Shri Nileshkumar Natvarlal Patel, Surat V. The Dy. Commissioner of Income Tax, Circle-1(2), Surat

ITA 2202/AHD/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1853 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 26-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITHA V NAIR
• Assessee Lawyers: KARAN SANGHANI
• Keywords: Revised return
• Section: 54; 143(3); 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCHES, SURAT BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER SHRI NILESHKUMAR NATVARLAL PATEL, 2/1470, NANUMAN SHERI, SANGRAMPURA, DISTRICT: SURAT PAN: ACSPP7550N (APPELLANT) VS THE DCIT, CIRCLE - 1(2), SURAT (RESPONDENT) REVENUE BY : SMT. SMITHA V. NAIR , SR. D . R. ASSESSEE BY: S H RI KARAN SANGHANI , A.R. DATE OF HEARING : 16 - 11 - 2 018 DATE OF PRONOUNCEMENT : 13 - 0 2 - 2 019 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS ASS ESSEE S APPEAL FOR A.Y. 2012 - 13 , AR ISES FROM ORDER OF THE CIT(A) - II, SURAT DATED 04 - 05 - 2016 , IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . I T A NO . 2202 / A HD/20 16 A S SESSME NT YEAR 2012 - 13 I.T.A NO. 2202 /AHD/20 16 A.Y. 2012 - 13 PAGE NO SHRI NILESHKUMAR NATVARLAL PATEL VS. DCIT 2 2. SINCE A LL THE THREE GROUNDS OF APPEAL OF THE ASSESSEE ARE CONNECTED TO T HE COMMON ISSUE OF CLAIM OF DEDUCTION U/S. 54 AS AGAINST CLAIM OF DEDUCTION UNDER SECTION 54F OF THE ACT THEREFORE ALL ARE TAKEN UP TOGETHER FOR ADJUDICATION BY THIS COMMON ORDER . 3. THE FACT IN BRIEF IS THAT DURING THE COURSE OF ASSESSMENT PROCEEDIN GS, THE ASSESSING OFFICER NOTICED THAT ASSESSEE HAS CL AIMED DEDUCTION U/S. 54 AND 54F IN THE RETURN OF INCOME FILED BY ON 27 TH MARCH, 2013. HOWEVER , DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS FILED REVISED COMPUTATION OF INCOME AND CLA IMED DEDUCTION U/S. 54 ONLY AND NOT U/S. 54F OF THE ACT. THE ASSESSEE HA D SOLD THREE PROPERTIES FOR A NET CONSIDERATION OF RS. 2.10 CRORES. THE ASSESSEE HAD CONSTRUCTED A HOUSE PROPERTY AT H AMU M AN S ERI SANGRAMPURA , SURAT FOR RS. 87 , 67 , 245/ - AND HAD PUR CHASED A PROPERTY AT D UMUS FOR RS. 57 , 72 , 423/ - BUT IN THE RETURN OF INCOME THE ASSESSEE HA D CLAIMED DEDUCTION U/S. 54 AND 54F OF THE ACT FOR THE ABOVE TWO PROPERTIES RESPECTIVELY. HOWEVER, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS FILE D REVISED OF COMPUTATION OF INCOME ON 8 TH JANUARY, 2015 CORRECTING THE DEDUCTION CLAIMED U/S. 54 F TO 54 OF THE ACT. THE ASSESSING OFFICER HAS NOT ACCEPTED THE SUBMISSION OF THE ASSESSEE ON THE GROUND THAT THAT IN ABSENCE OF THE REVISED RETURN AS PROVIDED U/S. 139(5), HE IS BOUND TO MAKE ASSESSMENT ON THE BASIS OF ORIGINAL RETURN OF INCOME. 4. AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE LD. CIT(A). THE LD. CIT(A) HA D DISMISSED THE APPEAL OF THE ASSESSEE HOLDING THAT THERE WAS NO PROVISION UNDER THE INCOM E TAX ACT TO ENABLE A ASSESSEE TO REVISE HIS RETURN OF I.T.A NO. 2202 /AHD/20 16 A.Y. 2012 - 13 PAGE NO SHRI NILESHKUMAR NATVARLAL PATEL VS. DCIT 3 INCOME BY WAY OF FILING A COMPUTATION OF INCOME AND MAKING A CLAIM OF DEDUCTION U/S 54 WHICH HAS NOT BEEN SHOWN IN THE RETURN OF INCOME. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIA L ON RECORD CAREFULLY. THE ASSESSING OFFICER HAD DISALLOWED THE CLAIM OF THE ASSESSEE U/S. 54F WITHOUT CONSIDERING THE CLAIM U/S. 54 OF THE ACT ON MERIT ON THE GROUND THAT THE ASSESSEE HAD NOT FILED THE REVISED RETURN OF INCOME AND THE ORIGINAL RETURN OF INCOME WAS FILED U/S. 139(4) OF THE ACT. IT IS NOTICED THAT THE ASSESSEE HAD FILED REVISED COMPUTATION OF INCOME DURING THE ASSESSMENT PROCEEDINGS CLAIMING DEDUCTION U/S. 54 ONLY AND NOT U/S. 54F OF THE ACT. WE HAVE ALSO PERUSED THE JUDICIAL PRONOUNCEME NT IN THE CASE OF [2017] 78 TAXMANN.COM 265 (DELHI) RAJESH KUMAR AGARWAL VS. COMMISSIONER OF INCOME TAX IN WHICH IT WAS HELD THAT WHERE ASSESSEE SET OFF CAPITAL GAIN AGAINST CAPITAL LOSS AND, THUS, DID NOT CLAIM RELIEF UNDER SECTION 54F IN ORIGINAL RETURN AND TIME FOR FILING REVISED RETURN LAPSED, IF SET OFF AS CLAIMED WAS NOT PERMITTED, EXEMPTION UNDER SECTION 54F WAS TO BE GRANTED IN THE REVISION UNDER SECTION 264. WE OBSERVED THAT IN THE CASE OF GOETZE (INDIA) LTD. (SUPRA), THE SUPREME COURT HAD OCCASIO N TO DEAL WITH A SLIGHTLY DIFFERENT SET OF CIRCUMSTANCES WHERE THE ASSESSEE SOUGHT TO CLAIM DEDUCTION AFTER THE TIME FOR COMPLETION OF THE REVISED RETURN HAD ELAPSED WHEREAS IN THE CASE OF THE ASSESSEE THE CLAIM HAD BEEN MADE BEFORE THE CONCLUSION OF THE A SSESSMENT PROCEEDINGS, AND THAT, THE REQUISITE MATERIAL WAS ALSO FILED. IN VIEW OF THE ABOVE DISCUSSION, WE ARE OF THE OPINION THAT THE CLAIM OF THE ASSESSEE SHOULD HAVE BEEN CONSIDERED BY THE A SSESSING OFFICER AFTER NECESSARY VERIFICATION. THEREFORE, WE R EMIT THE MATTER TO THE ASSESSING I.T.A NO. 2202 /AHD/20 16 A.Y. 2012 - 13 PAGE NO SHRI NILESHKUMAR NATVARLAL PATEL VS. DCIT 4 OFFICER FOR CONSIDERATION THE CLAIM OF THE ASSESSEE ON MERIT AS PER LAW AFTER NECESSARY VERIFICATION. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF THE ASSES SEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PR ONOUNCED IN THE OPEN C OURT ON 13 - 0 2 - 201 9 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 13 /0 2 /2019 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,