The ITO, ( Intl. Taxn.), Baroda V. Shri Paresh M. Patel, Baroda

ITA 2291/AHD/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8427 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-04-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 03-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: KINJAL V SHAH
• Keywords: Capital asset
• Section: 143(3)

Judgement Text

ITA NO. 2291/AHD/2015 DCIT VS. PARESH M PATEL ASSESSMENT YEAR: 2011-12 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR AM AND S S GODARA JM] ITA NO. 2291/AHD/2015 ASSESSMENT YEAR: 2011-12 DEPUTY COMMISSIONER OF INCOME-TAX ............ ......APPELLANT INTERNATIONAL TAXATION, BARODA VS. PARESH M. PATEL ...........................RESPONDENT 301, ALAP APARTMENT, 21, PURUSHOTTAM NAGAR, BARODA-390020 [PAN : BIIPP 6176 R] APPEARANCES BY: PRASOON KABRA FOR THE APPELLANT KINJAL V. SHAH FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 17.04.2018 DATE OF PRONOUNCING THE ORDER : 18.04.2018 O R D E R PER PRAMOD KUMAR, AM: 1. BY WAY OF THIS APPEAL, THE ASSESSING OFFICER HAS CHALLENGED CORRECTNESS OF THE ORDER DATED 22 ND MAY, 2015 PASSED BY THE BY THE CIT(A-13, AHMEDABAD , IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE IN COME-TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2011-12, ON THE FOLLOWING GROUNDS:- 1) THE ID. CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN HOLDING THAT THE ASSESSEE CAN CLAIM BENEFIT OF SECTION 54EC OF THE A CT TWICE WITH RESPECT TO THE SAME CAPITAL GAINS IF THE INVESTMENT IS MADE IN TWO SEPARATE FINANCIAL YEARS. 2) THE ID.CIT(A) HAS FAILED TO APPRECIATE THAT IF T HE GAIN HAS ARISEN IN ONE YEAR, THE DEDUCTION U/S.54EC OF THE ACT CANNOT BE A LLOWED IN RESPECT OF THIS GAIN ON ACCOUNT OF INVESTMENT MADE IN NEXT YEAR MER ELY ON THE GROUND THAT THE INVESTMENT HAS BEEN MADE WITHIN SIX MONTHS OF A RISING OF THE GAINS. 3) THE ID.CIT(A) HAS FAILED TO CONSIDER THE MAXIMUM MONETARY LIMIT OF RS.50,00,000/- STIPULATED U/S. 54EC OF THE ACT IN R ESPECT OF THE SPECIFIED INVESTMENT MADE WITHIN SIX MONTHS IN ANY FINANCIAL YEAR. ITA NO. 2291/AHD/2015 DCIT VS. PARESH M PATEL ASSESSMENT YEAR: 2011-12 PAGE 2 OF 3 4) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE ID.CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 5) IT IS THEREFORE PRAYED THAT THE ORDER OF THE CIT (A) BE CANCELLED AND THAT OF THE ASSESSING OFFICER BE RESTORED TO THE ABOVE EXTE NT. 2. LEARNED REPRESENTATIVES FAIRLY AGREE THAT THE G RIEVANCES IN THE APPEAL ARE COVERED, IN FAVOUR OF THE ASSESSEE, BY A DECISION O F THE CO-ORDINATE BENCH IN THE CASE OF CO-OWNER I.E. SHRI S.M. PATEL VS. ACIT (ITA NO.3603/AHD/2015; ORDER DATED 08.01.2018) WHEREIN THE CO-ORDINATE BENCH, SPEAKING THROUGH ONE OF US (I.E. LEARNED JUDICIAL MEMBER), HAS INTER ALIA OBSERVED AS FOLLOW S:- 2. RELEVANT FACTS ARE IN A VERY NARROW COMPASS. TH IS ASSESSEE JOINTLY SOLD THE CAPITAL ASSET IN QUESTION IN THE RELEVANT PREVI OUS YEAR ON 26.10.2010 FOR RS.6,60,00,000/-. HIS 1/3RD SHARE THEREIN WAS OF RS .2,20,00,000/-. HE THEREAFTER INVESTED RS.1CRORE (SUPRA) IN NHAI BONDS TO CLAIM SECTION 54ECDEDUCTION. BOTH THE LOWER AUTHORITIES DECLINED THE SAME ON THE GROUND THAT THE SAID STATUTORY PROVISION CAPS THE RE-INVES TMENT AMOUNT TO RS.50LACS ONLY. THEY THEREFORE RESTRICT ASSESSEE'S CLAIM TO R S.50LACS TO DISALLOW THE REMAINING EQUAL AMOUNT. WE FIND NO FORCE IN THIS AP PROACH. HON'BLE MADRAS HIGH COURT'S JUDGMENT IN CIT VS. C. JAICHANDER (201 5) 370 ITR 579 (MADRAS) HAS ADMITTEDLY UPHELD A CO-ORDINATE BENCH'S DECISIO N THAT SUCH A DEDUCTION CLAIM OF RS.50 LACS EACH SPREAD OVER TO TWO FINANCI AL YEARS BUT FALLING WITHIN SIX MONTHS OF THE CAPITAL ASSET'S TRANSFER IN QUEST ION IS VERY MUCH ALLOWABLE. WE FURTHER TAKE NOT OF THE FACT THAT THE LEGISLATUR E HAS INSERTED SECOND PROVISO TO SECTION 54EC (1) INTRODUCING THE ABOVE CAP ON RE -INVESTMENT QUANTUM BY THE FINANCE (ACT NO.2), 2014 W.E.F. 01.04.2015 WHER EAS WE ARE DEALING WITH ASSESSMENT YEAR 2011-12. THIS IS NOT THE REVENUE'S CASE THAT THE ABOVE AMENDMENT CARRIES ANY RETROSPECTIVE OPERATION. WE T HEREFORE REJECT MR. KABRA'S VEHEMENT CONTENTIONS SUPPORTING THE IMPUGNE D DISALLOWANCE. THE ASSESSEE'S SOLE SUBSTANTIVE GROUND IS ACCEPTED. 3. WE SEE NO REASONS TO TAKE ANY OTHER VIEW OF THE MATTER THAN THE VIEW SO TAKEN BY THE CO-ORDINATE BENCH. NO SUCH REASONS AR E POINTED OUT BY THE LEARNED DEPARTMENTAL REPRESENTATIVE EITHER. 4. RESPECTFULLY FOLLOWING THE DECISION OF CO-ORDINA TE BENCH (SUPRA), WE DECLINE TO UPHOLD THE PLEA OF THE ASSESSING OFFICER. ACCORDIN GLY, RELIEF GRANTED BY THE CIT(A) STANDS CONFIRMED AND APPROVED. 5. IN THE RESULT, THE APPEAL IS DISMISSED. PRONOUN CED IN THE OPEN COURT TODAY ON THE 18 TH APRIL, 2018 SD/- SD/- S S GODARA PRAMOD K UMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD, THE 18 TH DAY OF APRIL, 2018 **BT ITA NO. 2291/AHD/2015 DCIT VS. PARESH M PATEL ASSESSMENT YEAR: 2011-12 PAGE 3 OF 3 COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: ....ORDER PREPARED AS PER TW O PAGES MANUSCRIPTS OF HONBLE AM (ATTACHED HEREWITH) ON.18.04.2018.............. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 18.04.2018.......... 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: 18.04.2018....... . 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: ... 18.04.2018.... 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : 18.04.2018...... 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER : 8. DATE OF DESPATCH OF THE ORDER: ......