXEMPTION UNDER SECTION 54F OF THE ACT NEEDS TO BE EXAMINED. SINCE THE ASSESSEE COULD NOT FILE THE APPEAL AGAINS T THE ORDER OF THE 5 I.T.A. NO.1133/MDS/16 CIT(APPEALS) AND THE FACT OF NON-FILING OF THE APPE AL WAS BROUGHT TO THE NOTICE OF THE ASSESSEE BY SHRI P.S. PRABHAKAR, CHARTERED ACCOUNTANT, IN THE COURSE OF PENALTY PROCEEDING UND ER SECTION 271(1)(C) OF THE ACT, THIS TRIBUNAL IS OF THE CONSI DERED OPINION THAT THERE WAS REASONABLE CAUSE ON THE PART OF THE ASSES SEE FOR NOT FILING THE APPEAL WITHIN THE STIPULATED TIME. ACCO RDINGLY, THE DELAY OF 505 DAYS IN FILING THE APPEAL IS HEREBY CONDONED AN D THE APPEAL OF THE ASSESSEE IS ADMITTED. 6. NOW COMING TO THE MERIT OF THE APPEAL, THE ASSES SEE HAS FILED COPIES OF ORDER OF THE COMMISSIONER OF WEALTH TAX (APPEALS)- 14, CHENNAI, THE LETTER OF THE TAMIL NADU ELECTRICI TY BOARD AND ALSO FROM THE CORPORATION OF CHENNAI. THESE DOCUMENTS W ERE NOT AVAILABLE BEFORE THE ASSESSING OFFICER. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RECONSIDERED BY THE ASSESSING OFFICER. ACCORDINGLY, THE ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE AND THE ISSUE OF CLAIM OF EXEMP TION UNDER SECTION 54F OF THE ACT IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE TH E ISSUE AFRESH IN THE LIGHT OF THE MATERIAL AVAILABLE ON RECORD AND T HAT MAY BE FILED BY 6 I.T.A. NO.1133/MDS/16 THE ASSESSEE AND THEREAFTER DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW, AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 28 TH OCTOBER, 2016 AT CHENNAI. SD/- SD/- (. !'# ! ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 28 TH OCTOBER, 2016. KRI. / -267 87)2 /COPY TO: 1. +, /APPELLANT 2. -.+, /RESPONDENT 3. 1 92 () /CIT(A)-IV, CHENNAI 4. 1 92 /CIT-IV, CHENNAI 5. 7: -2 /DR 6. ;( < /GF.