RAJNIKANT BALVANTRAI TRIVEDI, MUMBAI V. ITO 32(3)(1), MUMBAI

ITA 3024/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5778 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 10-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR SONI
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO. 3024/MUM/2018 ASSESSMENT YEAR : 2013-14 MR. RAJNIKANT BALVANTRAI TRIVEDI, A-02, SURYA KIRAN BUILDING, C.S. ROAD, NR. ST. MARYS HIGH SCHOOL, AVDHOOT NAGAR, DAHISAR (E) MUMBAI [PAN : AAAPT3876D] VS. INCOME TAX OFFICER-32(3)(1), MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI VIJAY KUMAR SONI, DR DATE OF HEARING : 28-01-2019 DATE OF PRONOUNCEMENT : 30-01-2019 O R D E R THIS APPEAL IS FILED BY THE ASSESSEE AND THE SAME IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCO ME TAX(APPEALS)-45, MUMBAI, DATED 16-03-2018 FOR THE AY . 2013-14. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. THE LEARNED COMMISSIONER OF INCOME TAX APPEAL S DISMISSED THE APPEAL AND UPHELD THE DISALLOWANCE OF RS. 22,91 ,007/- AS EXEMPTION CLAIMED U/S 54 WITHOUT CONSIDERING THE FA CTS AND DOCUMENTS ALONG WITH JUDGMENTS PRONOUNCED BY HIGHER COURTS ITA NO. 3024/MUM/2018 : 2 : SUBMITTED AT THE TIME OF HEARING. CIT PASSED THE OR DER AND DISMISSED THE APPEAL FILED. 2. THE LEARNED COMMISSIONER OF INCOME TAX APPEALS DISMISSED THE APPEAL AND UPHELD THE ADDITION OF RS. 22,91,007/- C ONSIDERING THE SALE CONSIDERING AS RS. 70,00,000/- WHICH WAS A TYP OGRAPHICAL ERROR AND ACTUAL SALE CONSIDERATION IS RS. 60,00,000/- AS PER THE SALE AGREEMENT. CIT PASSED THE ORDER AND DISMISSED THE A PPEAL WITHOUT CONSIDERING THE ACTUAL FACTS OF THE CASE. 3. THE LEARNED COMMISSIONER OF INCOME TAX APPEALS DISMISSED THE APPEAL AND SUSTAINED THE ADDITION OF RS 25,200/- WI THOUT CONSIDERING THE GROUND, WHICH IS BAD IN LAW AND NEE DS TO BE DELETED. 3. THIS APPEAL WAS FIXED FOR HEARING ON 28-01-2019. NOTICE OF HEARING WAS SENT TO THE ASSESSEE BY RPAD ON THE ADDR ESS PROVIDED BY THE ASSESSEE IN FORM NO. 36 I.E. THE APPE AL MEMO. THE SAID NOTICE HAS NOT COME BACK UN-SERVED AND THEREF ORE, SERVICE OF NOTICE IS PRESUMED. NONE APPEARED ON BEH ALF OF THE ASSESSEE AND AT THE TIME OF HEARING, THERE IS NO REQ UEST FOR ADJOURNMENT. THEREFORE, THE APPEAL OF THE ASSESSEE IS DECIDED EX-PARTE QUA THE ASSESSEE. 4. LD. DR FOR THE REVENUE SUPPORTED THE ORDER OF THE L D. CIT(A). 5. I HAVE CONSIDERED THE SUBMISSIONS OF LD. DR FOR TH E REVENUE AND GONE THROUGH THE ORDERS OF THE AUTHORITIES B ELOW AND MATERIAL AVAILABLE ON RECORD. I FIND THAT THE ISSU E IN DISPUTE IN THIS APPEAL WAS DECIDED BY THE LD. CIT(A) A T PARA ITA NO. 3024/MUM/2018 : 3 : NOS. 4.3 AND 4.4 OF HIS ORDER, WHICH ARE REPRODUCE D HEREIN BELOW FOR THE SAKE OF READY REFERENCE: 4.3 COMING BACK TO THE ISSUE OF DEDUCTION UNDER SE CTION 54, THE AO HAS GIVEN CLEAR FINDINGS ON EACH OF THE ISSUE ARGUE D BY THE APPELLANT AS UNDER A) MOU SUBMITTED BY THE ASSESSEE IN SUPPORT OF THE CLA IM IS ON A SIMPLE STAMP PAPER, IT IS NOT NOTARISED AND NOT REG ISTERED. HENCE THE VERACITY OF THE DOCUMENT IS QUESTIONABLE. B) THE CLAUSE 7 OF MOU STIPULATES THAT AFTER RECEIVING FULL AND FINAL PAYMENT THE TRANSFEROR (APPELLANT) SHALL SURR ENDER HIS RIGHT, TITLE AND INTEREST IN FAVOUR OF THE TRANSFER EE. C) THE BUILDER HAS GIVEN SIMILAR LETTERS DATED 15.0 6.2012 AND 04.08.2012, HENCE THE CREDIBILITY OF THE LETTER DAT ED 15.06.2012 IS QUESTIONABLE. 