ITO, CHENNAI V. Shema Renny Abraham, CHENNAI

ITA 3322/CHNY/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4267 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-06-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 18-05-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 08-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N GOPI KRISHNA
• Assessee Lawyers: S SRIDHAR
• Section: 54F

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI ... , , # BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ I.T.A. NO. 3322/MDS/2016 / ASSESSMENT YEAR : 2010-11 THE INCOME TAX OFFICER, NON-CORPORATE CIRCLE -9(3), CHENNAI 600 34. VS. MRS. SHEMA RENNY ABRAHAM, JANAPRIYA CREST, NO. 113, PANTHEON ROAD, EGMORE, CHENNAI 600 008. [PAN: AKZPS 1467N] ( / APPELLANT) ( / RESPONDENT) % & / APPELLANT BY : SHRI N. GOPI KRISHNA, JCIT )*% & / RESPONDENT BY : SHRI S. SRIDHAR, ADVOCATE & /DATE OF HEARING : 18.05.2017 & /DATE OF PRONOUNCEMENT : 16.06.2017 /O R D E R PER S. JAYARAMAN, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-10, CHENNAI IN ITA NO. 316/2013- 14/CIT(A)-10 DATED 23.09.2016. :-2-: I.T.A. N0. 3322/MDS/2016 2. MRS. SHEMA RENNY ABRAHAM, THE ASSESSEE, AN INDIV IDUAL, IS DERIVING INCOME FROM; SHARE FROM M/S. ENTECH INTERNATIONAL, HOUSE PROPERTY AND FROM OTHER SOURCES. WHILE COMPLETING THE ASSESSMENT FOR ASSESSMENT YEAR 2010- 11, THE ASSESSING OFFICER, AMONG OTHER ISSUES, REFU SED TO ALLOW THE DEDUCTION CLAIMED U/S. 54F FOR THE REASON THAT ON THE DATE OF TRANSFER OF ORIGINAL ASSET, THE ASSESSEE OWNS MORE THAN ONE RESIDENTIAL HOUSE P ROPERTY, OTHER THAN THE NEW HOUSE. AGGRIEVED, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A)-10, CHENNAI. THE CIT(A) CALLED FOR REMAND REPORTS FROM THE ASSESSING OFFICER AND RELYING ON THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS V R KARPAGAM (373 ITR 127) ALLOWED THE ASSESSEES C LAIM U/S. 54F. AGGRIEVED, THE REVENUE FILED THIS APPEAL WITH THE F OLLOWING GROUNDS: 2. THE LD. CIT(A) ERRED IN ALLOWING EXEMPTION U/S. 54F IN RESPECT INVESTMENT IN ALL THE FOUR FLATS WITHOUT AP PRECIATING THE FACT THAT ON THE DATE OF TRANSFER THE ASSESSEE OWNED MOR E THAN ONE RESIDENTIAL PROPERTY. 3. THE CIT(A) ERRED IN FOLLOWING THE DECISION OF TH E HONBLE HIGH COURT OF MADRAS IN THE CASE OF SMT. V R KARPAG AM (373 ITR 127) (2015) (MAD), WHERE THE FACTS AND CIRCUMSTANCE S ARE CLEARLY DISTINGUISHABLE FROM THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE. 4. THE CIT(A) ERRED IN NOT CONSIDERING THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT (CE NTRAL) VS M J SIWANI [2014] 46 TAXMANN.COM 170. IN THIS CASE, TH E HONBLE :-3-: I.T.A. N0. 3322/MDS/2016 SUPREME COURT DISMISSED THE SLP FILED BY THE ASSESS EE [2015] 53 TAXMANN.COM 318 (SC). 3. THE DR ARGUED THE CASE ON THE LINES OF THE GROUN DS OF APPEAL. PER CONTRA, THE AR SUBMITTED THAT THE AO HAS DENIED THE BENEFIT OF SECTION 54F FOR THE REASON THAT THE ASSESSEE IS OWNING MORE THAN ON E RESIDENTIAL HOUSE AS ON DATE OF SALE OF PROPERTY, WHICH WAS SUBJECT TO CAPI TAL GAINS TAX. DURING THE REMAND PROCEEDINGS BEFORE THE AO, THE ASSESSEE FILE D AN AFFIDAVIT, A COPY OF WHICH WAS FURNISHED BY THE CIT(A) ALSO DURING THE A PPEAL PROCEEDINGS. IN THE AFFIDAVIT, THE ASSESSEE EXPLAINED THE ACTUAL POSITI ON AS REGARDS TO HER PLACE OF RESIDENCE AND ON THE NATURE OF PROPERTY OWNED BY HE R. HOWEVER, THE AO HAS NOT EXPRESSED ANY OPINION REGARDING THE ALLOWABILIT Y OF DEDUCTION U/S. 54F IN THE REMAND REPORT. IN SPITE OF THE PLEA TAKEN BY T HE ASSESSEE BEFORE THE CIT(A) THAT SHE OWNS ONLY ONE RESIDENTIAL PROPERTY AND ALL OTHERS ARE COMMERCIAL IN NATURE AND HENCE SHE IS ENTITLED FOR CLAIM OF EXEMPTION U/S. 54F, UNFORTUNATELY, THE CIT(A) HAS NOT ADDRESSED TH IS ISSUE. HENCE, THE AR PLEADED TO ALLOW THIS APPEAL 4. WE HEARD THE RIVAL CONTENTIONS AND GONE THROUGH THE ORDER OF THE CIT(A). IT IS CLEAR FROM IT THAT THE CIT(A) HAS NO T ADDRESSED THIS ISSUE. SINCE, THE ASSESSEE CLAIMS THAT SHE OWNS ONLY ONE RESIDENT IAL PROPERTY AND ALL OTHER PROPERTIES ARE COMMERCIAL IN NATURE, WHICH HAS TO B E VERIFIED BY THE ASSESSING :-4-: I.T.A. N0. 3322/MDS/2016 OFFICER, THIS ISSUE IS REMITTED BACK TO THE AO FOR RE-EXAMINATION AND FOR PASSING A SPEAKING ORDER AFTER AFFORDING DUE OPPOR TUNITY TO THE ASSESSEE. 5. IN THE RESULT, THE REVENUES APPEAL IS TREATED A S DISMISSED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON FRIDAY, THE 16 TH DAY OF JUNE, 2017 AT CHENNAI. SD/- ( . . . ) (N.R.S. GANESAN) ! ' /JUDICIAL MEMBER SD/- ( ) (S. JAYARAMAN) ' /ACCOUNTANT MEMBER /CHENNAI, 0 /DATED: 16 TH JUNE, 2017 JPV & )12 32 /COPY TO: 1. %/ APPELLANT 2. )*% /RESPONDENT 3. 4 ( )/CIT(A) 4. 4 /CIT 5. 2 ) /DR 6. 7 /GF