Income Tax Officer, Bangalore V. Smt.Papanna Bhagya, Bangalore

ITA 1847/BANG/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4759 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 28-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Period of limitation
• Section: 143(3); 54; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH A BEFORE S HRI N.V. VASUDEVAN , JUDICIAL MEMBER AND SHRI INTURI RAMA RAO , ACCOUNTANT MEMBER I.T . A. NO. 1847 /BANG/20 16 (ASSESSMENT YEAR : 20 16 ) INCOME TAX OFFICER, WARD 5(2)(3), BANGALORE. . APPELLANT. VS. SMT. PAPANNA BHAGYA, NO.83, PADMA PLAZA, GANDHI BAZAAR, MAIN ROAD, BANGALORE - 560 004 . .. RESPONDENT. C.O. NO.76/BANG/2017 I.T. A. NO. 1847/BANG/2016 (ASSESSMENT YEAR : 20 16 ) (BY ASSESSEE) REVENUE BY : DR. SANDEEP GOEL, ADDL.CIT (D.R) ASSESSEE/C.O. BY : SHRI S.R. KIRON, C.A. DATE OF H EARING : 23.05.2018. DATE OF P RONOUNCEMENT : 31 .0 5 .201 8 . O R D E R PER SHRI INTURI RAMA RAO , A .M . : THIS IS AN APPEAL FILED BY THE REVENUE DIRECTED AGAINST THE ORDER OF LEARNED COMMISSION ER OF INCOME TAX (APPEALS), BANGALORE DT.26.07.2016 FOR THE ASSESSMENT YEAR 2009 - 10. 2 IT A NO. 1847 /BANG/201 6 & C.O. NO.76/BANG/2017 2. THE REVENUE RAISED THE FOLLOWING GROUNDS OF APPEAL : 3. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM HOUSE P ROPERTY AND BUSINESS INCOME FROM THE PARTNERSHIP. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, ORIGINAL ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) VIDE ORDER DT.21.10.2011. SUBSEQUENTLY, THE LEARNED CIT (APPEALS) EXERCISING POWER OF REVISION VESTED WI TH HIM UNDER SECTION 263 OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') SET ASIDE THE ASSESSMENT WITH A DIRECTION TO ASSESSING OFFICER TO RE - EXAMINE THE ELIGIBILITY OF THE AS SESSEE S CLAIM UNDER SECTION 54 OF THE ACT AND ALSO EXAMINE THE NATURE OF PAY MENT OF RS.10 LAKHS MADE BY THE ASSESSEE TO THE JOINT OWNER. PURSUANT TO THE 3 IT A NO. 1847 /BANG/201 6 & C.O. NO.76/BANG/2017 DIRECTIONS OF THE LEARNED CIT, THE ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFICER VIDE ORDER DT.20.2.2015 ASSESSING THE SHORT TERM CAPITAL GAINS OF RS.17,50,130 AND LONG TERM CAPITAL GAINS OF RS.25,44,018 DENYING THE CLAIM UNDER SECTION 54 TO THE ASSESSEE. BEING AGGRIEVED THE ASSESSEE FILED AN APPEAL BEFORE THE LEARNED CIT (APPEALS) WHO BY THE IMPUGNED ORDER ALLOWED THE APPEAL AS UNDER : 4 IT A NO. 1847 /BANG/201 6 & C.O. NO.76/BANG/2017 BEING AGGRIEVED THE REVENUE IS IN APPEAL BEFORE US. 5 IT A NO. 1847 /BANG/201 6 & C.O. NO.76/BANG/2017 4. WE FIND THAT THE ORDER OF THE LEARNED CIT (APPEALS) IS IN CONSONANCE WITH THE WELL SETTLED PROPOSITION OF LAW THAT THERE NEED NOT BE DIRECT NEXUS BETWEEN THE SALE PROCEEDS OF PROPERTY SOLD AND THE PURCHASE CONSIDERATION PA ID FOR THE ACQUISITION OF NEW HOUSE. SINCE THE NEW HOUSE WAS ACQUIRED WITHIN A PERIOD OF LIMITATION PRESCRIBED UNDER THIS STATUTE I.E. ONE YEAR PRIOR TO DATE OF SALE OF ASSET, WE DO NOT INTEND TO INTERFERE WITH THE ORDERS OF THE LEARNED CIT (APPEALS). A CCORDINGLY, THE APPEAL FILED BY THE REVENUE IS DISMISSED. 5. THE CROSS OBJECTION FILED BY THE ASSESSEE ARE AS UNDER : 6 IT A NO. 1847 /BANG/201 6 & C.O. NO.76/BANG/2017 6. FROM THE PERUSAL OF THE LEARNED CIT (APPEALS) ORDER, THE ISSUES RAISED IN THE CROSS OBJECTION HAVE NOT BEEN ADJ UDICATED BY THE CIT(A) THOUGH THE ASSESSEE HAD RAISED SUCH PLEA BEFORE CIT(A). WE DEEM IT FIT TO DIRECT CIT(A) TO CONSIDER AND DECIDE THE PLEA OF THE ASSESSEE. WE SET ASIDE THE ORDER OF CIT(A) TO THAT EXTENT AND RESTORE THE ISSUE TO CIT(A) FOR FRESH CONS IDERATION. HENCE THE C.O. FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7 IT A NO. 1847 /BANG/201 6 & C.O. NO.76/BANG/2017 7. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED AND C.O. OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE 31 ST DAY OF MAY, 201 8 . S D/ - (N.V. VASUDEVAN) JUDICIAL MEMBER S D/ - ( INTURI RAMA RAO ) ACCOUNTANT MEMBER BANGALORE, DT. 31 .05.2018. *REDDY GP /EKS COPY TO : 1 APPELLANT 4 CIT(A) 2 RESPONDENT 5 DR. ITAT, BANGALORE 3 CIT 6 GUARD FILE SENIOR PRIVAT E SECRETARY INCOME TAX APPELLATE TRIBUNAL BANGALORE