MALVIKA DILIP VAKIL, SURAT V. ASST CIT CIR 17(1), MUMBAI

ITA 3448/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4868 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 11-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI SANDEEP GOSAIN, JM ITA NO. 3448 /MUM/ 2017 (ASSESSMENT YEAR: 2011 - 12 ) MALVIKA DILIP VAKIL L/H. MR. DILIP R. VAKIL 803, PLATINUM RESIDENCY, NEAR LAL BUNGALOW, ATHWALINES, SURAT, GUJARAT 395 007 VS. ASST. CIT, CIRCLE 17(1) ROOM NO. 117, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 PAN/GIR NO. AABPV 0125 A ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : NONE RESPONDENT BY : SHRI CHAITANYA ANJARIA DATE OF HEARING : 04.12.2018 DATE OF PRONOUNCEMENT : 08.02 .2019 O R D E R PER SHAMIM YAHYA, A. M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 28, MUMBAI (LD.CIT(A) FOR SHORT) DATED 13.01.2017 AND PERTAINS TO THE ASSESSMENT YEAR (A.Y.) 2011 - 12. 2. THE GROUNDS OF APPEAL READ AS UNDER: 1. BENEFIT NOT GRANTED ON CAPITAL GAINS FOR INVESTMENT MADE UNDER SECTION 54EC OF THE INCOME TAX ACT, 1961 {'THE ACT') AMOUNTING TO R S. 45,00.000 1 .1 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) - 28 HAS ERRED IN NOT ALLOWING THE CLAIM OF INVESTMENT MADE IN SECTION 54EC OF THE ACT. 1.2 THE LEARNED CIT{A) - 28 ERRED IN NOT ALLOWING THE ABOVE CLAIM ON THE GROUND THAT THE PART PERFORMANCE OF THE CONTRACT FOR SALE TOOK PLACE ON THE DATE OF ENTERING INTO THE AGREEMENT TO SALE AND HENCE THE SAID DATE WOULD BE THE DATE OF TRANSFER OF PROPERTY AS PER SECTION 2(47) OF THE ACT WITHOUT APPRECIATING THE FACT THAT THE POSSESSION OF THE PROPERTY AND 95% OF THE CONSIDERATION WAS PARTED AT A LATER DATE. 3. BRIEF FACTS OF THE ISSUE RELATES TO DENIAL OF DEDUCTION U/S. 54EC OF THE ACT. THE A.O. WAS OF THE OPINION THAT THE SALE AGREEMENT WAS ENTERED ON 26.07.2010. THAT THE 2 ITA NO. 3448/MUM/2017 ASSESSEE INVESTED IN 54EC BOND ON 28.02.2011. THE ASSESSEE RESPONDED IN THIS REGARD AS UNDER: 'COPY OF NHAI BONDS PURCHASED ON 28.02 .2011 AMOUNTING TO RS. 45 LACS IS ATTACHED. IT MAY BE NOTED THAT THE AGREEMENT FOR SALE IS DATED 26TH JULY, 2010 BUT THE S AME HAS BEEN REGISTERED ON 28TH OCTOBER, 2010 AND THE SALE CONSIDERATION IS ALSO RECEIVED ON THE SAME DATE AND POSSESSION IS ALSO HANDED OVER ON THE SAME DATE. THE POSSESSION RECEIPT ATTACHED WITH THE AGREEMENT FOR SALE INDICATES THE SAME. IT MAY BE NOTED THAT THE INVESTMENTS MADE ON 28.02.2011 IN NHAI BONDS U/S 54 EC OF THE I. T. ACT, 1961 ARE WITHIN THE TIME LIMIT OF SIX MONTHS FROM THE DATE OF TRANSFER OF THE ASSET WHICH IN THIS CASE IS 28TH OCTOBER, 2010 THE DATE OF HANDING OVER THE POSSESSION OF THE ASSETS AND ALSO THE DATE ON WHICH THE AMOUNT IS RECEIVED AND ALSO THE DATE ON WHICH THE AGREEMENT IS REGISTERED ARID NOT 26TH JULY, 2010 THE DATE OF THE AGREEMENT. IN VIEW OF THIS THE DEDUCTION CLAIMED U/S 54 EC ON CAPITAL GAINS ON SALE OF ASSETS S HOULD BE ALLOWED. ' 4. WITHOUT BOTHERING TO REBUT THIS SUBMISSION, THE A.O. HELD AS UNDER: 4.6 THE SUBMISSIONS MADE BY THE ASSESSEE HAVE BEEN PERUSED BUT HAVE NOT FOUND TO BE ACCEPTABLE IN THE LIGHT OF THE FACT THAT INVESTMENT IS NOT MADE WITHIN SIX MON THS OF SALE AGREEMENT. THE DEDUCTION CLAIMED IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 5. THE LD. C IT(A) CONFIRMED THE ORDER OF THE A.O. AND WITHOUT DE CIDING THE CASE LAW RELIED UPON BY THE DISTINGUISHED TH EN LACONICALLY THAT THEY ARE NOT APPLICABLE O N FACTS. 6. AGAINST THE ABOVE ORDER, THE ASSESSEE IS IN APPEAL BEFORE US. 7. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIVE (LD. DR FOR SHORT) AND PERUSED THE MATERIAL AVAILABLE ON RECORD. NONE APPEARED FOR AND ON BEHALF OF THE ASSESSEE DESPITE NOTICE SENT. THE NOTICE SENT HAS RETUR NED UNSERVED. HENCE, WE PROCEED TO ADJUDICATE THE ISSUE BY HEARING THE LD. DEPARTMENTAL REPRESENTATIVE AND PERUSING THE RECORDS. 8. UPON CAREFUL CONSIDERATION, WE FIND THAT THE ASSESSEE HAS DULY DISCLOSED THAT SALE CO NSIDERATION WAS RECEIVED ON SUBSEQUENT DATE WHEN POSSESSION WAS GRANTED. THE 3 ITA NO. 3448/MUM/2017 INVESTMENT MADE IS WELL WITHIN SIX MONTHS OF THIS DATE . THE A.O. HAS NOT AT ALL RE BUTTED I T. THE LD. CIT(A) HAS FOLLOWED THE A.O.S WRONG APPROACH. 9. IN OUR CONSIDERED OPINION, ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSEE HAS MADE THE INVESTMENT DULY IN TIME AND IS ENTITLED TO DEDUCTION U/S. 54EC. ACCORDINGLY, THE ORDER OF THE AUTHORITIES BELOW IS REVERSED. 10. IN THE RESULT, TH IS APPEAL BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 0 8 . 0 2 . 2 0 1 9 S D / - S D / - ( SANDEEP GOSAIN ) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 0 8 . 0 2 . 2 0 1 9 ROSHANI , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD FILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI