INCOME TAX OFFICER 25(3)(3), MUMBAI V. RADHAKRISHNA G KHATRI HUF, MUMBAI

ITA 1149/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0652 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 28-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R KAVITHA
• Keywords: Tax effect; Set aside; Capital Gains
• Section: 201

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) & SHRI RAVISH SOOD (JM) I.T.A. NO. 1149 /MUM/ 201 8 (ASSESSMENT YEAR 20 1 0 - 0 9 ) ITO - 25(3)(3) ROOM NO. 606 C - 10, 6 TH FLOOR PRATYAKSHKAR BHAVAN BANDRA KURLA COMPLEX BANDRA EAS T MUMBAI - 400 051. V S . M/S. RADHAKRISHNA G. KHATRI HUF SUNDER SMRUTI 1 ST FLOOR, JVPD SCHEME 5 TH ROAD, VILE PARLE(W) MUMBAI - 400 057. PAN : AAFHR0238C ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY NONE DEPARTMENT BY MS. R. KAVITHA DATE OF HEARING 13 . 9 . 201 9 DATE OF PRONOUNCEMENT 17 . 9 . 201 9 O R D E R PER SHAMIM YAHYA (AM) : - THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A) DATED 11.12.2017 AND PERTAINS TO A.Y. 2010 - 11. 2. THE GROUNDS OF APPEAL READ AS UNDER : - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED TO CONSIDER THE FACT THAT THE ASSESSEE HAS TRANSFERRED HIS TENANCY RIGHTS TO THE BUILDER WITHIN THE MEANING OF SECTION 2(47) OF THE INCOME TAX ACT, 1961 AND TRANSFE R OF THE SAME CALLS FOR THE COMPUTATION OF CAPITAL GAINS.' 2. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. . CIT(A) HAS ERRED TO CONSIDER THE FACT THE ASSESSEE HAS NOT ONLY SELLING AND TRANSFERRING OR EXCHANGING THE ASSET BUT ALS O EXTINGUISHING HIS RIGHTS AND INTEREST IN THEIR OLD PROPERTY BY ENTERING INTO TWO AGREEMENT AND THEREBY ALLOWING THE POSSESSION OF THE FLAT TO THE BUILDER AFTER RECEIVING MONEY, A CONTRACT OF A NATURE REFERRED TO IN THE SECTION 53A OF THE TRANSFER OF PROP ERTY ACT, 1982.' 3. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD, CIT(A) HAS ERRED TO CONSIDER THAT FACT THE ASSESSEE HIMSELF CLAIMED THE TRANSACTION BEFORE THE AO AS TRANSFER AND CLAIMED EXEMPTION U/S. 54/54F RADHAKRISHNA G. KHATRI HUF 2 DURING THE ASSESSMEN T PROCEEDINGS AS HE HAD NOT CLAIMED IT IN THE RETURN OF INCOME FILED AND WAS BEYOND THE PERIOD OF THREE YEARS AND THE CLAIM OF THE ASSESSEE WAS NOT ALLOWED.' 4. ''ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED TO CO NSIDER THE FACT THAT THE ASSESSEE RECEIVED FROM THE BUILDER FUNDS AMOUNTING TO RS. 23,65,972/ - WHICH FORMS PART OF THE COMPENSATION RECEIVED AGAINST TRANSFER OF TENANCY RIGHTS AND THE SAME HAS TO BE CONSIDERED FOR CAPITAL GAINS.' 5. 'THE APPELLANT PRAYS T HAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED.' 3. AT THE OUTSET, WE NOTE THAT THE TAX EFFECT IN THIS CASE IS BELOW THE LIMIT FIXED BY THE CBDT FOR FILING THE APPEAL BEFORE THE INCOME TAX APPEL LAT E TRIBUNAL VIDE LATEST CBDT CIRCULAR NO. 17/2019 DATED 8.8.2019. LEARNED DEPARTMENTAL REPRESENTATIVE HAS NOT BEEN ABLE TO POINT OUT THAT PRESENT APPEAL WAS IN ANY OF THE EXCEPTIONS CARVED OUT IN THE SAID CIRCULAR. ACCORDINGLY, THIS APPEAL IS DISMISSED O N ACCOUNT OF TAX EFFECT AS NOT MAINTAINABLE. 4. IN THE RESULT, THIS APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 17 . 9 . 201 9 . SD/ - SD/ - ( RAVISH SOOD ) (SH A MIM YAHYA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 17 / 9 / 20 1 9 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI