N.S.Mohan, CHENNAI V. ITO, CHENNAI

ITA 2070/CHNY/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7437 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 20-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: E PAVUNA SUNDARI
• Assessee Lawyers: REMA SMRITHI V K
• Section: 54F

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . . . , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.1746/CHNY/2015 ' (' / ASSESSMENT YEAR : 2009-10 SMT. SUSHIL MOHAN, NO.56, HARLEYS ROAD, KILPAUK, CHENNAI - 600 010. PAN : APXPS 7097 B V. THE INCOME TAX OFFICER, BUSINESS WARD XIV(2), CHENNAI - 600 034. (*+/ APPELLANT) (,-*+/ RESPONDENT) ./ ITA NO.2070/CHNY/2015 ' (' / ASSESSMENT YEAR : 2009-10 SHRI N.S. MOHAN, NO.56, HARLEYS ROAD, KILPAUK, CHENNAI - 600 010. PAN : AGWPM 9852 G V. THE INCOME TAX OFFICER, BUSINESS WARD XIII(4), CHENNAI - 600 034. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANTS BY : MS. REMA SMRITHI V.K., ADVOCATE ,-*+ . / / RESPONDENT BY : SMT. E. PAVUNA SUNDARI, JCIT 0 . 1$ / DATE OF HEARING : 26.06.2018 2!( . 1$ / DATE OF PRONOUNCEMENT : 05.07.2018 2 I.T.A. NO.1746/CHNY/15 I.T.A. NO.2070/CHNY/15 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: BOTH THE APPEALS OF TWO INDEPENDENT ASSESSEES AR E DIRECTED AGAINST THE RESPECTIVE ORDERS OF THE COMMISSIONER O F INCOME TAX (APPEALS)-III AND 12, CHENNAI. SINCE COMMON ISSUE ARISES FOR CONSIDERATION IN BOTH THE APPEALS, WE HEARD BOTH TH E APPEALS TOGETHER AND DISPOSING OF THE SAME BY THIS COMMON ORDER. 2. LETS FIRST TAKE THE CASE OF SMT. SUSHIL MOHAN I N I.T.A. NO.1746/CHNY/2015. 3. MS. REMA SMRITHI V.K., THE LD.COUNSEL FOR THE AS SESSEE, SUBMITTED THAT THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 54F OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') BEFORE TH E CIT(APPEALS) BY RAISING A SPECIFIC GROUND AS GROUND NO.5. ACCORDIN G TO THE LD. COUNSEL, THE ASSESSEE HAS CLAIMED THE COST OF IMPROVEMENT TO WARDS INTERIOR AND WOOD WORK TO THE EXTENT OF 13,92,300/- WHILE CLAIMING DEDUCTION UNDER SECTION 54F OF THE ACT. ACCORDING TO THE LD. COUNS EL, THIS GROUND WAS NOT DISPOSED OF BY THE CIT(APPEALS). 4. WE HEARD SMT. E. PAVUNA SUNDARI, THE LD. DEPARTM ENTAL REPRESENTATIVE ALSO. ACCORDING TO THE LD. D.R., TH E ISSUE OF COST OF IMPROVEMENT TO THE EXTENT OF 13,92,300/- WAS SPECIFICALLY RAISED BY THE 3 I.T.A. NO.1746/CHNY/15 I.T.A. NO.2070/CHNY/15 ASSESSEE BEFORE THE CIT(APPEALS) AS GROUND NO.5. T HE CIT(APPEALS) FOUND THAT NO EVIDENCE WAS PRODUCED TOWARDS EXPENDI TURE OF 13,92,300/-. THEREFORE, ACCORDING TO THE LD. D.R., IT IS NOT A CASE OF NON-DISPOSAL OF SPECIFIC GROUND BUT A CASE OF FAILU RE OF THE ASSESSEE TO SUBSTANTIATE THE CLAIM MADE BEFORE THE CIT(APPEALS) . 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSEE HAS RAISED A GROUND WITH REGARD TO IMPROVEMENT SAID TO BE MADE TO THE PROPERTY TO THE EXTENT OF 13,92,300/- FOR THE PURPOSE OF COMPUTATION OF DEDUCTION UNDER SECTION 54F OF THE ACT. AS RIGHTLY SUBMITTED BY THE LD. D.R., THE CIT(APPEALS) FOUND THAT THERE WAS NO EVID ENCE FOR THE EXPENDITURE OF 13,92,300/-. THEREFORE, IT IS NOT A CASE OF NON-DI SPOSAL OF SPECIFIC GROUND RAISED BY THE ASSESSEE BEFORE THE C IT(APPEALS), BUT A CASE OF FAILURE TO SUBSTANTIATE THE CLAIM MADE. TH EREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT AN OPPORTUNITY CAN B E GIVEN TO THE ASSESSEE TO SUBSTANTIATE THE CLAIM OF COST OF IMPRO VEMENT. GIVING ONE MORE OPPORTUNITY TO THE ASSESSEE MAY NOT BE PREJUDI CIAL TO THE INTERESTS OF REVENUE IN ANY WAY. THIS TRIBUNAL IS OF THE CON SIDERED OPINION THAT GIVING AN OPPORTUNITY TO THE ASSESSEE TO PRODUCE NE CESSARY MATERIAL TO SUBSTANTIATE HER CLAIM OF COST OF IMPROVEMENT TO TH E EXTENT OF 13,92,300/- WOULD DEFINITELY PROMOTE THE CAUSE OF J USTICE. ACCORDINGLY, 4 I.T.A. NO.1746/CHNY/15 I.T.A. NO.2070/CHNY/15 ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE ISSUE OF COST OF 13,92,300/- TOWARDS IMPROVEMENT FOR THE PURPOSE OF COMPUTATION OF DEDUCTION UNDER SECTION 54F OF THE ACT IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE- EXAMINE THE MATTER IN THE LIGHT OF THE MATERIAL THAT MAY BE FILED BY THE ASSESSEE AND THEREAFTER DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW, AFT ER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 6. NOW COMING TO THE CASE OF SHRI N.S. MOHAN IN I.T .A. NO.2070/CHNY/2015, THE FIRST GROUND OF THE APPEAL I S WITH REGARD TO ADDITION OF 10,80,265/- AND 10,65,909/- TO THE INCOME RETURNED. 7. MS. REMA SMRITHI V.K. THE LD.COUNSEL FOR THE ASS ESSEE, VERY FAIRLY SUBMITTED THAT THE ASSESSEE IS NOT PRESSING THIS GROUND AND SHE HAS ALSO MADE AN ENDORSEMENT TO THAT EFFECT IN THE APPE AL FOLDER. ACCORDINGLY, THE GROUND RAISED BY THE ASSESSEE WITH REGARD TO ADDITION OF 10,80,265/- AND 10,65,909/- IS DISMISSED AS NOT PRESSED. 8. THE NEXT GROUND OF APPEAL IS WITH REGARD TO COMP UTATION OF CAPITAL GAIN. 9. MS. REMA SMRITHI V.K. THE LD.COUNSEL FOR THE ASS ESSEE, SUBMITTED THAT THE ASSESSING OFFICER COMPUTED THE E NTIRE CAPITAL GAIN IN THE PROPERTY IN THE HANDS OF THE ASSESSEE IGNORING THE SUBMISSION OF THE 5 I.T.A. NO.1746/CHNY/15 I.T.A. NO.2070/CHNY/15 ASSESSEE THAT HE OWNS ONLY 25.21% IN THE PROPERTY. ACCORDING TO THE LD. COUNSEL, ONLY TO THAT EXTENT OF OWNERSHIP OF THE AS SESSEE, THE CAPITAL GAIN CAN BE ASSESSED. 10. WE HEARD SMT. E. PAVUNA SUNDARI, THE LD. DEPART MENTAL REPRESENTATIVE ALSO. IT IS NOT IN DISPUTE THAT THE CAPITAL GAIN IS TO BE ASSESSED ONLY IN THE HANDS OF THE OWNER OF THE ASSE T TO THE EXTENT OF THE OWNERSHIP. SINCE THE ASSESSEE CLAIMS THAT HE OWNS ONLY 25.21% OF THE PROPERTY SOLD, THIS TRIBUNAL IS OF THE CONSIDERED O PINION THAT THE MATTER NEEDS TO BE RE-EXAMINED BY THE ASSESSING OFFICER. ACCORDINGLY, ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE AND THE ISSUE OF CAPITAL GAIN IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE MATTER IN THE LIGHT OF THE MAT ERIAL THAT MAY BE FILED BY THE ASSESSEE AND THEREAFTER DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW, AFTER GIVING A REASONABLE OPPORTUNITY TO THE A SSESSEE. 11. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE S ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 5 TH JULY, 2018 AT CHENNAI. SD/- SD/- (. !' ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 5 TH JULY, 2018. 6 I.T.A. NO.1746/CHNY/15 I.T.A. NO.2070/CHNY/15 KRI. . ,156 76(1 /COPY TO: 1. *+ /APPELLANTS 2. ,-*+ /RESPONDENTS 3. 0 81 () /CIT(A)-III, CHENNAI-34 4. 0 81 () /CIT(A)-12, CHENNAI-34 5. 0 81 /CIT, CHENNAI-3, CHENNAI-34 6. 69 ,1 /DR 7. :' ; /GF.