ITO 23(1)(2), MUMBAI V. ANIL MICHAEL CORDEIRO, MUMBAI

ITA 1502/MUM/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 9875 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 03-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A , MUMBAI BEFORE SHRI C.N. PRASAD , HONBLE JUDICIAL MEMBER AND SHRI RAJESH KUMAR , HONBLE ACCOUNTANT MEMBER ITA NO. 1502 /MUM/201 7 (A.Y: 200 9 - 10 ) ITO 23(1)(2) ROOM NO . 108, MATRU MANDIR, TARDEO ROAD, GRANT ROAD, MUMBAI 400 007 V. ANIL MICHAEL CORDEIRO SOBRA 122, ST . CYRILS ROAD, BANDRA (WEST), MUMBAI - 400050 PAN NO: AABPC 2447 G (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI ANOOP HIWASE ASSESSEE BY : NONE DATE OF HEARING : 23.08.2018 DATE OF PRONOUNCEMENT : 26 .09.2018 O R D E R PER C.N. PRASAD , JUDICIAL MEMBER THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) - 32 , MUMBAI IN APPEAL NO. CIT(A) - 32 / IT - 621/23(1)(2)/2015 - 16 DATED 22.11.2016 FOR THE ASSESSMENT YEAR 2009 - 10 . 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) HAS ERRED IN GIVING RELIEF BY HOLDING THAT THE AO HAS NO POWER TO REVIEW THE ASSESSMENT AS THE ASSESSMENT HAD ALREADY BEEN MADE IN THIS CASE AND THE ISSUE WAS DULY CONSIDERED BY GIVING DEDUCTION U/S 54 EC OF THE ACT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) HAS NOT APPRECIATED THAT MERE PRODUCING BOND CERTIFICATES DOES NOT MEAN THAT THE ISSUE WAS CONSIDERED DURING THE ASSESSMENT PROCEEDINGS WHEN THE AO HAS NOT DISCUSSED THE ISSUE OF APPLICABILITY OF SECTION 54EC IN THE ASSESSMENT ORDER AND HAD THEREFORE NOT FORMED AN OPINION ON THE ISSUE. 2 ITA NO. 1502/MUM/2017 (A.Y:2009 - 10) ANIL MICHAEL CORDEIRO 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) HAS ERRED IN NOT APPRECIATING THAT INCOME HAD ESCAPED ASSESSMENT DUE TO THE FACT THAT THE BOND CERTIFICATE OF RURAL ELECTRIFICATION CORPORATION LTD DATED 30.04 .2009 FOR RS 50 LACS IS BEYOND THE DATE PERMISSIBLE BY LAW IN SECTION 54EC(1), WHICH MANDATES SUCH INVESTMENT ONLY WITHIN A PERIOD OF SIX MONTHS AFTER THE DATE OF SUCH TRANSFER I.E WITHIN SIX MONTHS OF THE DATE 15.10.2008 AS PER ASSESSEE'S COMPUTATION OF L ONG TERM CAPITAL GAIN FILED ALONGWITH RETURN OF INCOME FURNISHED TO THE AO. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) HAS ERRED IN NOT APPRECIATING THAT IN THE COMPUTATION OF LONG TERM CAPITAL GAIN FILED BY THE ASSESSEE, THE INVESTMENT OF RS 50 LACS OF THE MONTH OF APRIL 2009 IS SHOWN DATED 03.04.2009, WHEREAS THE COPY OF THE BOND CERTIFICATE ISSUED BY RURAL ELECTRIFICATION CORPORATION LTD. STATES THE DATE AS 30.04.2009 WITH MATURITY ON 30.04.2012. 5. ON THE FACTS AND CIRCUMS TANCES OF THE CASE AND IN LAW, THE LD. CIT (A) HAS ERRED IN NOT APPRECIATING THAT THIS ISSUE HAS BEEN CLARIFIED BY BOTH THE PROVISOS TO SECTION 54EC(1) OF THE ACT. 6. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) HAS ERRED IN NOT D ECIDING THE CASE ON MERIT I.E APPLICABILITY OF PROVISIONS OF SECTION 54EC OF THE ACT. 7. THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CIT (A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE A.O BE RESTORED. 8. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTE R ANY GROUND OR ADD A NEW GROUND. 3. ON A PERUSAL OF THE MATERIAL AVAILABLE ON RECORD, IT IS FOUND THAT THE TAX EFFECT ON THE ISSUE IN THE PRESENT APPEAL IS BELOW . 2 0 LAC S AND IN VIEW OF THE CBDT CIRCULAR N O . 3/2018 DATED 11/07 /201 8 IN F.NO.279/MISC.142/2007 - ITJ (PT) , THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE. THEREFORE, WE DI SMISS THE APPEAL OF THE REVENUE ON ACCOUNT OF LOW TAX EFFECT . 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 26 TH SEPTEMBER, 2018 SD/ - SD/ - ( RAJESH KUMAR ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 26 / 09/2018 GIRIDHAR, SR.PS 3 ITA NO. 1502/MUM/2017 (A.Y:2009 - 10) ANIL MICHAEL CORDEIRO COPY TO: 1. THE ASSESS E E. 2. THE REVENUE. 3. THE CIT 4. THE CIT(A) 5. THE D.R . 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., MUMBAI