BAKIR B. JAVERI, MUMBAI V. ITO 8(1)(1), MUMBAI

ITA 3334/MUM/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2481 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2015
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 06-05-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 11-05-2012
• Court: TRIBUNAL
• Assessee Lawyers: S S AGARWAL
• Keywords: Reopening of assessment

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B , BENCH MUMBAI BEFORE SHRI SHAILENDRA KUMAR YADAV , JM & SHRI R.C.SHARMA, AM ./ ITA NO . 3334 / MUM/20 1 2 ( / ASSESSMENT YEAR : 20 0 4 - 20 0 5 ) BA KIR B. JAVERI, A1 - JAVARAT, 10 TH ROAD, JVPD SCHEME, JUHU, MUMBAI - 400059 VS. ITO - 8(1)(1), MUMBAI ./ ./ PAN/GIR NO. : A A APJ 6490 J ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI S.S.AGA RWAL /REVENUE BY : SHRI AIRIJU JAIKARAN / DATE OF HEARING : 0 9 / 11 / 2015 / DATE OF PRONOUNCEMENT 13/11 /2015 / O R D E R PER R.C.SHARMA (A.M) : TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINS T THE ORDER OF CIT(A), DATED 2 - 3 - 2012 , FOR THE ASSESSMENT YEAR 200 4 - 0 5 , IN THE MATTER OF ORDER P ASSED U/S.143(3) R.W.S.147 OF THE I.T.ACT . 2. IN GROUND NO.1, THE ASSESSEE HAS ALLEGED THE REOPENING OF ASSESSMENT. IN GROUND NO.2 TO 4 ASSESSEE HAS ALLEGED THE ACTION OF CIT(A) IN DETERMINING THE INCOME OF 9% AS SALEABLE FSI IN THE HANDS OF THE ASSESSEE. 3. WE HAVE CONSIDERED RIVAL CONTENTIONS AND FOUND THAT ASSESSMENT WAS REOPENED ON THE PLEA THAT ASSESSEE HAS WRONGLY CLAIMED DEDUCTION U/S.54 OF THE ACT, THE REFORE, INCOME OF THE ASSESSEE HAS ESCAPED ASSESSMENT. AFTER RECORDING DUE REASONS THE ASSESS MENT WAS REOPENED BY ISSUE OF VALID NOTICE U/S.148. ACCORDINGLY, THERE IS NO INFIRMITY IN THE ORDER OF AO FOR INITIATING THE ASSESSMENT PROCEEDINGS U/S. 147. ITA NO. 3334/12 2 4. WIT H REGARD TO MERIT OF THE ADDITION, WE FOUND THAT THE CIT(A) HAS RESTORED THE MATTER BACK TO THE FILE OF AO WITH A DIRECTION TO EXAMINE THE ISSUE IN DETAIL AFTER COLLECTING RELEVANT INFORMATION FROM THE DEVELOPERS AND ASSESS AND TO COMPUTE THE CAPITAL GAIN ACCORDINGLY. THE CIT(A) FURTHER FOUND THAT THE AO HAS NOT GIVEN DEDUCTION U/S.54 TO THE ASSESSEE ON THE GROUND THAT THE AGREEMENT TO PURCHASE A NEW PROPERTY WAS ENTERED BEFORE ONE YEAR OF ENTERING INTO THE AGREEMENT TO SALE THE PROPERTY IN QUESTION. ACCORD INGLY THE AO WAS DIRECTED TO CONSIDER ASSESSEES ELIGIBILITY FOR DEDUCTION U/S.54. NOTHING WAS SHOWN BY THE ASSESSEE TO POINT OUT ANY FAULT IN THE ORDER OF CIT(A). ACCORDINGLY, WE UPHELD THE DIRECTION OF CIT(A) 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS D ISMISSED . O RDER PRONOUNCED IN THE OPEN COURT ON THIS 13/11 / 201 5 . SD/ - SD/ - ( SHAILENDRA KUMAR YADAV ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 13/11 /201 5 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. R EGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//