Sri.K.Nandakumar, Trivandrum V. ACIT, Trivandrum

ITA 304/COCH/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68990 (ITAT-COCHIN)
• Duration Of Justice: 4 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-09-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 17-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R SRIDHAR
• Section: 54; 263

Judgement Text

1 ITA NO.304/COCH/2013 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO.304/COCH/2013 (ASSESSMENT YEAR 2006-07) SHRI K NANDAKUMAR VS THE A.C.I.T., CIR.1(1) TC 2/2526(3), T K V NAGAR TRIVANDRUM GOLF LINKS ROAD TRIVANDRUM 695 003 PAN : ACKPN7957N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R SRIDHAR RESPONDENT BY : SHRI M ANIL KUMAR, C.I.T SMT. S VIJAYAPRABHA DATE OF HEARING : 24-09-2013 DATE OF PRONOUNCEMENT : 27-09-2013 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE CIT(A), TRIVANDRUM DATED 08-03-2013 FOR THE ASSESSM ENT YEAR 2006-07. 2. SHRI R SRIDHAR, THE LD.REPRESENTATIVE FOR THE AS SESSEE SUBMITTED THAT CONSEQUENT TO THE ORDER PASSED BY THE ADMINISTRATIV E COMMISSIONER U/S 263 OF THE ACT, THE ASSESSING OFFICER HAS PASSED AS SESSMENT ORDER. THE ASSESSEE HAD FILED APPEAL BEFORE THIS TRIBUNAL CHAL LENGING THE ORDER OF THE 2 ITA NO.304/COCH/2013 ADMINISTRATIVE COMMISSIONER PASSED U/S 263 IN ITA N O.485/COCH/2011 AND THIS TRIBUNAL, BY AN ORDER DATED 28 TH FEBRUARY, 2013 MODIFIED THE ORDER OF THE ADMINISTRATIVE COMMISSIONER AND DIRECTED THE ASSESSING OFFICER TO EXAMINE WHETHER THE TAXPAYER IS ELIGIBLE FOR EXEMPT ION U/S 54 OF THE ACT WHEN THE CAPITAL GAIN AMOUNT WAS NOT DEPOSITED IN T HE SPECIFIED ACCOUNT AS PROVIDED IN SECTION 54(2) OF THE ACT ESPECIALLY WHEN THE HOUSE PROPERTY WAS PURCHASED WITHIN THE TIME LIMIT PROVIDED U/S 54 OF THE ACT AND THEREAFTER DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY TO THE TAXPAYER WITHOUT BEING INFLUENCE D BY ANY OF THE OBSERVATIONS MADE BY THE ADMINISTRATIVE COMMISSIONE R IN ORDER U/S 263 OF THE ACT. THE ASSESSING OFFICER, HOWEVER, PASSED TH E IMPUGNED ASSESSMENT ORDER BEFORE THE ORDER OF THIS TRIBUNAL. THEREFORE, THE APPELLATE COMMISSIONER OUGHT TO HAVE DIRECTED THE A SSESSING OFFICER TO COMPLY WITH THE DIRECTIONS OF THE TRIBUNAL INSTEAD OF CONFIRMING THE ORDER PASSED BY THE ASSESSING OFFICER. 3. WE HEARD SHRI M ANIL KUMAR, THE LD.DR ALSO. 4. ADMITTEDLY, THIS TRIBUNAL, BY AN ORDER DATED 28 TH FEBRUARY, 2013 HAS MODIFIED THE ORDER OF THE ADMINISTRATIVE COMMISSION ER AND DIRECTED THE ASSESSING OFFICER TO EXAMINE THE ASSESSABILITY OF T HE CAPITAL GAIN , ESPECIALLY WHEN THE HOUSE PROPERTY WAS PURCHASED WI THIN THE TIME LIMIT 3 ITA NO.304/COCH/2013 PROVIDED U/S 54 OF THE ACT. THIS ORDER OF THIS TRI BUNAL WAS VERY MUCH AVAILABLE WHEN THE APPELLATE COMMISSIONER PASSED TH E IMPUGNED ORDER CONFIRMING THE ORDER OF THE ASSESSING OFFICER. THI S TRIBUNAL IS OF THE CONSIDERED OPINION THAT WHEN THE TRIBUNAL AFTER MOD IFYING THE ORDER OF THE ADMINISTRATIVE COMMISSIONER DIRECTED THE ASSESSING OFFICER TO EXAMINE THE ISSUE AFTER GIVING OPPORTUNITY TO THE ASSESSEE, THE DIRECTION HAS TO BE IMPLEMENTED BY ALL THE AUTHORITIES BELOW. WITHOUT EXAMINING THE MATTER AS DIRECTED BY THE TRIBUNAL, THE CIT(A) OUGHT NOT TO H AVE CONFIRMED THE ORDER OF THE ASSESSING OFFICER. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ORDER OF THIS TRIBUNAL DATED 28 TH FEBRUARY, 2013 MAY NOT HAVE BEEN BROUGHT TO THE NOTICE OF THE CIT(A). THEREFORE, TH E ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO EXAMINE THE ISSUE AS DIRECTED BY THIS TRIBUNAL IN ORDER DAT ED 28 TH FEBRUARY, 2013 AND THEREAFTER DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 TH SEPTEMBER, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 27 TH SEPTEMBER, 2013 PK/- 4 ITA NO.304/COCH/2013 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH