Kalpana Retty, CHENNAI V. ACIT, CHENNAI

ITA 1358/CHNY/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8733 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 20-06-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 17-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: V S JAYAKUMAR
• Keywords: Reopening of assessment
• Section: 143(3); 148; 54

Judgement Text

, / , IN THE INCOME TAX APPELLATE TRIBUNAL , C/SMC BENCH, CHENNAI . , ! BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.1358/MDS/2016 ( / ASSESSMENT YEAR: 2005-06) MRS.KALPANA RETTY, I-34 (OLD NO.I-27), FIRST MAIN ROAD, ANNA NAGAR, CHENNAI - 600 102. VS THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-XIII, CHENNAI. PAN: AACPR3521M ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. V.S.JAYAKUMAR, ADVOCATE /RESPONDENT BY : MR. A.V.SREEKANTH, JCIT /DATE OF HEARING : 20 TH JUNE, 2016 /DATE OF PRONOUNCEMENT : 23 RD AUGUST, 2016 / O R D E R THIS APPEAL IS FILED BY THE ASSESSEE AGGRIEVED BY T HE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS)- 7, CHENNAI DATED 23.03.2016 IN ITA NO.37/CIT(A) -7/2013- 14 PASSED UNDER SECTION143(3) R.W.S. 147 & 250(6) OF THE ACT. 2. THE ASSESSEE HAS RAISED SEVERAL GROUNDS IN HER APPEAL, HOWEVER THE CRUXES OF THE ISSUES ARE AS FOL LOWS:- I) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN SUSTAINING THE ORDER OF THE LEARNED ASSESSING OFFICER WITHOUT CONSIDERING THE GROUND OF VALIDITY OF REOPENING OF ASSESSMENT RAISED BY THE ASSESSEE IN HER GROUNDS OF APPEAL. 2 ITA NO.1358 /MDS/2016 II) THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ORDER OF THE LEARNED ASSESSING OFFICER DENYING THE CLAIM OF DEDUCTION OF ` 5,53,636/- UNDER SECTION 54 OF THE ACT. 3. SINCE THE LEARNED AUTHORIZED REPRESENTATIVE HAS NOT PRESSED THE GROUND RELATED TO REOPENING UNDER SECTI ON 147 & 148 OF THE ACT, THE SAME IS DISMISSED AS NOT PRESSE D. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL FILED HER RETURN OF INCOME ON 01.08.2005 FOR THE ASSESSMENT YEAR 2005-06 ADMITTING INCOME OF ` 15,02,975/-. THE CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSME NT WAS COMPLETED ON 14.12.2007. THEREAFTER, THE ASSESSMEN T WAS REOPENED BY THE LEARNED ASSESSING OFFICER FOR THE R EASON THAT THE ASSESSEE WAS NOT ENTITLED TO CLAIM EXEMPTION OF ` 5,53,636/- UNDER SECTION 54 OF THE ACT AS THE ASSE SSEE HAD PURCHASED THE ASSET ON 28.10.2003 WHICH WAS MUCH BE FORE ONE YEAR FROM THE DATE OF SALE OF THE SAID PROPERTY I.E. ON 15.12.2004. SUBSEQUENTLY THE ASSESSMENT WAS COMPLE TED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT ON 28.03 .2013 WHEREIN THE CLAIM OF EXEMPTION OF ` 5,53,636/- UNDER SECTION 3 ITA NO.1358 /MDS/2016 54 OF THE ACT WAS DISALLOWED BY THE LEARNED ASSESSI NG OFFICER. 5. ON APPEAL, THE LEARNED COMMISSIONER OF INCOME TA X (APPEALS) CONFIRMED THE ORDER OF THE LEARNED ASSESS ING OFFICER BY OBSERVING AS UNDER:- 4.1 IN THE WRITTEN SUBMISSIONS FILED, THE APPE LLANT HAS CONTENDED THAT SHE HAD PAID CONSIDERATION ON 28.10.2013 AND CLAIMED THE SAID PAYMENT AGAINST CAP ITAL GAINS WHICH HAS ARISEN ON THE SALE OF PROPERTY ON 15.12.2004. IT HAS BEEN CONTENDED THAT IT IS ONLY O NE AND HALF MONTH MORE THAN STIPULATED ONE YEAR PERIOD AND HENCE A LENIENT VIEW MAY BE TAKEN. AS MENTIONED EAR LIER, THE APPELLANT HAS PLACED RELIANCE ON HONBLE SUPREM E COURTS DECISION IN THE CASE OF SANJEEV LAL (SUPRA) . 