Vimal Kumar Kumaraswamy, CHENNAI V. ITO Ward 1, Kancheepuram

ITA 2858/CHNY/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3464 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 1 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 08-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHANMUGA PRIYA
• Assessee Lawyers: D ANANDD BABUNATHCA
• Keywords: Revised return; Capital Gains

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B BENCH, CHENNAI . . . , , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NO.2858/CHNY/2018 [ [ /ASSESSMENT YEAR: 2009-10 SHRI VIMAL KUMAR KUMARASWAMY, F1, SRI KUMARA KOTTAM, 8, MANNAR, SECOND STREET, VADAPALANI, CHENNAI 600 026. VS. THE INCOME TAX OFFICER, WARD 1, KANCHEEPURAM. PAN: ACKPV 1865A ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI D. ANANDD BABUNATH,CA /RESPONDENT BY : MS. SHANMUGA PRIYA, JCIT /DATE OF HEARING : 25.09.2019 /DATE OF PRONOUNCEMENT : 28.11.2019 / O R D E R PER SHRI S. JAYARAMAN, ACCOUNTANT MEMBER : THE ASSESSEE FILED THIS APPEAL AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-7, CHENNAI IN ITA NO.14/CIT(A)-7/2013-14 DATED 24.08.2018 FOR THE ASSESSMENT YEAR 2009-10. ITA NO.2858/CHNY/2018 - 2 - 2. SHRI K. VIMAL KUMAR, THE ASSESSEE, AN INDIVIDUAL DERIVING INCOME FROM HOUSE PROPERTY AND LONG TERM CAPITAL GAINS. THE ASSESSEE SOLD AN APARTMENT WITH A SUPER BUILT-UP AREA OF 1270 SQ.FT., IN T.NAGAR ON 21.01.2009, ARRIVED THE CAPITAL GAINS AT RS.20,25,308/-. IN THE RETURN FILED FOR ASSESSMENT YEAR 2009-10 ON 16.07.2009, THE ASSESSEE ADMITTED AN INCOME OF RS.21,96,010/- WHICH INCLUDED CAPITAL GAINS OF RS.20,25,308/- AND PAID THE TAXES OF RS.4,61,280/- WHICH INCLUDED THE LONG TERM CAPITAL GAINS AT THE RATE OF 20% OF RS.4,05,062/-. THE ASSESSMENT U/S.143(3) WAS COMPLETED ON 20.12.2011 ACCEPTING THE RETURNED INCOME. THEREAFTER, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) PLEADING, INTERALIA, THAT THE ASSESSING OFFICER ERRED IN NOT ALLOWING THE CLAIM OF RS.20,25,308/-, THE INVESTMENT MADE IN NEW PROPERTY IN TERMS OF PROVISIONS OF SECTION 54. THE LD.CIT(A) RECORDED A FINDING THAT FROM THE RECORDS IT IS SEEN THAT THE ASSESSEE HAS FILED A REVISED RETURN ON 01.02.2012 FOR THE ASSESSMENT YEAR 2009-10 CLAIMING DEDUCTION U/S.54 OF RS.17,85,096/- AND CONSEQUENTLY CLAIMED A REFUND OF RS.4,09,670/-. THE CIT(A) FOUND THAT THE ASSESSEE HAS PURCHASED AN APARTMENT HAVING A SUPER BUILT-UP AREA OF 870 SQ.FT., AT VADAPALANI IN CHENNAI ON 09.04.2010. THE ITA NO.2858/CHNY/2018 - 3 - PROCEEDINGS FOR THE ASSESSMENT YEAR 2009-10 WAS COMPLETED ON 20.12.2011 U/S.143(3) AND TAXES WERE ALSO PAID. AFTER THE COMPLETION OF ASSESSMENT, THE ASSESSEE WANTS TO CLAIM DEDUCTION U/S.54 WHICH IS NOT PERMISSIBLE AND HENCE HE DISMISSED THE APPEAL. AGGRIEVED AGAINST THAT ORDER, THE ASSESSEE FILED THIS APPEAL. 