Kalpesh Nemichand Oswal, Pune V. Income-tax Officer, Ward - 6 (5), Pune

ITA 1808/PUN/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 0622 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 19-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: KALPESH OSWAL
• Keywords: Capital asset; Capital Gains
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “SMC”, PUNE BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER आयकर अपील सं. / ITA No.1808/PUN/2019 नधा रण वष / Assessment Year : 2013-14 Kalpesh Nemichand Oswal, A/12, Shatrunjay Society, 299, Ghorpade Peth, Shankar Sheth Road, Pune – 411 002 PAN : AAHPO1089L Vs. ITO, Ward-6(5), Pune (Appellant) (Respondent) आदेश / ORDER PER S.S. GODARA, JM : This assessee’s appeal for AY 2013-14 arises against the CIT(A)-4, Pune’s order dated 26-09-2019 passed in case No. PN/CIT(A)-4/ITO, Ward-6(5), Pune/202/2016-17 involving proceedings under Section 143(3) of the Income Tax Act, 1961 in short the Act. Heard both the sides. Case file perused. 2. The assessee pleads the following substantive grounds in the instant appeal : “On the fact and in the circumstances of the case the learned Assessing officer and CIT(A) erred in: Appellant by Shri Kalpesh Oswal Respondent by Shri Arvind Desai Date of hearing 27-05-2022 Date of pronouncement 31-05-2022 ITA No. 1808/PUN/2019 Kalpesh N. Oswal 2 1. Not considering the capital gain of Rs.2,82,838/-, arising from sale of property, as long as term capital gain. This action being not in accordance with law it is prayed that the AO be directed to treat and consider the said amount of Rs. 2,82,838/- as long as term capital gain and tax accordingly. 2. Not considering an including the amount of Rs. 1,42,738/- paid as interest on loan for housing, to the cost of acquisition. The action being bad in law it is prayed that the AO be directed to include the said amount of Rs.1,42,738/- to the cost of acquisition of the flat for determining the capital gains. 3. In treating the amount of Rs.13,10,603 /- being surplus arising on sale of flat as short-term capital gain and assessing accordingly. This action of the Assessing Officer being not in accordance with law it is prayed that the said surplus be treated as surplus arising on transfer of long-term capital assets and be tax as such by computing the long-term capital gain in accordance with the provisions of the law. 4. Not assessing the income in accordance with the provisions of law. It is prayed that the assessment be set aside and AO be directed to consider and accept the submission made by the assessee and assess the income accordingly. 3. Mr. Desai vehemently argued that the lower authorities have been rightly rejected assessee’s claim since not filed by way of a revised return thereby violating Goetz India Ltd. Vs. CIT 284 ITR 323 (SC). He fails to rebut the clinching fact that their lordships have made clear that the same nowhere impinges upon the appellate authorities decision vested under the provisions of the Act to entertain a new claim. Coupled with this, there is no adjudication on merits regarding the assessee’s ITA No. 1808/PUN/2019 Kalpesh N. Oswal 3 claim (supra) rejected herein. Faced with this situation, I deem it appropriate to restore the assessee’s substantive grievance back to the Assessing Officer for his adjudication on merits within three effective opportunities of hearing. Ordered accordingly. 4. This assessee’s appeal is allowed for statistical purposes in above terms. Order pronounced in the Open Court on 31 st May, 2022. Sd/- (S.S.GODARA) JUDICIAL MEMBER प ु णे Pune; दनांक Dated : 31 st May, 2022 Satish आदेश क त ल प अ े षत / Copy of the Order is forwarded to : 1. अपीलाथ / The Appellant; 2. यथ / The Respondent; 3. 4. 5. The CIT(A)-4, Pune The Pr.CIT-3, Pune वभागीय त न ध, आयकर अपील!य अ धकरण, प ु णे “SMC” / DR ‘SMC’, ITAT, Pune; 6. गाड फाईल / Guard file. आदेशान ु सार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune ITA No. 1808/PUN/2019 Kalpesh N. Oswal 4 Date 1. Draft dictated on 27-05-2022 Sr.PS 2. Draft placed before author 30-05-2022 Sr.PS 3. Draft proposed & placed before the second member -- JM 4. Draft discussed/approved by Second Member. -- JM 5. Approved Draft comes to the Sr.PS/PS Sr.PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order.