BHARAT KANTILAL MEHTA, MUMBAI V. CIT -14, MUMBAI

ITA 1713/MUM/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0310 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-06-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-05-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 24-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N P SINGH
• Assessee Lawyers: DR P DANIEL
• Keywords: Revision of order; Opportunity of being heard; Period of limitation; Difference of opinion; Change of opinion
• Section: 143(3); 54F; 133(6); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B, MU MBAI BEFORE SHRI P.K. BANSAL, VICE-PRESIDENT AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO1713/MUM/2015 (ASSESSMENT YEAR- 2010-11) SHRI BHARAT KANTILAL MEHTA MAHARASHTRA SALES CORP., 7, BHASKAR LANE, BHULESHWAR ROAD, MUMBAI-400002 PAN: AAAPM7862J VS. CIT-14, EARNEST HOUSE, NARIMAN POINT, MUMBAI-400021. (APPELLANT) (RESPONDENT) ASSESSEE BY : DR. P. DANIEL - ADVOCATE REVENUE BY : SHRI N.P. SINGH (CIT-DR) DATE OF HEARING : 30.05.2017 DATE OF PRONOUNCEMENT : 14.06.2017 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS APPEAL BY ASSESSEE U/S. 253 OF THE INCOME-TAX ACT (THE ACT) IS DIRECTED AGAINST THE ORDER PASSED BY LD. COMMISSIONER OF INCOME TAX- 14, MUMBAI [THE CIT], MUMBAI DATED 21.08.2014 U/S 263 OF THE ACT FOR THE ASSESSMENT YEAR 2010-11. THE ASSESSEE HAS RAISED SOLITARY GROUND OF APPEAL T HAT LD. CIT ERRED IN PASSING THE ORDER U/S 263 OF THE ACT. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME FOR RELEVANT AY ON 13.10.2010 DECLARING TOTAL INCOME OF RS. 3,39,75 9/-. IN THE RETURN OF INCOME, THE ASSESSEE CLAIMED EXEMPTION OF LONG TERM CAPITAL GAIN (LTCG) U/S. 54F ON SALE OF HIS RIGHTS IN TENANTED PROPERTY. THE ASSES SMENT WAS COMPLETED ON 08.03.2013 U/S 143(3) OF THE ACT. THE ASSESSING OFF ICER (AO) ALLOWED THE ITA NO.171 3/M/2015- SHRI BHARAT KANTILAL MEHTA 2 EXEMPTION CLAIMED U/S 54F OF THE ACT AFTER DISCUSSI NG THE CLAIM RELATED TO LTCG EARNED ON TRANSFER OF ASSET/RIGHT IN THE PROPERTY O F RS. 35,25,000/-. SUBSEQUENTLY, THE ASSESSMENT WAS REVISED BY LD. CIT U/S 263 OF TH E ACT VIDE ORDER DATED 21.08.2014. THE LD. CIT ISSUED NOTICE DATED 14.06.2 013 U/S 263 ON THE GROUND THAT ASSESSEE CLAIMED DEDUCTION U/S 54F OF RS. 32.5 LAKH S. THE ASSESSEE WAS ONLY DORMANT INVESTOR IN THE BUILDING AND ENTIRE DAY TO DAY ACTIVITIES WERE BEING LOOKED AFTER BY ASSESSEES WIFE. IT WAS FURTHER MENTIONED THAT THE LUMP SUM COMPENSATION SHOULD HAVE BEEN TREATED AS INCOME FROM OTHER SOUR CES INSTEAD OF CAPITAL GAIN. THE NOTICE FURTHER CONTAINS THE RECORD REVEALS THAT AO HAS MADE ENQUIRY IN RESPECT OF TRANSACTION REGARDING RECEIPT OF AMOUNT OF RS. 7 5 LAKHS ON 30.08.2010 WHEREAS AS PER AIR INFORMATION, THE TRANSACTION WERE TAKEN PLACE IN RESPECT OF FIVE PROPERTIES FOR HAVING RECEIVED RS. 55 LAKHS, 56 LAK HS, 54 LAKHS, 75 LAKHS AND RS. 43,61,741/-. THE AO HAS LOST SITE, IN MAKING PR OPER ENQUIRY IN RESPECT OF OTHER TRANSACTION RELATING TO THE SALE OF PROPERTY FOR WH ICH THE AO WAS UNDER OBLIGATION TO MAKE ENQUIRY. AS THE AO FAILED TO MAKE PROPER EN QUIRY IN RESPECT OF ALL TRANSACTION RENDERING THE ASSESSMENT ORDER DATED 08 .03.2013 AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. THE ASSESSE E FILED HIS REPLY TO THE NOTICE U/S 263 OF THE ACT VIDE HIS REPLY DATED 4 TH JULY 2013. IN THE REPLY, THE ASSESSEE CONTENDED THAT THE OBSERVATION/REFERENCE IN THE NOT ICE THAT ENTIRE DAY TO DAY ACTIVITIES RELATING TO THE BUILDING WERE BEING LOOK ED AFTER BY HIS WIFE IS FAR FROM TRUTH. WIFE OF ASSESSEE SMT. RENU BHARAT MEHTA HAS NO INTEREST WHATSOEVER IN THE SAID BUILDING. THE DAY TO DAY ACTIVITIES RELATING T O THE BUILDING WERE UNDERTAKEN BY SMT. MADHAVI SUNIL SHAH, RESIDENT ON B-26, ANANDMAH AL BUILDING, BABULNATH, ITA NO.171 3/M/2015- SHRI BHARAT KANTILAL MEHTA 3 AND MUMBAI-26. THIS FACT WAS DULY VERIFIED BY ITO-W ARD NO. 14(1)(4), MUMBAI. IT WAS CONTENDED THAT STATEMENT WAS RECORDED BY ITO DURING THE ASSESSMENT PROCEEDING. THE ASSESSEE FURTHER CONTENDED THAT HE ALONG WITH SMT. MADHAVI SUNIL SHAH PURCHASED THE BUILDING AS SINGLE UNIT ON CERTA IN TERMS AND CONDITIONS. THE ASSESSEE HAD 25% SHARE REMAINING 75% BELONG TO SMT. MADHAVI SUNIL SHAH, THE SAID BUILDING WAS SINGLE UNIT. THE ASSESSEE RECEIVE D RS.35,25,000/- AS COMPENSATION OUT OF SALE CONSIDERATION OF RS. 75 L AKHS. THE REALIZED SHARE OF SALE CONSIDERATION WAS OFFERED UNDER THE HEAD LTCG. THE DETAILS WERE DULY VERIFIED AND CONFIRMED BY AO/ITO IN THE COURSE OF ASSESSMENT PROCEEDING. THE ASSESSEE ALSO CONTENDED THAT OTHER FOUR TRANSACTION RELATING THE SALE OF PROPERTY IS TOTALLY ERRONEOUS, THE SAID FOUR TRANSACTION ARE EXCLUSIVEL Y RELATED TO THE CO-INVESTOR SMT. MADHAVI SUNIL SHAH, THE CORRECTNESS OF THE SAME WAS DULY VERIFIED BY THE AO DURING THE COURSE OF ASSESSMENT PROCEEDING WHICH HA S BEEN REFERRED BY AO IN THE ASSESSMENT ORDER. THE ASSESSEE PRAYED THAT ASSESSME NT ORDER IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENUE. THE CON TENTION OF ASSESSEE WAS NOT ACCEPTED BY LD. CIT QUA THE COMPENSATION OF RS. 16, 50,00/- WHICH WAS RECEIVED BY ASSESSEE IN EXCESS OF HIS 25% SHARE. THE LD CIT HEL D THAT AO SHOULD HAVE EXAMINED THE EXEMPTION CLAIMED U/S 54F AND SHOULD H AVE RESTRICTED THE SAME TO THE EXTENT OF ASSESSEES SHARE I.E. 25% OF