3. THE LD.AR SUBMITTED THAT THE ASSESSEE BEING UNAWARE OF TAX PROVISIONS PAID THE LONG TERM CAPITAL GAIN AND FILED HIS RETURN ON 16.07.2009 WITHOUT DEPOSITING THE SALE RECEIPT IN ANY CAPITAL GAINS SCHEME. ALMOST AT THE END OF SCRUTINY OF THE ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 2009-10, THE ASSESSEE BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER THAT HE HAS PURCHASED ANOTHER PROPERTY AND HE IS ENTITLED TO CLAIM DEDUCTION U/S.54. HOWEVER, THE ASSESSING OFFICER WITHOUT CONSIDERING THE ASSESSEES CLAIM PASSED THE IMPUGNED ASSESSMENT ORDER. AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A). THE LD.CIT(A) ERRED IN NOT CONSIDERING THE ASSESSEES PLEA AND DISMISSED THE APPEAL. PER CONTRA, THE LD.DR SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. ITA NO.2858/CHNY/2018 - 4 - 4. WE HEARD THE RIVAL SUBMISSIONS AND GONE THROUGH THE RELEVANT MATERIAL. IT IS CLEAR FROM THE ABOVE, THAT THE ASSESSEE SOLD THE PROPERTY ON 21.01.2009, CONSCIOUSLY DETERMINED THE CAPITAL GAINS AT RS.20,25,308/- AND THE CORRESPONDING TAX AT RS.4,05,062/-. THEREAFTER, HE ADMITTED THE ENTIRE INCOME INCLUDING THE CAPITAL GAIN AND PAID THE TAXES AT RS.4,61,280/-, WHICH INCLUDED THE IMPUGNED CAPITAL GAIN AND FILED HIS RETURN OF INCOME ALSO ON 16.07.2009. THUS, IT IS CLEAR THAT THE ASSESSEE HAD NO INTENTION TO AVAIL ANY DEDUCTION U/S.54, AS HE HAS NEITHER DEPOSITED THE SALE CONSIDERATION IN THE CAPITAL GAINS SCHEME NOR SPECIFIED HIS INTENTION TO CLAIM THE DEDUCTION U/S.54 IN THE RETURN. THE RETURN FILED WAS SUBJECTED TO THE ASSESSMENT AND THE ASSESSING OFFICER ACCEPTED THE RETURNED INCOME U/S.143(3) ON 20.12.2011. AFTER COMPLETION OF THE ASSESSMENT, THE ASSESSEE SOUGHT DEDUCTION U/S.54, BEFORE THE CIT(A), SUBMITTING THAT HE HAS PURCHASED A PROPERTY ON 09.04.2010 AND HENCE HIS CLAIM U/S.54 BE ALLOWED. THE LD.CIT(A) VERY CORRECTLY DECIDED THAT THE PROCEEDINGS FOR THE ASSESSMENT YEAR 2009-10 WAS COMPLETED AND THE TAXES ALREADY PAID BY THE ASSESSEE WERE ALSO ACCEPTED. AFTER THE COMPLETION OF THE ASSESSMENT, THE ASSESSEES CLAIM OF DEDUCTION U/S.54 IS NOT ITA NO.2858/CHNY/2018 - 5 - PERMISSIBLE. ON THE ABOVE FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY REASON TO INTERFERE WITH ORDER OF THE LD.CIT(A) AND HENCE THE ASSESSEES APPEAL IS DISMISSED. 5. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 28 TH NOVEMBER, 2019 IN CHENNAI. SD/- SD/- /CHENNAI, /DATED 28 TH NOVEMBER, 2019 RSR /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. ( ) /CIT(A) 4. /CIT 5. /DR 6. /GF ( . . . ) (N.R.S. GANESAN) / JUDICIAL MEMBER ( ) (S. JAYARAMAN) /ACCOUNTANT MEMBER