4.2 THE MATTER IS CONSIDERED. IN THE CASE OF SANJEE V LAL, THE HONBLE SUPREME COURT HAD ALLOWED THE EXEMPTION BEYOND STIPULATED PERIOD AND AS IN THAT C ASE THE SALE DEED COULD NOT BE EXECUTED EARLIER DUE TO THE PENDENCY OF LITIGATION. IN SUCH CIRCUMSTANCES, THE ASSESSEE COULD NOT EXECUTE THE SALE DEED DUE TO CIRCUMSTANCES BEYOND CONTROL OF THE ASSESSEE. IN TH E PRESENT CASE, NO REASON FOR THE AFORESAID DEFAULT T O COMPLY WITH THE STIPULATION OF SECTION 54(1) HAS BE EN BROUGHT FORTH EITHER BEFORE THE ASSESSING OFFICER O R IN THIS APPEAL BEFORE ME. IT IS THEREFORE, HELD WITH UTMOST RESPECT THAT THE FACTS OF THE CASE OF THE APPELLANT ARE CLEARLY DISTINGUISHABLE FROM THE MATTER BEFORE THE HONBLE SUPREME COURT. THE HONBLE APEX COURT TOOK A BENEVOLENT VIEW IN VIEW OF THE EXIGENCIES OF THE S ITUATION IN WHICH THE ASSESSEE WAS PLACED. IN THE PRESENT CA SE, THE APPELLANT HAS NOT BEEN ABLE TO DEMONSTRATE IN A NY WAY THAT THE DELAY WAS DUE TO THE CIRCUMSTANCES BEY OND HER CONTROL. IN VIEW OF THE SAME, I FIND NO REASON TO DISTURB THE DECISION OF THE ASSESSING OFFICER IN DE NIAL OF CLAIM UNDER SECTION 54 OF THE ACT. THE GROUNDS OF A PPEAL THEREFORE FAIL. 4 ITA NO.1358 /MDS/2016 6. BEFORE ME, THE LEARNED AUTHORIZED REPRESENTATIVE SUBMITTED THAT THE ASSESSEE HAS FULFILLED THE CONDI TIONS LAID DOWN UNDER SECTION 54 OF THE ACT AND THEREFORE THE LEARNED ASSESSING OFFICER AS WELL AS THE LEARNED COMMISSION ER OF INCOME TAX (APPEALS) HAS ERRED BY HOLDING THAT THE ASSESSEE IS NOT ENTITLED TO THE BENEFIT OF SECTION 54 OF THE ACT. 7. ON THE OTHER HAND, LEARNED DEPARTMENTAL REPRESENTATIVE RELIED ON THE DECISIONS OF THE REVEN UE. 8. I HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS AVAILABLE ON RECORD. THE LEA RNED ASSESSING OFFICER HAS STATED IN HIS ORDER THAT THE ASSESSEE HAS PURCHASED THE NEW ASSET ON 28.10.2003 WHICH IS BEFORE ONE YEAR FROM THE DATE OF THE SALE OF THE ASSET I.E . ON 15.12.2004, THEREBY THE TIME LIMIT OF ONE YEAR PRES CRIBED UNDER THE ACT HAS BEEN EXCEEDED BY ONE AND HALF MON THS APPROXIMATELY. THE LEARNED COMMISSIONER OF INCOME T AX (APPEALS) HAS ALSO CONFIRMED HIS ORDER. HOWEVER, BE FORE ME NO DETAILS WITH RESPECT TO PURCHASE OF THE RESIDENT IAL HOUSE OR 5 ITA NO.1358 /MDS/2016 SALE OF THE PROPERTY ARE MADE AVAILABLE TO EXAMINE THE VERACITY OF THE CLAIM OF THE REVENUE AS WELL AS THE ASSESSEE. NO FURTHER PARTICULARS ALSO EMERGE FROM THE ORDER O F THE REVENUE. I THEREFORE HEREBY REMIT THE MATTER BACK TO THE FILE OF THE LEARNED ASSESSING OFFICER IN ORDER TO HEAR T HE MATTER AFRESH AND TO PASS SPEAKING ORDER IN ACCORDANCE WIT H MERIT AND LAW. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE 23 RD AUGUST, 2016 SD/- ( . ) ( A.MOHAN ALA NKAMONY ) # / ACCOUNTANT MEMBER % /CHENNAI, & /DATED 23 RD AUGUST, 2016 SOMU () *) /COPY TO: 1. APPELLANT 2. RESPONDENT 3. + () /CIT(A) 4. + /CIT 5. ) 0 /DR 6. /GF .