THE SALE CONSIDERATION AND THE EXCESS AMOUNT OF RS. 16,50,000/- SHOULD HAVE BEEN ADDED TO THE TOTAL INCOME OF ASSESSEE. THE LD. CIT(A) DIRECTED THE AO ACCORDINGLY. AGGRIEV ED BY THE ORDER OF LD. CIT, THE ASSESSEE FILED THE PRESENT APPEAL BEFORE US. ITA NO.171 3/M/2015- SHRI BHARAT KANTILAL MEHTA 4 3. WE HAVE HEARD DR. P. DENIAL ADVOCATE / LD. AUTHORIZ ED REPRESENTATIVE (AR) OF THE ASSESSEE AND SH. N.P. SINGH CIT-DR/ LD. DEPARTMENTA L REPRESENTATIVE (DR) FOR THE REVENUE AND PERUSED THE MATERIAL AVAILABLE ON R ECORD. THE LD. AR OF THE ASSESSEE ARGUED THAT ASSESSMENT ORDER PASSED BY AO IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF REVENUE. THE AO MADE PROPER ENQUIRIES BEFORE GRANTING EXEMPTION U/S 54F OF THE ACT. THE AO MADE ADEQUATE AND SUFFICIENT ENQUIRY DURING THE ASSESSMENT PROCEEDINGS. THE AO R ECORDED THE STATEMENT OF CO- OWNER, SMT. MADHAVI SUNIL SHAH, WHO HAS REALIZED RE MAINING SALE CONSIDERATION OF THE PROPERTY. AFTER RECORDING AND CONSIDERING TH E STATEMENT OF SMT. MADHAVI SUNIL SHAH, THE AO PASSED DETAILED AND REASONED ORD ER. IN SUPPORT OF HIS SUBMISSION, THE LD. AR OF THE ASSESSEE RELIED UPON THE DECISION IN FOLLOWING CASE: 1. CIT V/S. GABRIEL INDIA LTD. (BOM) 203 ITR 108. 2. CIT V/S. SUNBEAM AUTO LTD. (DELHI) 332 ITR 167, 3. CIT V/S. VIKAS POLYMERS (DELHI) 341 ITR 537, 4. CIT V/S. ARVIND JEWELLERS (GUJ.) 259 ITR 502, 5. CIT V/S. D.G. GOPALA GOWDA (KAR) 354 ITR 501, 6. CIT V/S. DEVELOPMENT CREDIT BANK LTD. (BOM) 323 ITR 206, 7. MALABAR INDUSTRIAL CO. V/S. CIT (SC) 243 ITR 83, 8. CIT V/S. MAX INDIA LTD. (SC) 295 ITR 282, 9. SMT. LILA CHOUDHARY V/S. CIT (GAUHATI) 289 ITR 226 10. SHRI NARAYAN TATU RANE V/S. ITO (MUM) (ITA/2690/M 16. 4. ON THE OTHER HAND, LD. CIT-DR FOR THE REVENUE SUPPO RTED THE ORDER OF LD. CIT. THE LD. DR FOR THE REVENUE ARGUED THAT WHILE PASSIN G THE ASSESSMENT ORDER, THE AO HAS NOT APPLIED HIS MIND TO THE ADMITTED FACT TH AT A SUM OF RS. 16,50,000/- WAS NOT PART AND PARTIAL OF THE SALE CONSIDERATION. THE AO OMITTED TO EXAMINE THE ISSUE IN QUESTION. THUS, ALLOWED THE EXCESS DEDUCTION U/S 54F OF THE ACT BY FRAMING ASSESSMENT IN AN ARBITRARY MANNER, THEREFORE, THE A SSESSMENT ORDER DATED 08.03.2013 PASSED U/S 143(3) IS NOT ONLY ERRONEOUS BUT PREJUDICIAL TO THE INTEREST OF ITA NO.171 3/M/2015- SHRI BHARAT KANTILAL MEHTA 5 REVENUE WHICH HAS BEEN CORRECTLY SET-ASIDE BY LD. C IT U/S 263 OF THE ACT. THE ORDER PASSED BY LD. CIT DESERVES TO BE UPHELD. IN S UPPORT OF HIS SUBMISSION, THE LD. DR FOR THE REVENUE ALSO FILED THE BRIEF WRITTEN SYN OPSIS IN THE FORM OF FACT-SHEET. THE LD. DR FOR THE REVENUE RELIED UPON THE DECISION IN (I) CIT V/S. AMRITLAL 34 ITR 130 (SC) (II) MOTOR UNION INS V/S. CIT 13 ITR 2 72 (III) GAJALAKSHMI V/S. CIT 22 ITR 502 (IV) MALABAR INDUSTRIAL CO. LTD. V/S CIT 243 ITR 83 (V) SMT. TARA DEVI AGGARWAL V/S. CIT (1973) 88 ITR 323 (VI) CIT V /S AMALGAMATIONS 238 ITR 963, CIT V/S. VP AGARWAL 68 TAXMAN 236. