V.Karthik, CHENNAI V. ITO, CHENNAI

ITA 262/CHNY/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7392 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 13-03-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 10-02-2016
• Court: TRIBUNAL
• Department Lawyers: AWIJIT RAKSHITJCIT
• Assessee Lawyers: R KUMAR
• Keywords: Cost of acquisition; Revised return

Judgement Text

, A/ SMC , IN THE INCOME TAX APPELLATE TRIBUNAL A/SMC BENCH, CHENNAI . , BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ./ I.T.A.NO.262 /MDS./2016 ( / ASSESSMENT YEAR :2012-13) MR.V.KARTHIK , 16/70,FLAT NO.1-B, KOTHARI KEERTHI ANNA STREET, THIRUVANMIYUR, CHENNAI 600 041. VS. THE ITO, INTERNATIONAL TAXATION 1(2), CHENNAI 34. PAN BCGPK 4399 R ( / APPELLANT ) ( / RESPONDENT ) ! ' # / APPELLANT BY : MR.R.KUMAR, ADVOCATE $% ! ' # / RESPONDENT BY : MR.AWIJIT RAKSHIT,JCIT, DR & ' ' ( ) / DATE OF HEARING : 13.03.2017 *+ ' ( ) /DATE OF PRONOUNCEMENT : 22.03.2017 / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE ASSESSEE, AGGRIEVED B Y THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A)-16, CHENN AI DATED 09.11.2015 PERTAINING TO ASSESSMENT YEAR 2012-13 . ITA NO. 2078/MDS/2016 2 2. THE ASSESSEE HAS RAISED VARIOUS GROUNDS IN HIS APPEAL. HOWEVER, THE LD.A.R PRESSED ONLY ONE GROUND WITH RE FERENCE TO GRANTING OF DEDUCTION U/S.54 OF THE ACT AND ALL OTH ER GROUNDS ARE DISMISSED AS NOT PRESSED. 3. THE FACTS OF THE ISSUE ARE THAT IN THIS CASE AS SESSEE SOLD TWO PROPERTIES DURING THE FINANCIAL YEAR RELEVANT TO AS SESSMENT YEAR, CLAIMED INDEXED COST OF ACQUISITION, INDEXED COST O F IMPROVEMENT AND EXPENSES ON TRANSFER AGAINST THE SALE OF PROPER TIES AND DISCLOSED LONG TERM CAPITAL GAINS. THE ASSESSEE CLAIMED EXEMP TION U/S.54EC OF THE ACT FOR THE LONG TERM CAPITAL GAINS STATING THAT THE ASSESSEE HAD INVESTED IN BONDS OF NHAI/REC WITHIN A PERIOD O F 6 MONTHS AFTER THE DATE OF TRANSFER/SALE. THE ASSESSEE HAD NOT CLA IMED DEDUCTION U/S.54 OF THE ACT IN ITS RETURN OF INCOME. HOWEVER, AT THE TIME OF ASSESSMENT , ASSESSEE MADE A PLEA TO GRANT DEDUCTI ON U/S.54 OF THE ACT IN RESPECT OF INVESTMENT MADE IN RESIDENTIAL PR OPERTY OUTSIDE INDIA FOR SALE OF PROPERTY AT NO.189,SHOLINGANALUR. THE ASSESSING AND FIRST APPELLATE AUTHORITY DISMISSED THE SAME ON THE GROUND THAT THIS IS A FRESH CLAIM AND CANNOT BE ALLOWED TO THE ASS ESSEE WITHOUT ITA NO. 2078/MDS/2016 3 REVISED RETURN BY PLACING RELIANCE IN THE JUDGMENT OF SUPREME COURT IN THE CASE OF M/S.GOETZE (INDIA) LTD. VS. CIT (200 6) 204 CTR 182 (SC). AS PER THIS JUDGEMENT, THE LD. ASSESSING OFF ICER CANNOT ENTERTAIN THEIR CLAIM OF ASSESSEE AT THE TIME OF AS SESSMENT WITHOUT REVISED RETURN OF INCOME. NOW, THE ASSESSEE IS IN APPEAL BEFORE US. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THOUGH ADMITTEDLY THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S.54 OF THE ACT IN RESPECT OF PROPERTY ACQUIRED B Y THE ASSESSEE OUTSIDE INDIA IN CASE THE ASSESSEE FILED HIS RETURN OF INCOME WITHIN THE TIME LIMIT PRESCRIBED IN SEC.54 OF THE ACT. THE LOWER AUTHORITIES REJECTED THE CLAIM OF ASSESSEE ON THE REASON THAT T HE ASSESSEE HAS NOT FILED REVISED RETURN AND ONLY FRESH CLAIM DURIN G THE COURSE OF ASSESSMENT PROCEEDINGS. THE BENEFIT OF SEC.54 OF TH E ACT WAS SPECIFICALLY DENIED FOR ANY RESIDENTIAL PROPERTY A CQUIRED OUTSIDE INDIA BY THE FINANCE (NO.2) ACT, 2015 WITH EFFECT FROM 01 .04.2015, BEFORE THAT NO SUCH RESTRICTION EXISTED IN THE ACT. THE AS SESSMENT YEAR INVOLVED IN THIS CASE IS 2012-13 AND IN PRINCIPLE, THE ASSESSEE IS ITA NO. 2078/MDS/2016 4 ENTITLED FOR DEDUCTION U/S.54 OF THE ACT, BEING SO, WHEN THE ASSESSEE HAS GIVEN A REASONABLE EXPLANATION AND SUPPORTED IT WITH PLEA OF BONA FIDE ERROR, THE SAME SHOULD BE ACCEPTED AND AN Y DECISION REFERRED OTHERWISE WOULD HAVE BENEFIT OF DENYING CO RRECT TAX LIABILITY FOR WHICH THE TRIBUNAL CANNOT BE A PARTY. THE TRIBU NAL HAVE POWER TO CONSIDER CLAIM OF ASSESSEE TO WHICH IT WAS OTHERWIS E ENTITLED, EVEN THOUGH NO CLAIM WAS MADE BY THE IN RETURN OF INCOM E. THE ASSESSEE IS ENTITLED TO A PARTICULAR CLAIM, WHICH IT MISSED IN THE RETURN, MAY CLAIM DURING THE APPELLATE PROCEEDINGS. HOWEVER, TH E ASSESSEE SHOULD ENSURE THAT ALL NECESSARY EVIDENCE SHOULD BE SUBMITTED DURING THE ASSESSMENT PROCEEDINGS AND IS AVAILABLE ON RECORD BEFORE US. CONSIDERING THESE FACTS, IN PRINCIPLE, WE ARE I NCLINED TO ACCEPT THE CLAIM OF THE ASSESSEE. 3.1 THOUGH THE LD.A.R PLACED STRONG RELIANCE IN TH E JUDGEMNE TOF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. SMT. S. VIJAYALAKSHMI IN [2000] 242 ITR 46 (MAD) STATING TH AT THE TRIBUNAL ITSELF SHALL DECIDE THE ISSUE IN HIS FAVOUR, IN OU R OPINION, THE AO ITA NO. 2078/MDS/2016 5 REQUIRES TO QUANTIFY THE EXACT AMOUNT OF DEDUCTION U/S.54 OF THE ACT, AS SUCH WE CANNOT PRECONCLUDE THE ISSUE AT OUR LEVE L. ACCORDINGLY, WE REMIT THE ENTIRE ISSUE IN DISPUTE TO THE FILE OF AO FOR FRESH CONSIDERATION. 4. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 22 ND MARCH, 2017 AT CHENNAI. SD/- ( ) ( CHANDRA POOJARI ) /ACCOUNTANT MEMBER CHENNAI, DATED THE 22 ND MARCH, 2017 . K S SUNDARAM. , ' $(-. /.( / COPY TO: 1 . ! / APPELLANT 3. & 0( () / CIT(A) 5. .3 4 $(5 / DR 2. $% ! / RESPONDENT 4. & 0( / CIT 6. 4 6 7 ' / GF