4.4 I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT OR DER AND THE SUBMISSIONS OF THE APPELLANT. AS PER MOU, THE APPEL LANT HAS NOT SURRENDERED HIS RIGHT, TITLE AND INTEREST IN FAVOUR OF THE BUYER, AS IS EVIDENT FROM THE CLAUSE IN THE SAID MOU. THEREFORE, THERE IS NO TRANSFER WITHIN THE MEANING OF SECTION 2(47) OF IT ACT AS THERE IS NO ''EXTINGUISHMENT OF ANY RIGHTS' IN THE PROPERTY. CO MING TO THE DOCUMENTS, THE MOU, THE POSSESSION LETTER AND THE B UILDER'S CONSENT LETTER APPEAR TO BE SELF-SERVING RECITALS FILED BEF ORE THE AUTHORITIES. DEALING WITH SIMILAR DOCUMENTS, HONORABLE SUPREME C OURT IN THE CASE OF DURGA PRASAD MORE [1971] 82 ITR 540 (SC) HELD. 'NOW WE SHALL PROCEED TO EXAMINE THE VALIDITY OF THOSE GROUNDS THAT APPEALED TO THE LEARNED JUDGES. IT IS TRUE THAT THE APPARENT MUST BE CONSIDERED REAL UNTIL IT IS SHOWN THAT THERE ARE REASONS TO BELIEVE THAT THE APPAR ENT IS NOT THE REAL. IN A CASE OF THE PRESENT KIND A PARTY WHO RELIES ON A RECI TAL IN A DEED HAS TO ESTABLISH THE TRUTH OF THOSE RECITALS, OTHERWISE IT WILL BE VERY EASY TO MAKE SELF-SERVING STATEMENTS IN DOCUMENTS EITHER EXECUTED OR TAKEN BY A PARTY AND RELY ON THOSE RECITALS. IF ALL THAT AN ASSESSEE WHO WANTS TO EVADE TAX IS TO HAVE SOME RECITALS MADE IN A DOCUMENT EITHER EXECUTED BY HIM OR EXECUTED IN HIS FAVOUR THEN THE DOOR WILL BE LEFT WIDE OPEN TO EVADE TAX. A LITTLE PROBING WAS SUFFICIENT IN THE PRESENT CASE TO SHOW THAT THE APPARENT WAS NOT THE REA L. THE TAXING AUTHORITIES WERE NOT REQUIRED TO PUT ON BLINKERS WHILE LOOKING A T THE DOCUMENTS PRODUCED BEFORE THEM. THEY WERE ENTITLED TO LOOK INTO THE SUR ROUNDING CIRCUMSTANCES TO FIND OUT THE REALITY OF THE RECITALS MADE IN THOSE D OCUMENTS.' ITA NO. 3024/MUM/2018 : 4 : IN VIEW OF THE ABOVE FACTS AND THE JUDICIAL PRONOUN CEMENT, I AGREE WITH THE AO THAT THE TRANSFER OF RIGHT TITLE AND IN TEREST IN FLAT NO B- 403, RIDDHI SIDDHI COMPLEX HAS TAKEN PLACE ON 16,08 .2012 AND THE NEW FLAT WAS ACQUIRED / PURCHASED ON 06.07.2011 I.E . BEYOND 1 YEAR BEFORE 16.08.2012. THEREFORE THE DEDUCTION U/S 54 I S NOT AVAILABLE AS PER THE ACT TO THE APPELLANT AND THE DISALLOWANC E OF DEDUCTION CLAIMED U/S 54 IS CONFIRMED. GROUND OF APPEAL IS DI SMISSED. 5.1. FROM THE ABOVE PARAS REPRODUCED FROM THE ORDER O F LD. CIT(A), IT IS SEEN THAT AS PER THE AUTHORITIES BELOW, THE SALE OF PROPERTY HAS TAKEN PLACE ON 16-08-2012 AND A NEW FLA T WAS ACQUIRED ON 06-07-2011 I.E. MORE THAN ONE YEAR BEFO RE THE DATE OF SALE I.E. 16-08-2012. AS PER THE LOWER AUTHOR ITIES, BECAUSE OF THIS REASON, THE ASSESSEE IS NOT ELIGIBLE F OR DEDUCTION U/S. 54 OF THE INCOME TAX ACT, 1961 (ACT). I N VIEW OF THIS FACTUAL POSITION, I FIND NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A). GROUNDS RAISED BY ASSESSEE AR E REJECTED. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH DAY OF JANUARY, 2019 SD/- (A.K. GARODIA) /ACCOUNTANT MEMBER /MUMBAI; /DATED : 30 TH JANUARY, 2019 TNMM ITA NO. 3024/MUM/2018 : 5 : / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. ' ! / THE RESPONDENT 3. # $ ( ) / THE CIT(A), MUMBAI 4. # $ / CIT, MUMBAI 5. '()*+ , #-*+#. , / DR, ITAT, MUMBAI 6. )/01 / GUARD FILE # / BY ORDER, ' //TRUE COPY// /# (DY./ASST. REGISTRAR) #-*+#., / ITAT, MUMBAI