Shri Rajendra K. Amin, Vadodara V. The Dy.CIT, Intl. Taxn, Vadodara

ITA 2880/AHD/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9880 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 25-10-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 14-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Residential status; Reason to believe
• Section: 143(3); 54F; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE, SHRI S. S. GODARA, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ITA NO. 2880/AHD/2015 (ASSESSMENT YEAR: 2011-12) RAJENDRA K. AMIN 11, ANAND SAGAR APARTMENT, ANAND SAGAR SOCIETY, JETALPUR ROAD, VADODARA 390007 APPELLANT VS. DEPUTY COMMISSIONER OF INCOME TAX, INTERNATIONAL TAX, VADODARA RESPONDEN T PAN: ASRPA8596L / BY ASSESSEE : SHRI TUSHAR HEMANI, A.R. / BY REVENUE : SHRI PRASOON KABRA, SR. D.R. /DATE OF HEARING : 25.10.2016 /DATE OF PRONOUNCEMENT : 30.11.2016 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2011-12 ARISES AGAINST THE CIT(A)-13, AHMEDABADS ORDER DATED 24.08.2015, IN A PPEAL NO. CIT(A)- XIII/AHD/110/2014-15, IN PROCEEDINGS UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. THE INSTANT APPEAL RAISES THE FOLLOWING SUBSTANT IVE GROUNDS: 1.00 ON THE FACTS AND CIRCUMSTANCES OF YOUR APPELL ANT'S CASE AS WELL AS IN LAW, THE LD. CIT(A) ERRED IN DISMISSING THE GROUND OF YO UR APPELLANT THAT THE ITA NO.2880/AHD/2015 (RAJENDRA K. AMIN VS. DCIT) A.Y. 2011-12 - 2 - ORDER PASSED U/S 143(3) R.W.S. 147 OF THE ACT BY TH E ID. AO IS BAD IN LAW, ON WRONG PLEA THAT YOUR APPELLANT HAS NOT FILED THE RE TURN OF INCOME WITH THE ID. AO BUT WITH ITO, WARD 5(1), BARODA AND HENCE RE OPENING OF ASSESSMENT IS PRIMA FACIE JUSTIFIED. 1.01 YOUR APPELLANT SUBMITS THAT IT WAS FULLY EXPLA INED TO LD. AO WITH DOCUMENTARY EVIDENCE WHILE OBJECTING TO REASONS REC ORDED THAT YOUR APPELLANT HAD FILED THE RETURN OF INCOME AND ALSO O FFERED THE INCOME ON SALE OF PROPERTY IN QUESTION IN THE SAID RETURN OF INCOME FILED. YOUR APPELLANT FURTHER SUBMITS THAT THE ID. AO VIDE PARA . 4 OF HIS ORDER ACCEPTED THIS FACT BY MENTIONING THAT PART OF THE REASONS RE CORDED ARE INCORRECT. HOWEVER, LD. CIT(A) OVERLOOKED THE SUBMISSIONS OF Y OUR APPELLANT WHILE DISMISSING THIS GROUND OF YOUR APPELLANT. 2.00 ON THE FACTS AND IN THE CIRCUMSTANCES OF YOUR APPELLANT'S CASE AND IN LAW, THE LD. CIT(A) ERRED IN DISALLOWING CLAIM OF EXEMPT ION U/S 54F OF THE ACT ON ERRONEOUS PLEA THAT YOUR APPELLANT HAS NOT PURCH ASED RESIDENTIAL HOUSE WITHIN 2 YEARS FROM THE DATE OF TRANSACTION. 2.01 YOUR APPELLANT SUBMITS THAT LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT YOUR APPELLANT HAD GIVEN MORE THAN 80% OF TOTAL EST IMATED DEVELOPMENT COST OF RESIDENTIAL HOUSE WITHIN TWO YEARS FROM THE DATE OF SALE OF LAND. HOWEVER, DUE TO VARIOUS UNAVOIDABLE CIRCUMSTANCES, THE DEVELOPMENT OF THE RESIDENTIAL FLAT WAS NOT COMPLETED BY THE CONTR ACTOR WITHIN THE STIPULATED TIME. YOUR APPELLANT FURTHER SUBMIT THAT THE LD. CIT(A) FAILED TO APPRECIATE THE LAW LAID DOWN IN FOLLOWING CASES THA T EXEMPTION U/S 54F OF THE ACT CANNOT BE DENIED EVEN THOUGH TRANSACTIONS A RE NOT COMPLETE IN ALL RESPECT AS REQUIRED UNDER LAW : CIT(A) V. SAMBANDAM UDAYKUMAR [2012] 206 TAXMAN 150 (KAR.) V.A. THARABAI V. CIT[2012] 50SOT537(CHENNAI) USHA VAID V. ITO[2012] 25 TAXMANN.COM 188 (ASR.) RAM PRAKASH MIYAN BAZAZ V. DCIT [2014] 45 TAXMANN.C OM 550 (JAIPUR - TRIB.) 3. WE FIRST COME TO THE FORMER ISSUE OF VALIDITY OF THE REOPENING IN QUESTION. PAGE 11 OF THE PAPER BOOK CONTAINS ASSES SING OFFICERS REOPENING REASONS RECORDED ON 18.03.2014 AS UNDER: REASON RECORDED FOR RE-OPENING THE ASSESSMENT U/S 147 OF THE I.T.ACT,1961 NAME & ADDRESS OF THE ASSESSEE : AMIN RAJ ENDRABHAI KHUNDBHAI 11, ANAND SAGAR APARTMENT, ANAND SAGAR SOCIETY, 11, ANAND SAGAR APARTMENT, ANAND SAGAR SOCIETY, JETALPUR ROAD, JETALPUR ROAD, VADODARA GUJARAT 390007 ITA NO.2880/AHD/2015 (RAJENDRA K. AMIN VS. DCIT) A.Y. 2011-12 - 3 - ASST. YEAR : 2011-12 P.A.N. : ASRPA8596L IN THIS CASE, AS PER AIR INFORMATION, THE ASSESSEE HAS SOLD IMMOVABLE PROPERTY WORTH RS.13,93,800/- DURING THE F.Y. 2010 -11 RELEVANT TO A.Y. 2011-12. THE ASSESSEE HAS NOT FILED HIS RETURN OF INCOME FOR A.Y.2011-12. CONSIDERING THE FACTS OF THE CASE, I HAVE REASON TO BELIEVE THAT ASSESSEE'S INCOME W.R.T. LTG/STCG HAS ESCAPED ASSESSMENT FOR A .Y. 2011-12 WITHIN THE MEANING OF SECTION 147 OF THE ACT. THEREFORE, THIS IS A FIT CASE TO INITIATE PROCEEDINGS U/S 147 OF THE INCOME TAX ACT, 1961. IS SUE NOTICE U/S 148 OF THE ACT. 4. WE HAVE HEARD BOTH THE SIDES. CASE FILE PERUSED . IT IS NOT IS DISPUTE THAT THE ASSESSING OFFICERS MAIN GROUND AS EXTRACT ED HEREINABOVE IS THAT THE ASSESSEE HAD NOT FILED HIS RETURN FOR THE IMPUGNED ASSESSMENT YEAR. THE SAME TURNS TO BE CONTRARY TO PAGE (S) 16 TO 18 OF THE PA PER BOOK WHEREIN THE ASSESSEES RETURN IN QUESTION IS STATED TO HAVE BEE N FILED ON 19.12.2011 DECLARING TOTAL INCOME AS RS.27,02,520/- INCLUDING LONG TERM CAPITAL GAINS OF RS.35,35,765/- ON SALE OF THE IMPUGNED IMMOVABLE PR OPERTY IN QUESTION. THE ASSESSING OFFICERS ORDER DATED 09.02.2015 DISPOSIN G OF ASSESSEES OBJECTION TO REOPENING READS THAT THE SAID RETURN HAD NOT BEE N FILED U/S.139(1) OF THE ACT. THE CIT(A) ON THE OTHER HAND IS OF THE VIEW T HAT THE SAID RETURN WAS NOT FILED WITH THE ASSESSING OFFICER ISSUING SECTION 14 8 NOTICE. THE FACT HOWEVER REMAINS THAT THE FILING OF ASSESSEES RETUR N IN QUESTION (SUPRA) IS NOT OTHERWISE IN DISPUTE. WE PUT UP A SPECIFIC QUERY T O LD. DEPARTMENTAL REPRESENTATIVE TO PROVE THAT ASSESSEES RESIDENTIAL STATUS OR HIS WARD IS DIFFERENT IN THE ABOVE STATED RETURN OR IN SECTION 148 NOTICE OR IN RE- ASSESSMENT. HE COULD NOT POINT OUT SUCH DIFFERENCE . IT HAS FURTHER COME ON RECORD THAT ASSESSEE HAD ALSO RECEIVED ACKNOWLEDGEM ENT OF HIS RETURN FROM DEPARTMENTS END FORMING PART OF THE PAPER BOOK. W E QUOTE HONBLE JURISDICTIONAL HIGH COURT IN SPECIAL CIVIL APPLICAT ION NO.15475/2015 MANISH KUMAR PRAVINBHAI KIRI VS. ACIT DECIDED ON 11.01.201 6 HOLDING THAT THE ONLY REASON OF NON FILING OF RETURN FORMING BASIS OF THE IMPUGNED REOPENING IN ITA NO.2880/AHD/2015 (RAJENDRA K. AMIN VS. DCIT) A.Y. 2011-12 - 4 - SUCH CIRCUMSTANCES STANDS BELIED. WE THUS ACCEPT A SSESSEES CHALLENGE TO VALIDITY OF THE REOPENING AND CONCLUDE THAT THE ASS ESSING OFFICERS ABOVE STATED REASONING GOES CONTRARY TO THE RECORD. THE SAME IS ACCORDINGLY QUASHED RENDERING ASSESSEES OTHER GROUND ON MERITS AS INFRUCTUOUS. 5. THIS ASSESSEES APPEAL IS ALLOWED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 30 TH DAY OF NOVEMBER, 2016.] SD/- SD/- (AMARJIT SINGH) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBE R AHMEDABAD: DATED 30/11/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )* + ,--. . /0 / DR, ITAT, AHMEDABAD 1 + 23 4 5 / GUARD FILE. BY ORDER / . // . /0