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PAR TIES AND HAVE GONE THROUGH THE RECORD OF VARIOUS DECISION RELIED BY THE PARTIES. B EFORE CONSIDERING THE FACT OF THE PRESENT CASE WE MAY REFER THE PROVISIONS OF SECTIO N 263 OF INCOME TAX ACT, WHICH MAY BE READS AS UNDER; REVISION OF ORDERS PREJUDICIAL TO REVENUE. 263. (1). THE COMMISSIONER MAY CALL FOR AND EXAMINE THE RECORD3 OF ANY PROCEEDING UNDER THIS ACT, AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INT ERESTS OF THE REVENUE3, HE MAY, AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD A ND AFTER MAKING OR CAUSING TO BE MADE SUCH INQUIRY AS HE DEEMS NECESSARY, PASS SUCH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY, INCLUDING AN ORD ER ENHANCING OR MODIFYING THE ASSESSMENT, OR CANCELLING THE ASSESSMENT AND DIRECT ING A FRESH ASSESSMENT. EXPLANATION .FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED THAT, FOR THE PURPOSES OF THIS SUB- SECTION,- ( A ) AN ORDER PASSED ON OR BEFORE OR AFTER THE 1ST DAY OF JUNE, 1988 BY THE ASSESSING OFFICER SHALL INCLUDE- ( I ) AN ORDER OF ASSESSMENT MADE BY THE ASSISTANT C OMMISSIONER OR DEPUTY COMMISSIONER OR THE INCOME-TAX OFFICER ON THE BASIS OF THE DIREC TIONS ISSUED BY THE JOINT COMMISSIONER UNDER SECTION 144A; ( II ) AN ORDER MADE BY THE JOINT COMMISSIONER IN EXER CISE OF THE POWERS OR IN THE PERFORMANCE OF THE FUNCTIONS OF AN ASSESSING OFFIC ER CONFERRED ON, OR ASSIGNED TO, HIM UNDER THE ORDERS OR DIRECTIONS ISSUED BY THE BO ARD OR BY THE CHIEF COMMISSIONER OR DIRECTOR GENERAL OR COMMISSIONER AUTHORIZED BY T HE BOARD IN THIS BEHALF UNDER SECTION 120; ( B ) RECORD SHALL INCLUDE AND SHALL BE DEEMED ALW AYS TO HAVE INCLUDED ALL RECORDS RELATING TO ANY PROCEEDING UNDER THIS ACT AVAILABLE AT THE TIME OF EXAMINATION BY THE COMMISSIONER; ( C ) WHERE ANY ORDER REFERRED TO IN THIS SUB-SECT ION AND PASSED BY THE ASSESSING OFFICER HAD BEEN THE SUBJECT MATTER OF ANY APPEAL FILED ON OR BEFORE OR AFTER THE 1ST DAY OF ITA NO.171 3/M/2015- SHRI BHARAT KANTILAL MEHTA 6 JUNE, 1988, THE POWERS OF THE COMMISSIONER UNDER TH IS SUB-SECTION SHALL EXTEND AND SHALL BE DEEMED ALWAYS TO HAVE EXTENDED TO SUCH MAT TERS AS HAD NOT BEEN CONSIDERED AND DECIDED IN SUCH APPEAL. (2) NO ORDER SHALL BE MADE UNDER SUB-SECTION ( 1) AFTER THE EXPIRY OF TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER SOUGHT TO BE REVISED WAS PASSED. (3) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-S ECTION (2), AN ORDER IN REVISION UNDER THIS SECTION MAY BE PASSED AT ANY TIME IN THE CASE OF AN ORDER WHICH HAS BEEN PASSED IN CONSEQUENCE OF, OR TO GIVE EFFECT TO, ANY FINDING O R DIRECTION CONTAINED IN AN ORDER OF THE APPELLATE TRIBUNAL, NATIONAL TAX TRIBUNAL, THE HIGH COURT OR THE SUPREME COURT. EXPLANATION .IN COMPUTING THE PERIOD OF LIMITATION FOR THE PUR POSES OF SUBSECTION (2), THE TIME TAKEN IN GIVING AN OPPORTUNITY TO THE ASSESSEE TO BE REHEARD UNDER THE PROVISO TO SECTION 129 AND ANY PERIOD DURING WHICH ANY PROCEED ING UNDER THIS SECTION IS STAYED BY AN ORDER OR INJUNCTION OF ANY COURT SHALL BE EXC LUDED. THE CAREFUL PERUSAL OF SECTION 263 MAKE IT CLEAR TH AT, THE COMMISSIONER CAN PASS AN ORDER, HOWEVER HE IS REQUIRED TO GIVE THE ASSESS EE AN OPPORTUNITY OF BEING HEARD. THE COMMISSIONER IS REQUIRED TO RECORD THAT THE ORDER MADE BY ASSESSING OFFICER IS ERRONEOUS INSOFAR AS IT IS PREJUDICIAL T O THE INTEREST OF THE REVENUE. IF IN THE FRESH ASSESSMENT, THE ASSESSING OFFICER IS ENTI TLED TO EXAMINE ITEM WHICH DOES NOT FORM PART OF SECTION 263 PROCEEDINGS, THE STATU TORY REQUIREMENT OF FRAMING AN ORDER UNDER SECTION 263 AFTER GIVING THE ASSESSEE A N OPPORTUNITY OF BEING HEARD, STAND OBLITERATED OR IS MADE REDUNDANT. FURTHER, PL AN READING OF SECTION 263(1), IT IS APPARENT THAT COMMISSIONER COULD HAVE TREATED A NY FURTHER ITEM OR PART OF THE ASSESSMENT ORDER AS BEING ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. 6. WE MAY ALSO REFER HERE THAT THE ASSESSING OFFICER W HILE PASSING/ FRAMING ASSESSMENT ORDER PERFORMS A QUASI-JUDICIAL FUNCTION . THE JURISDICTION UNDER SECTION 263 CAN BE EXERCISED ONLY WHEN BOTH THE TWIN CONDI TION I.E. THE ORDER OF ASSESSING OFFICER IS ERRONEOUS AND SO FAR AS PREJUDICIAL TO T HE INTEREST OF REVENUE. THESE CONDITIONS ARE CONJUNCTIVE AS HAS BEEN HELD BY HON BLE SUPREME COURTS IN A MALABAR INDUSTRIAL COMPANY LTD (SUPRA). FURTHER, TH E ORDER OF ASSESSING OFFICER CANNOT BE TERMED ERRONEOUS UNLESS IT IS NOT IN ACCO RDANCE WITH LAW. IF ASSESSING ITA NO.171 3/M/2015- SHRI BHARAT KANTILAL MEHTA 7 OFFICER IN ACCORDANCE WITH LAW MAKES A CERTAIN ASSE SSMENT, IT CANNOT BE BRANDED AS ERRONEOUS BY THE COMMISSIONER SIMPLY BECAUSE, ACCOR DING TO HIM, THE ORDER SHOULD HAVE BEEN WRITTEN MORE DELIBERATELY. SECTION 263 DOES NOT VISUALIZE A CASE OF SUBSTITUTION OF JUDGMENT BY THE COMMISSIONER FOR THAT OF THE ASSESSING OFFICER WHO PASSED THE ORDER UNLESS THE DECISION IS HELD TO BE ERRONEOUS. WHERE THE ASSESSING OFFICER HAS EXERCISED THE QUASI-JUDICIAL POWER VESTED IN HIM ACCORDING TO LAW AND ARRIVED AT THE CONCLUSION SUCH CONCLUSION C ANNOT BE FOUND TO BE ERRONEOUS SIMPLY BECAUSE THE COMMISSIONER DOES NOT FEEL SATIS FIED WITH THE CONCLUSION AS HELD BY HONBLE DELHI HIGH COURT IN CIT VERSUS SUNB EAM AUTO LTD 332 ITR 167(DELHI) AND IN CIT VERSUS ANIL KUMAR SHARMA 335 ITR 83(DELHI). 7. THE PERUSAL OF ASSESSMENT ORDER REVEALS THAT AO RAI SED QUERY RELATED WITH THE SALE CONSIDERATION RECEIVED ON TRANSFER OF RIGHT IN THE TENANTED PROPERTY FOR RS. 35,25,000/-. THE ASSESSEE FURNISHED HIS REPLY ALONG WITH AFFIDAVIT-CUM-DECLARATION OF SMT. MADHAVI S. SHAH VIDE REPLY DATED 04.03.2013 . IN THE AFFIDAVIT, SMT. MADHAVI S. SHAH MADE THE FOLLOWING DEPOSITION: 'I ALONG WITH ONE MR BHARAT KANTILAL MEHTA OF 50, D HANJI STREET, ZAVERI BAZAR, MUMBAI 400 003 HAVE PURCHASED A BUILDING STR UCTURE KNOWN AS SHREEJI MANSION ALONG WITH GROUND APPURTENANT THERE TO SITUATED AT 94-100, OLD HANUMAN LANE (CTS NO 8241830, BHULESHWAR DIVISI ON), KALBADEVI, MUMBAI 400002 VIDE DEED OF CONVEYANCE DATED 9TH DAY OF AUGUST 2002 DULY REGISTERED WITH THE OFFICE OF THE SUB REGISTRAR OF ASSURANCE, MUMBAI. BEFORE THE PURCHASE OF THE AFORESAID PROPERLY WE HA VE AGREED UPON CLEARLY THAT IN THE STRUCTURAL PROPERTY AS A WHOLE OF THE BUILDI NG KNOWN AS SHREEJI MANSION AS REFERRED TO HEREIN ABOVE, MR. BHARAT KANTILAL ME HTA SHALL HAVE ONLY 25% SHARE IN THE COST OF PURCHASE OF THE SAID BUILDING AS A SINGLE UNIT AS HIS INVESTMENT AND MY SHARE @ 75% THEREIN. I FURTHER STATE THAT MR. BHARAT KANTILAL MEHTA IS A DORMANT INVESTOR AND HE SHALL NOT HAVE ANY DIRECT OR INDIRECT INTEREST OR S HARE IN THE UNITS WHETHER TENANTED OR OTHERWISE FRAMED THEREIN. ITA NO.171 3/M/2015- SHRI BHARAT KANTILAL MEHTA 8 IT IS ALSO UNDERSTOOD BY AND BETWEEN US THAT I SHAL L BE THE ACTUAL OWNER AND/OR LANDLORD FOR ALL THE UNITS WHETHER TENANTED OR OTHE RWISE FRAMED IN THE BUILDING KNOWN AS SHREEJI MANSION REFERRED TO HEREI N OVER AND ABOVE MY 75% SHARE IN THE BUILDING STRUCTURE AS A SINGLE UNIT. A ND THE SAID MR. BHARAT KANTILAL MEHTA SHALL NOT HAVE ANY RIGHT, TITLE, AND /OR INTEREST IN THE SAID UNITS AND SHALL NOT INTERFERE IN THE TRANSFER AND/OR SALE OF ANY - OF THE AFORESAID UNITS. HOWEVER, MR. BHARAT KANTILAL MEHTA SHALL CO- OPERATE ME AS AND WHEN HIS ATTENDANCE OR SIGNATURE IS REQUIRED IN THE COUR SE OF DEALING IN THE AFORESAID UNITS. IT IS ALSO CLEARLY COVENANTED BY AND BETWEEN US THA T MR. BHARAT KANTILAL MEHTA S/MIL HAVE HIS 25% SHARE IN THE SALE CONSIDER ATION OF THE WHOLE BUILDING STRUCTURE AS A SINGLE UNIT AFTER DEDUCTION OF ANY EXPENDITURE IF MADE IN THE COURSE OF SALE OF THE SAID BUILDING STRUCTUR E KNOWN AS SHREEJI MANSION. WE HAVE REDUCED OUR ABOVE UNDERSTANDING IN WRITING ON 25' DAY OF JULY 2002 FOR SAKE OF OUR PERSONAL UNDERSTANDINGS AND AL SO WITH AN INTENTION TO SOLVE THE QUESTIONS IF ARISE IN FUTURE IN OUR AB SENCE RELATING TO BUILDING STRUCTURE AND THE UNITS FRAMED THEREIN WITHOUT PREJUDICE TO OUR AGREEMENT OF UNDERSTANDING AS AFORESAID, I HAVE ON MY OWN AND WITH GOOD WISHES NOT SHARED A SUM OF RS 16,50,0001- (RUPEES SIXTEEN LAKH FIFTY THOUSAND ONLY) FROM OUT OF TOTAL SALE PROCEEDS OF BUILDING KNOWN AS SHREEJI MANSION REFERRED TO HEREINABOVE AS A ONE SINGLE UNIT OVER AND ABOVE HIS 25% SHARE THEREIN WHICH WOULD WORKED OUT TO RS 18,75,00 01- (RUPEES EIGHTEEN LAKH SEVENTY FIVE THOUSAND ONLY) A S IF SHRI BHARAT KANTILAL MEHTA WOULD HAVE THE SAME TO THE EXTENT OF HIS SHAR E AS INCREASED BY THE SAID AMOUNT. I AM MAKING THE ABOVE STATEMENTS AND HAVE MADE THE SAME WITHOUT ANY FORCE OR UNDER ANY PRESSURE AND THE SAME IS MADE BY ME UNDER GOOD AND HEALTH CONDITIONS AND AS PER FACTS.' 8. THE ASSESSING OFFICER ISSUED NOTICES UNDER SECTION 133(6) ALONG WITH SUMMON UNDER SECTION131 TO SMT. MADHAVI SUNIL SHAH AND REC ORDED HER STATEMENT DURING THE ASSESSMENT. THE ASSESSING OFFICER FURTHER VERIF IED THAT ASSESSEE RECEIVED RS.35,25,000/- FROM SMT. MADHAVI SUNIL SHAH THROUG H RTGS. THE ASSESSING OFFICER AFTER SATISFACTION ALLOWED THE CLAIM OF ASS ESSEE. THUS, AS PER OUR VIEW, THE ASSESSING OFFICER RAISED ALL NECESSARY QUERIES REGA RDING THE CLAIM OF LTCG. WE HAVE FURTHER OBSERVED THAT THE LD CIT AFTER CONSIDE RING THE FACTS OF THE CASE NOT DISPUTED THE RECEIPT OF AMOUNT OF COMPENSATION AND THE CLAIM OF LTCG, WHAT IS I ITA NO.171 3/M/2015- SHRI BHARAT KANTILAL MEHTA 9 DISPUTED IS THAT THE EXCESS OF 25% (RS.16,50,00/-) BE TREATED AS INCOME FROM OTHER SOURCE. THE ORDER PASSED BY ASSESSING OFFICE R IS ONE OF THE POSSIBLE VIEWS WHICH CAN NEVER BE A SUBJECT MATTER OF REVISION UND ER SECTION 263. THUS, WE HOLD THAT THE ORDER OF REVISION PASSED BY LD CIT IS BASE D MERELY ON THE CHANGE OF OPINION. HENCE, THE ORDER PASSED BY ASSESSING OFFIC ER IS NEITHER ERRONEOUS PREJUDICIAL NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE. WE HAVE GAVE OUR CARE FULL CONSIDERATION TO THE VARIOUS DECISIONS RELIED BY LD CIT-DR, BUT THE FACTS AND RATIO DECIDED IN THOSE CASES ARE AT VARIANCE. IN VI EW OF THE ABOVE DISCUSSION WE ALLOW THE GROUND OF APPEAL RAISED BY ASSESSEE BY AC CEPTING THE APPEAL OF ASSESSEE. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. N O ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH DAY OF JUNE 2017. SD/- SD/- (VICE-PRESIDENT) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 14/06/2017 S.K.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/