DR. SANJAY J. MEHTA, MUMBAI V. ACIT - 16(3), MUMBAI

ITA 2161/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1002 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 04-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VVUDGTADGAR
• Section: 143(3); 54F; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH G, MU MBAI BEFORE SHRI R.C.SHARMA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 2161/MUM/2016 (ASSESSMENT YEAR-2008-09) DR. SANJAY J. MEHTA 2/5, HANVANT BHAVAN, 90/E, NAPEAN SEA ROAD, MUMBAI-400006. PAN: AFOPM8467J VS. ACIT-16(3), MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MRUGAKSHI JOSHI (AR) REVENUE BY : SHRI V,VUDGTADGAR (DR) DATE OF HEARING : 27.12.2017 DATE OF PRONOUNCEMENT : 03.01.2018 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS APPEAL BY ASSESSEE UNDER SECTION 253 OF THE IN COME-TAX ACT (THE ACT) IS DIRECTED AGAINST THE ORDER LD. CIT(A)-7, M UMBAI DATED 29.02.2016 FOR ASSESSMENT YEAR (AY) 2008-09 WHICH IN TURN ARIS ES FROM THE PENALTY ORDER UNDER SECTION 271(1)(C) DATED 30.03.2014 PASS ED BY THE ASSESSING OFFICER (AO). THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. PENALTY LEVIED U/S 271(1)(C) FOR EXEMPTION U/S. 54F RS. 1,35,05,423/- A) THE LEARNED CIT(A) ERRED IN HOLDING THAT THE APPELL ANT HAS NOT PURCHASED ANY RESIDENTIAL HOUSE AS REQUIRED U/S. 54 F AND CONFIRMED THE PENALTY U/S 271(1)(C), ALTHOUGH THE APPELLANT HAS F URNISHED SUFFICIENT DOCUMENTARY EVIDENCE TO SHOW THAT THE PURCHASE WAS GENUINE AND BONAFIDE. B) THE LEARNED CIT(A) ERRED IN CONFIRMING THE DENIAL O F EXEMPTION U/S. 54F, ON THE GROUND THAT THE APPELLANT HAS NOT MADE A BONAFIDE ITA NO. 2161/M/2016- DR. SANJAY J. MEHTA 2 AGREEMENT FOR PURCHASE OF A RESIDENTIAL HOUSE, SINC E IT WAS NOT DULY STAMPED AND REGISTERED BEFORE THE FILING OF THE RET URN. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME FOR RELEVANT AY ON 25.10.2008. THE ASSESSMENT WAS COMPL ETED ON 23.12.2010 UNDER SECTION 143(3) OF THE ACT. THE AO WHILE PASSI NG THE ASSESSMENT ORDER MADE THE ADDITION OF RS. 3,96,96,640/- BY DISALLOWI NG LONG TERM CAPITAL GAIN (LTCG) AND MADE ADDITION ON ACCOUNT OF INTERES T EXPENSES OF RS. 12,28,883/-. ON APPEAL BEFORE THE LD. CIT(A), THE A DDITION ON ACCOUNT OF INTEREST OF RS. 12,28,883/- WAS RESTRICTED TO RS. 1 0,00,000/-. HOWEVER, THE ADDITION OF RS. 3,96,96,640/- ON ACCOUNT OF LTCG WA S SUSTAINED. THE AO LEVIED THE PENALTY ON DISALLOWANCE OF DEDUCTION UND ER SECTION 54F OF RS. 3,96,96,640/- AND ON ADDITION OF INTEREST OF RS. 12 ,28,883/-. THE AO LEVIED THE PENALTY OF RS. 1,35,05,423/- @ 100% OF THE TAX SOUGHT TO BE EVADED. ON APPEAL BEFORE THE LD. CIT(A), THE PENALTY WAS SUSTA INED ON DISALLOWANCE OF LTCG. HOWEVER, IT WAS DELETED ON INTEREST EXPENSES. THUS, FURTHER AGGRIEVED BY THE ORDER OF LD. CIT(A), THE PRESENT A PPEAL IS FILED BEFORE US. 3. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (AR ) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENU E AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR OF THE ASS ESSEE ARGUED THAT THE GROUNDS OF APPEAL RAISED IN THE PRESENT APPEAL ARE COVERED BY THE DECISION OF TRIBUNAL IN ASSESSEES CASE IN QUANTUM APPEAL. IT W AS ARGUED THAT THE ADDITION ON DISALLOWANCE OF CLAIM/EXEMPTION UNDER S ECTION 54F HAS ALREADY BEEN ALLOWED IN FAVOUR OF ASSESSEE BY THE TRIBUNAL IN ASSESSEES APPEAL VIDE ITA NO. 2161/M/2016- DR. SANJAY J. MEHTA 3 ORDER DATED 15.02.2017. ON THE OTHER HAND, THE LD. DR FAIRLY CONCEDED THAT THE TRIBUNAL HAS DELETED THE DISALLOWANCE ON ACCOUN T OF LTCG. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE HAVE NO TED THAT THE AO LEVIED THE PENALTY ON DISALLOWANCE OF DEDUCTION UNDER SECT ION 54F FOR RS. 3,96,96,640/- AND ON ADDITION OF INTEREST OF RS. 12 ,28,883/-. ON APPEAL, THE LD. CIT(A) DELETED THE PENALTY ON INTEREST EXPENDIT URE OF RS. 12,28,833/-. THE ADDITION/DISALLOWANCE UNDER SECTION 54F HAS BEE N DELETED BY THE TRIBUNAL IN ITA NO. 7795/MUM/2012 DATED 15.02.2017. THUS, CONSIDERING THE FACT THAT THE ADDITION ON ACCOUNT OF LTCG ON WH ICH THE PENALTY WAS SUSTAINED BY LD. CIT(A) HAS ALREADY BEEN DELETED BY THE TRIBUNAL IN ITA NO. 7795/MUM/2012 DATED 15.02.2017. THUS, THE CONSEQUEN T PENALTY ORDER IS ALSO SET-ASIDE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. 6. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD DAY OF JANUARY 2018. SD/- SD/- (R.C.SHARMA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 03/01/2018 S.K.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/