RAJEE PATWA, MUMBAI V. ITO 25(3)(3), MUMBAI

ITA 1735/MUM/2017

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8047 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 10-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH K R AI
• Keywords: Capital asset; Additional evidence
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH SMC, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER ITA NO.1735/M/2017 ASSESSMENT YEAR: 2012-13 SHRI RAJEE PATWA, B-1102, PARIMAL APPTS, OPP ROOPDAR D BLDG, GULMOHUR ROAD, NEAR JUHU LANE, ANDHERI (WEST), MUMBAI-400 056 PAN: ABUPL 4599G VS. INCOME TAX OFFICER - 25(3)(3), MUMBAI (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI GOVIND JAVERI, A.R. REVENUE BY : SHRI SAURABH K. RAI, D.R. DATE OF HEARING : 22.09.2017 DATE OF PRONOUNCEMENT : 11.12.2017 O R D E R PER D.T. GARASIA, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 16.01.2017 OF THE COMMISSIONER OF I NCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO ASSESSMENT YEAR 2012-13. 2. DURING THE COURSE OF HEARING, THE LD. A.R. HAS F ILED THE ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 29 OF T HE APPELLATE TRIBUNAL RULES, 1963. 3. THE SHORT FACTS OF THE CASE ARE AS UNDER: THE ASSESSEE HAD PURCHASED THE FLAT NO.901 IN THE BUILDING KNOWN AS 'WOODBINE' SITUATE AT BALKUM, THANE FROM M/S . NATIONAL ITA NO.1735/M/2017 SHRI RAJEE PATWA 2 DYES, THE DEVELOPERS, IN THE MONTH OF DECEMBER 2005 . THE DEVELOPERS ISSUED ALLOTMENT LETTER DATED 04.12.2005 AND ALSO ISSUED LETTER DATED 07/12/2005 WELCOMING THE ASSESSEE FOR BECOMING PART OF THEIR PROJECT OF 'EVEREST WORLD'. THE FORMAL AGREEMEN T FOR PURCHASE OF THE SAID FLAT WAS ENTERED BETWEEN THE ASSESSEE A ND THE DEVELOPERS ON 05.12.2009. THE SAID FLAT PURCHASED BY THE ASSE SSEE WAS SOLD ON 11.07.2011 FOR CONSIDERATION OF RS.37,00,000/-. SI NCE THE ASSESSEE WAS ALLOTTED FLAT NUMBER 901 VIDE ALLOTMENT LETTER DATED 04/12/2005, THE ASSESSEE COMPUTED A PERIOD OF HOLDING FROM THAT DATE AND TREATED IT AS 'LONG-TERM CAPITAL ASSET'. THE INCOME ARISING THEREFROM ON ITS SALE MADE ON 11.07.2011 WAS OFFERED TO TAX AS LONG TERM CAPITAL GAIN IN THE RETURN OF INCOME FILED BY THE ASSESSEE ON 23 /04/2015. THE ASSESSEE HAD CLAIMED EXEMPTION UNDER SECTION 54 OF THE ACT FROM THE LONG-TERM GAIN EARNED BY HER. WHILE COMPLETING ASSE SSMENT, THE ASSESSING OFFICER CALLED FOR DETAILS PERTAINING TO THE TRANSACTION OF CAPITAL GAIN AND THE SAME WERE FURNISHED BY THE REP RESENTATIVE OF THE ASSESSEE INCLUDING THE LETTER DATED 07/12/2005 ISSU ED BY THE DEVELOPERS. IT IS THE CASE OF THE ASSESSING OFFICE R THAT SINCE THE LETTER DATED 07/12/2005 DID NOT CONTAIN THE RELEVANT PARTI CULARS SUCH AS FLAT NUMBER, BUILDING NAME, ETC. IT CANNOT BE SAID THAT THE ASSESSEE HAD ACQUIRED ANY RIGHT IN THE IMPUGNED FLAT. THE ASSESS ING OFFICER HAS FURTHER HELD THAT THE ASSESSEE CAN BE SAID TO HAVE ACQUIRED THE FLAT ON 05.12.2009 I.E. THE DATE ON WHICH AGREEMENT FOR SAL E WAS EXECUTED BETWEEN THE DEVELOPERS AND ASSESSEE. ACCORDINGLY, H E TREATED THE ITA NO.1735/M/2017 SHRI RAJEE PATWA 3 SAID FLAT AS SHORT-TERM CAPITAL ASSET AND COMPUTED THE GAIN ARISING THEREFROM AS SHORT-TERM CAPITAL GAIN. CONSEQUENTIAL LY, THE BENEFIT OF INDEXATION AND EXEMPTION AVAILABLE U/S. 54 OF THE A CT WERE NOT GRANTED TO THE ASSESSEE. THE ASSESSEE HAS FILED TH E FOLLOWING DOCUMENT IN PAPER BOOK BEFORE US. THE LD. A.R. SUB MITTED THAT THIS CRUCIAL DOCUMENT WHICH ESTABLISHES THAT ASSESSEE WA S ALLOTTED A FLAT IN DECEMBER 2005 WITH FLAT NO.901 IN EVEREST WORLD PROJECT. THE LD. A.R . SUBMITTED THAT THIS DOCUMENT WAS GIVEN TO LD. A.R. BUT HE HAD NOT GIVEN THIS DOCUMENT BEFORE THE AO AND TH E LD. CIT(A). MOREOVER, BANK STATEMENT REFLECTING PAYMENT OF MONE Y TO DEVELOPERS TOWARDS PURCHASE OF THE FLAT WAS NOT FIL ED BEFORE THE LOWER AUTHORITIES. THEREFORE, ALL THESE DOCUMENTS SHOW THAT ALL THESE DOCUMENTS ARE VITAL FOR DECIDING THE APPEAL, THEREF ORE, THIS ADDITIONAL EVIDENCE MAY BE ADMITTED. 4. THE LD. D.R. OBJECTED TO IT. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES. WE FIND THAT ASSESSEE HAS SUBMITTED THE ADDITIONAL EVI DENCE BEFORE US. THE ASSESSEE HAS SUBMITTED THE CONFIRMATION AND HE SUBMITTED THE 5 ADDITIONAL EVIDENCES BEFORE US. WE FIND THAT ASSESS EE HAS PRODUCED FOLLOWING DOCUMENTS BEFORE US: SR. NO. PARTICULARS DATE PAGE NO. FILED BEFORE A.O. CIT(A) 1. ALLOTMENT LETTER ISSUED BY NATIONAL 04.12.2005 1-2 NO YES ITA NO.1735/M/2017 SHRI RAJEE PATWA 4 DYES FOR BOOKING OF FLAT NO.901 IN BUILDING WOODBINE IN PROJECT EVEREST WORLD. 2. WELCOME LETTER ISSUED TO THE APPELLANT FOR BECOMING MEMBER OF EVEREST WORLD. 07.12.2005 3 YES NO 3. BANK STATEMENT SHOWING INITIAL PAYMENT MADE TO NATIONAL DYES ON 12/06/2005 TOWARDS BOOKING OF AFORESAID FLAT. 4 NO NO 4. STATEMENT SHOWING PAYMENTS MADE BY THE APPELLANT TOWARDS THE BOOKING OF AFORESAID FLAT 5 YES NO 5 AGREEMENT FOR SALE BETWEEN NATIONAL DYES AND THE APPELLANT OF THE AFORESAID FLAT (RELEVANT PAGES ONLY) 05.12.2009 6-25 YES NO 6. WE FIND THAT AT SL. NO.2 IT HAS BEEN MENTIONED TH AT WELCOME LETTER WAS PRODUCED BEFORE THE AO BUT IT WAS NOT PR ODUCED BEFORE THE LD. CIT(A). THE BANK STATEMENT SHOWING INITIAL PAY MENT TO NATIONAL DYES ON 12.06.05 TOWARDS BOOKING THE SAID FLAT THIS EVIDENCE WAS NOT FILED BEFORE LOWER AUTHORITIES. THE STATEMENT SHOW ING THE PAYMENT ITA NO.1735/M/2017 SHRI RAJEE PATWA 5 WAS FURNISHED BEFORE THE AO BUT IT WAS NOT FURNISHE D BEFORE THE LD. CIT(A). SIMILARLY AGREEMENT TO SALE WAS ALSO PRODU CED BEFORE THE AO BUT ASSESSEE COULD NOT PRODUCE IT BEFORE THE LD. CIT(A). WE FIND THAT ALL THESE EVIDENCES GO TO THE ROUTE OF TH E CASE. THEREFORE, I AM OF THE VIEW THAT THESE DOCUMENTS REQUIRE VERIFIC ATION AT THE END OF THE AO. THEREFORE, WE ADMIT THE SAME AND RESTORE T HIS MATTER BACK TO THE FILE OF AO AND AO IS DIRECTED TO DISPOSE THE MATTER AS PER LAW. 7. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11.12.2017. SD/- (D.T. GARASIA) JUDICIAL MEMB ER MUMBAI, DATED: 11.12.2017. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.