ITO 25(3)(4), MUMBAI V. SUMITRA HARILAL MALLAH, MUMBAI

ITA 1826/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3673 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 2 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 24-05-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 07-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K MOHANDA S
• Assessee Lawyers: KEYURI DESAI
• Keywords: Tax effect
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI SANJAY ARORA (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 1826/MUM/2013 ASSESSMENT YEAR: 2009-10 THE ITO - 25(3)(4), C-10, ROOM NO. 307, PRATYAKSH KAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA(E), MUMBAI- 400051. VS. SMT. SUMITRA HARILAL MALLAH, A-104, SUMITRA CONSTRUCTION, VASANT SMRITI, THAKUR COMPLEX, KANDIVALI (EAST), MUMBAI- 400101. PAN- AFGPM2276R (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. K.MOHANDAS RESPONDENT BY : MS. KEYURI DESAI DATE OF HEARING: 24/05/2016 DATE OF PRONOUNCEMENT: 24/05/2016 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAI NST ORDER DATED 31/12/2012 PASSED BY THE LD CIT(A)-35, MUMBAI FOR THE ASSESSME NT YEAR 2009-10. 2. THE REVENUE HAS CHALLENGED THE IMPUGNED ORDER O N FOLLOWING EFFECTIVE GROUNDS:- (I). ON THE FACTS IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN TREATING THE PROFIT ON SALE OF FLAT AS LON G TERM CAPITAL GAIN AND ALLOWING THE SAME AS EXEMPT U/S 54 OF THE I.T.ACT, 1961 EVEN THOUGH ASSESSEE HAS NOT DECLARED THE SAID PROFIT IN RETURN OF INCOME NOR CLAIMED ANY EXEMPTIONS, EVEN MORE SO ONLY, WHEN THE ASSESSE E WAS CONFRONTED 2 ITA NO. 1826/MUM/2013 ASSESSMENT YEAR: 2009-10 DURING THE ASSESSMENT PROCEEDINGS, OFFERED THE SAID PROFIT AS SHORT TERM CAPITAL GAIN.. (II) ON THE FACTS IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ADMITTING A NEW EVIDENCE, I.E. ALLOTMENT L ETTER WHICH WAS NOT PRODUCED BEFORE THE ASSESSING OFFICER IN CONTRAVENT ION OF RULE 46A OF THE INCOME TAX RULES. (III) ON THE FACTS IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT THE DATE OF ISSUE OF A LLOTMENT LETTER IS THE DATE OF ACQUISITION OF PROPERTY AS THERE IS NO PROOF THA T POSSESSION OF FLAT WAS TAKEN ON THE DATE OF ALLOTMENT LETTER. (IV) ON THE FACTS IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN ACCEPTING THE ASSESSEES WORKING OF LONG TERM CAPITAL GAIN (AGAIN IN CONTRAVENTION OF RULE 46A OF INCOME- TAX RULES), WHEREIN THE ASSESSEE HAS CLAIMED AN EXEMPTION OF RS. 20,57,585/ - U/S 54 OF THE I.T.ACT, 1961 BY INVESTING THE PROFIT IN A FLAT AND 3 PLOTS EVEN THOUGH AS PER THE PROVISIONS OF SEC. 54, NO EXEMPTION IS AVAILABL E ON INVESTMENTS IN PLOTS. (V) THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE AO BE RESTORED . 3 AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TAX EFFECT IN THIS CASE IS BELOW 10,00,000/- AS THE TOTAL EXEM PTION U/S54 OF THE ACT CLAIMED BY THE ASSESSEE IS RS. 20,57,585/-. HENCE, AS PER THE CBDT CIRCULAR NO. 21 OF 2015, DATED 10/12/2015, THE PRESENT APPEA L IS NOT MAINTAINABLE. 4. THE LD. DR FAIRLY ADMITTED THAT THE TAX EFFECT I N DEPARTMENTS APPEAL IS BELOW 10 LAKHS, WE FIND THAT THE REVENUE HAS ALSO CHALLEN GED THE ASSESSMENT OF 3 ITA NO. 1826/MUM/2013 ASSESSMENT YEAR: 2009-10 CAPITAL GAIN OF RS. 25,56,900/- AS LONG TERM CAPITA L GAIN BY THE LD. CIT(A). THE TAX EFFECT, HOWEVER, IS BELOW RS. TEN LACS. FURTHER , THE ISSUE RAISED IN APPEAL DOES NOT FALL UNDER ANY OF THE EXCEPTIONS SPECIFIED IN PARA 8 OF THE CIRCULAR. SINCE, IT HAS BEEN SPECIFICALLY CLARIFIED IN THE CI RCULAR AFORESAID THAT THE INSTRUCTION WILL APPLY RETROSPECTIVELY TO ALL THE P ENDING APPEALS; THE PRESENT APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. W E, THEREFORE, DISMISS THE SAME IN LIMINE . ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH MAY, 2016 SD/- SD/- ( SANJAY ARORA ) (RAM LAL NEGI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 24/05/2016 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' , $ !'% , / DR, ITAT, MUMBAI 6. &' ( / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA