BIPIN M. GANDHI, MUMBAI V. C.I.T.24, MUMBAI

ITA 2616/MUM/2012

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8341 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 01-03-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 18-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR
• Keywords: Opportunity of being heard
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH , JUDICIAL MEMBER ITA NO. 2616/MUM/2012 : A.Y : 2006 - 07 BIPIN M. GANDHI 401, BIPIN BUILDING, 4 TH FLOOR, LINKING ROAD, SANTACRUZ (W), MUMBAI 400 054 (APPELLANT) PAN : AABPG9859N VS. ITO - 24(1)(1), MUMBAI (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI SUMAN KUMAR DATE OF HEARING : 09/11/2017 DATE OF PRONOUNCEMENT : 29 /11/2017 O R D E R PER G.S. PANNU , AM : THE CAPTIONED APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF I NCOME T AX - 24 , MUMBAI (IN SHORT THE COMMISSIONER) U/S 263 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 15 . 11 .201 1 PERTAINING TO ASSESSMENT YEAR 20 06 - 07 WHEREBY THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE ACT DATED 14 . 03 .20 08 HAS BEEN HELD TO BE ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE WITHIN THE MEANING OF SEC. 263 OF THE ACT. 2 ITA NO. 2616/MUM/2012 BIPIN M. GANDHI 2. AT THE TIME OF HEARING, IT WAS NOTICED THAT INSPITE OF FIXING OF APPEAL ON MORE THAN ONE OCCASION AND SERVICE OF NO TICE BY RPAD, NONE APPEARED ON BEHALF OF THE APPELLANT - ASSESSEE. ON THE OTHER HAND, THE LD. DR APPEARED ON BEHALF OF THE REVENUE. 3. ACCORDINGLY, IN VIEW OF RULE 24 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, THE APPEAL OF THE ASSESSEE IS BEING D ISPOSED OFF EX - PARTE THE APPELLANT - ASSESSEE AFTER HEARING THE RESPONDENT - REVENUE ON MERITS AND PERUSING THE ORDERS OF THE AUTHORITIES BELOW AS UNDER. 4. THE COMMISSIONER HAS FOUND THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER DATED 14.03.2008 AS ER RONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE WITHIN THE MEANING OF SEC. 263 OF THE ACT ON TWO GROUNDS. FIRSTLY, ON ACCOUNT OF QUANTUM OF INCOME ASSESSABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY. A PERUSAL OF THE ORDER OF THE COMMISSIONER REVEALS THAT IT WAS NOTED THAT THE ASSESSEE WAS DERIVING RENTAL INCOMES IN RESPECT OF TWO PROPERT IES ; FIRSTLY, FROM TATA MOTORS LTD. AND SECONDLY , FROM LAXMI AUTOWILD (P) LTD. AS PER THE DETAILS DISCUSSED BY THE COMMISSIONER IN PARA 3, THE RE NTAL INCOME FROM THE TWO PROPERTIES WORK ED OUT TO RS.3,66,000/ - WHEREAS ASSESSEE HAD SHOWN RENTAL INCOME OF RS.2,40,817/ - , WHICH AS PER THE COMMISSIONER WAS WRONGLY ACCEPTED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. THE COMMISSIONER FURTHER REFERR ED TO THE SUBMISSIONS PUT FORTH BY THE ASSESSEE WHEREIN IT WAS EXPLAINED THAT ON ACCOUNT OF TERMINATION OF THE LEAVE & LICENCE AGREEMENT OF TATA MOTORS LTD. IN THE YEAR , THERE WAS A DIFFERENCE IN THE ACTUAL RENT 3 ITA NO. 2616/MUM/2012 BIPIN M. GANDHI RECEIVED VIS - A - VIS THE CONTRACTED RENT FOR T HE FULL YEAR . THE COMMISSIONER HAS RESTORED TH IS MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR PROPER VERIFICATION AFTER ALLOWING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. 5. THE SECOND ISSUE RELATES TO CAPITAL GAINS DECLARED BY THE ASSESSEE ON ACCOUNT OF SALE OF DEVELOPMENT RIGHTS OF RS.20,57,000/ - AND THE CLAIM OF EXEMPTION U/S 54EC OF RS.2,10,000/ - ON ACCOUNT OF INVESTMENT IN THE BONDS OF NABARD. AS PER THE COMMISSIONER, TH ERE WAS NO EVIDENCE OF EXTRA FSI AVAILABLE, WHICH COULD HAVE BEEN SOLD BY THE ASSESSEE AND, THEREFORE, IT HAS BEEN INFERRED THAT THE AMOUNT RECEIVED IS MERELY COMPENSATION FOR ALLOWING THE DEVELOPER TO CONSTRUCT TWO MORE FLOORS IN THE EXISTING BUILDING. A S PER THE COMMISSIONER, IN THE ABSENCE OF THE REQUISITE PROOF, THE AMOUNT OFFERED FOR ASSESSMENT AND ACCEPTED BY THE ASSESSING OFFICER AS CAPITAL GAINS WAS WRONG AND INSTEAD, IT WAS TO BE TREATED AS INCOME FROM OTHER SOURCES AND CONSEQUENTLY THE DEDUCTIO N U/S 54EC OF THE ACT WAS ALSO WRONGLY CLAIMED AND ALLOWED IN THE ASSESSMENT ORDER. ON THIS ASPECT, THE COMMISSIONER CONSIDERED THE SUBMISSIONS PUT FORTH BY THE ASSESSEE, BUT IN THE ABSENCE OF THE REQUISITE PROOF, DIRECTED THE ASSESSING OFFICER TO TREAT T HE IMPUGNED CONSIDERATION TO BE ASSESSABLE UNDER THE HEAD INCOME FROM OTHER SOURCES AND ALSO DENIED THE DEDUCTION U/S 54EC OF THE ACT. 6. HAVING CONSIDERED THE ARGUMENTS PUT FORTH BY THE LD. DR AS ALSO THE DISCUSSION IN THE ORDER OF THE COMMISSIONER, WE FIND THAT THERE IS NO MATERIAL ON RECORD WHICH WOULD ENABLE US TO INTERFERE WITH THE 4 ITA NO. 2616/MUM/2012 BIPIN M. GANDHI FINDINGS OF THE COMMISSIONER, WHICH WE HEREBY AFFIRM. THUS, ASSESSEE FAILS IN HIS APPEAL. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 9 T H NOVEMBER, 2017 SD/ - SD/ - ( PAWAN SINGH ) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER MUMBAI, DATE : 2 9 T H NOVEMBER , 201 7 *SSL* COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, B BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI