THE EXCUTIVE BOARD OF THE METHODIST CHURCH IN INDIA, MUMBAI V. DDIT (E) 1(2), MUMBAI

ITA 3494/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7186 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 19-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S PADMAJA
• Assessee Lawyers: SHANKAR K JALGAR
• Keywords: Reopening of assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI PAWAN SINGH (JM) I.T.A. NO. 3494 /MUM/20 16 (ASSESSMENT YEAR 20 10 - 11 ) THE EXECUTIVE BOARD OF METHODIST CHURCH IN INDIA 1, PROSPECT CHAMBERS GROUND FLOOR, 313, D.N . ROAD, FLORA FOUNTAIN FORT, MUMBAI - 400 001. PAN : AAATT5754E V S . DY. DIRECTOR OF INCOME TAX(E) - 1(2) PIRAMAL CHAMBERS 5 TH FLOOR LALBAUG, PAREL MUMBAI - 400 012. ( APPELLANT ) ( RESPONDENT ) A SSESSEE BY SHRI SHANKAR K. JALGAR DEPARTMENT BY MS. S. PA DMAJA DATE OF HEARING 11 . 0 6 . 201 8 DATE OF PRONOUNCEMENT 15 . 0 6 . 201 8 O R D E R PER B.R. BASKARAN (AM) : - THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 2.3.2016 PASSED BY THE LEARNED CIT(A) - 1, MUMBAI AND IT RELATES TO A.Y. 2010 - 11. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF THE LEARNED CIT(A) IN UPHOLDING THE REOPENING OF ASSESSMENT AND ALSO IN UPHOLDING THE ASSESSMENT OF CAPITAL GAINS ON PROTECTIVE BASIS. 2. LEARNED COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT THE ISSUE UNDER CONSIDERATION RELATES TO COMPUTATION OF CAPITAL GAINS ARISING ON SALE OF LAND. HE SUBMITTED THAT THE ASSESSING OFFICER COMPUTED LONG TERM CAPITAL GAIN AT ` 44.32 CRORES ON SALE OF A LAND LOCATED IN BAREILLY, UTTAR PRADESH. AT THE TIME OF HEARI NG IT WAS POINTED TO THE ASSESSING OFFICER THAT THE VERY SAME LONG TERM CAPITAL GAIN WAS ASSESSED IN THE HANDS OF ANOTHER ASSESSEE NAMED M/S. CLARA SWAIN HOSPITAL, MISSION COMPOUND, BAREILLY, UP. ACCORDINGLY, THE ASSESSING OFFICER ASSESSED THE ABOVE SAID A MOUNT ON PROTECTIVE BASIS IN THE HANDS OF THE ASSESSEE. THE LEARNED CIT(A) ALSO CONFIRMED THE SAME. THE EXECUTIVE BOARD OF METHODIST CHURCH IN INDIA 2 3. LEARNED AR FURTHER SUBMITTED THAT M/S. CLARA SWAIN HOSPITAL HAS CHALLENGED THE ASSESSMENT MADE IN ITS HANDS ON SUBSTANTIVE BASIS, BY FILING APPEAL BEFOR E THE LUCKNOW BENCH OF THE TRIBUNAL. HE SUBMITTED THAT THE SAID APPEAL HAS SINCE BEEN DISPOSED OF BY THE LUCKNOW BENCH OF THE TRIBUNAL , VIDE ITS ORDER DATED 11.6.2015 PASSED IN ITA NO. 347/LKW/2014, WHEREIN THE TRIBUNAL HAS HELD THAT M/S. CLARA SWAIN HOSPI TAL DOES NOT HAVE ANY RIGHT IN THE LAND AND HENCE LONG TERM CAPITAL GAIN CANNOT BE ASSESSED IN ITS HANDS. HE SUBMITTED THAT THE ORDER PASSED BY LUCKNOW BENCH IS PLACED IN THE PAPER BOOK. 4. WHEN IT WAS POINTED OUT TO LEARNED AR THAT PROTECTIVE ASSESSMENT MADE IN THE HANDS OF THE ASSESSEE WOULD BECOME SUBSTANTIAL , WHEN THE ADDITION MADE IN THE HANDS OF ANOTHER PERSON ON SUBSTANTIVE BASIS GETS DELETED , THE LEARNED AR AGREED WITH THE SAME. HOWEVER HE SUBMITTED THAT THE ASSESSMENT MADE IN THE HANDS OF THE AS SESSEE REQUIRES EXAMINATION AFRESH AT THE END OF THE AO IN THE LIGHT OF VARIOUS CONTENTIONS MADE BY THE ASSESSEE IN THE GROUNDS OF APPEAL. HE SUBMITTED THAT THE AO HAS DENIED EXEMPTION U/S 11 WITHOUT PROPER REASONING AND THE ASSESSEE COULD CONTEST THE ASS ESSEE ON MANY OTHER GROUNDS ALSO. 5. THE LEARNED DR, ON THE CONTRARY, SUPPORTED THE ORDER PASSED BY THE LEARNED CIT(A). 6 . HAVING HEARD THE RIVAL CONTENTIONS AND FURTHER IN THE LIGHT OF THE ORDER PASSED BY LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF M/ S. CLARA SWAIN HOSPITAL, REFERRED (SUPRA), WE ARE OF THE VIEW THAT THE ISSUE RELATING TO ASSESSMENT OF LONG TERM CAPITAL GAIN URGED BY THE ASSESSEE IN THE GROUNDS OF APPEAL REQUIRES FRESH EXAMINATION AT THE END OF THE ASSESSING OFFICER. ACCORDINGLY, WE SET ASIDE THE ORDER PASSED BY THE LEARNED CIT(A) ON THE ISSUE OF LONG TERM CAPITAL GAINS AND RESTORE THE SAME TO THE FILE OF THE ASSESSING OFFICER FOR EXAMINING IT AFRESH. AT THE TIME OF HEARING, THE LD A.R DID NOT ARGUE ON THE THE EXECUTIVE BOARD OF METHODIST CHURCH IN INDIA 3 ISSUE OF VALIDITY OF REOPENING OF ASSESSMENT AND ACCORDINGLY WE CONFIRM THE ORDER PASSED BY LD CIT(A) ON THE SAID LEGAL ISSUE. 7 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 15 . 6 .201 8 . SD/ - SD/ - (PAWAN SINGH ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 15 / 6 / 20 1 8 COPY OF THE ORDER FORWARDED TO : 1. THE A PPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// SENIOR P RIVATE S ECRETARY PS ITAT, MUMBAI