Iqbal Pyarali Tejani, Pune V. ITO (TRO) WD 2(2), Range-2, Pune

ITA 2012/PUN/2012

• Counselvise Citation: 201224514 RSA 2012
• Duration Of Justice: 11 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 18-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: N O N E
• Keywords: Gift; Revised return
• Section: 143(3); 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE: SHRI G. S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 2012 / P N/ 20 12 ASSESSMENT YEAR : 2008 - 09 IQBAL PYARALI TEJANI 16B/1, SAROSH BHAVAN, DR. AMBEDKAR ROAD, PUNE CAMP, PUNE VS. INCOME TAX OFFICER (TRO), WD. - 2(2), RANGE - 2, SWARGATE OFFICE, 2 ND FLOOR, SWARGATE, PUNE (APPELLANT) (RESPONDENT) PAN NO. AALPT8066G APPELLANT BY: N O N E RESPONDENT BY: SHRI RAJIV JAIN DATE OF HE ARING : 19 - 09 - 2013 DATE OF PRONOUNCEMENT : 20 - 09 - 2013 ORDER P ER R.S. PADVEKAR , JM : - THIS APPEAL IS FILED BY THE ASSESSEE CHALLENGING THE IMPUGNED ORDER OF THE LD. CIT(A) - II, PUNE DATED 15 - 06 - 2012 FOR THE A.Y. 2008 - 09. THE ASSESSEE HAS TAKEN TH E FOLLOWING GROUNDS: 1. THE LEARNED COMMISSIONER OF INCOME TAX APPEAL - II PUNE ERRED IN NOT ACCEPTING THE CLAIM OF APPELLANT FOR EXEMPTION OF LONG TERM CAPITAL GAIN ON SALE OF SELF OCCUPIED RESIDENTIAL FLAT EXEMPT U/S 54 ON WHICH INCOME TAX WRONGLY DEPOSITED T HE APPELLANT. 2. THE LEARNED COMMISSIONER OF INCOME TAX ERRED IN NOT GIVING RELIEF TO THE CLAIM OF APPELLANT FOR EXEMPTION OF LONG TERM CAPITAL GAIN FROM SALE OF RESIDENTIAL FLAT U/S 54 IN VIEW OF THE JUDGEMENT OF BOMBAY HIGH COURT IN APPEAL NO. 3908 OF 2010 DELIVERED ON 21 ST JUNE - 2012 IN THE CASE OF CIT CENTRAL - I VS PRUTHVI BROKERS & SHAREHOLDERS PVT. LTD. EXEMPTION NOT CLAIMED IN THE RETURN OF INCOME BUT CLAIMED BY A LETTER DURING THE ASSESSMENT PROCEEDINGS U/S 143(2). 2. THE FACTS IN BRIEF ARE AS UNDER. THE ASSESSEE IS AN INDIVIDUAL . HE FILE D THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.54,04,265/ - FOR THE A.Y. 2008 - 09 ON 30 - 03 - 2009. THE RETURN WAS PROCESSED U/S. 143(1) . S UBSEQUENTLY , THE ASSESSEES CASE WAS SELECTED FOR SCRUTINY AND 2 ITA NO. 2012/PN/2012, IQBAL PYARALI TEJANI, PUNE ASSESSMENT H AS BEEN COMPLETED U/S. 143(3) OF THE ACT. IN THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE MADE A FRESH CLAIM THAT THE ASSESSE WAS A CO - OWNER OF THE RESIDENTIAL FLAT NO. A - 5, KONARK ESTATE CO - OPERATIVE HSG. SOCIETY LTD. BUND GARDEN ROAD, PUNE WHICH WA S PURCHAS ED ON 10 - 03 - 1989. THE SAID FLAT WAS SOLD ON 30 - 04 - 2007 FOR RS.75,00,000/ - . T HE ASSESSEE HAS DETERMINED THE LONG TERM CAPITAL GAIN OF RS.35,64,286/ - ON THE SALE OF SAID FLAT. THE ASSESSEE BOOKED NEW RESIDENTIAL FLAT IN THE UNDER CONSTRUCTION BUI LDING KNOWN AS GODS GIFT VIDE AGREEMENT DATED 25 - 01 - 2006 AND THE SAID FLAT WAS COMPLETED AROUND SEPTEMBER, 2007 AND THE POSSESSION OF THE NEW RESIDENTIAL FLAT WAS OBTAINED VIDE POSSESSION LETTER DATED 10 - 04 - 2007 ISSUED BY THE DEVELOPERS. IT WAS CLAIMED THAT THE ASSESSEE HAS UTILIZED THE ENTIRE LONG TERM CAPITAL ARISING FROM THE SALE OF HIS OLD FLAT FOR PURCHASING THE NEW FLAT AND BY MISTAKE THE ASSESSEE HAS PAID THE CAPITAL GAIN TAX OF RS.7,12,857/ - WITHOUT CLAIMING ANY DEDUCTION/EXEMPTION . THE CLAIM OF THE ASSESSEE WAS REJECTED BY THE ASSESSING OFFICER. THE ASSESSEE CHALLENGED THE ACTION OF THE ASSESSING OFFICER BEFORE THE LD. CIT(A) . I T WAS STATED BEFORE THE LD. CIT(A) THAT UNDER THE MISTAKEN BELIE F, THE ASSESSEE DID NOT CLAIM ANY EXEMPTION/DEDUCTION AND PAID THE CAPITAL GAIN TAX . THE LD. CIT(A) REFERRED TO THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF GOETZ INDIA LTD. 284 ITR 323 AND OBSERVED THAT THE ASSESSING OFFICER WAS RIGHT TO REJECT THE CLAIM OF THE ASSESSEE FOR DEDUCTION/EXEMPTION AS NO REVISED RETURN WAS FILED. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 3. WE HAVE HEARD THE LD. DR. THE ASSESSEE HAS FILED THE APPLICATION FOR ADJOURNMENT BUT CO N SIDERING THE FACT THAT THE MATTER CAN BE ADJUDICATED IN THE ABSENCE OF THE ASSESSEE , W E , ACCORDINGLY HEARD THE CASE . T HE FACTS ARE ALREADY NARRATED. SO FAR AS THE DECISION OF THE GOETZ INDIA LTD. (SUPRA) IS CONCERNED THE TRIBUNAL HAS VERY MUCH POWER TO ADMIT ANY LEGAL CLAIM. WE ACCORDINGLY ADMIT THE CLAIM OF THE ASSESSEE 3 ITA NO. 2012/PN/2012, IQBAL PYARALI TEJANI, PUNE FOR ADJUDICATION AND RESTORE THE MATTER BACK TO THE FILE OF THE CIT(A) TO DECIDE THE GROUNDS TAKEN BY THE ASSESSEE ON MERIT A FTER GIVING OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. T HE ASSESSEE SHOULD NOT BE DEPRIVED OF THE LEGITIMATE CLAIM. THE CIT(A) IS DIRECTED TO PAS S SPEAKING ORDER ON THE MERIT ALSO. HE CAN CALL REMAND REPORT FROM THE ASSESSING OFFICER, IF HE CONSIDER I T NECESSARY. ACCORDINGLY, THE ORDER OF THE CIT(A) IS SET ASIDE AND MATTER IS RESTORE D BACK TO HIS FILE IN THE LIGHT OF OUR ABOVE OBSERVATION S AND DI RECTIONS. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 20 - 09 - 20 1 3 SD/ - SD/ - ( G.S. PANNU ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 20 TH SEPTEMBER, 20 1 3 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - II, PUNE 4 THE CIT - II, PUNE 5 THE DR, ITAT, A BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLA TE TRIBUNAL PUNE