PUSUPATI JAANNATH VENKATESH, DOMBIVALI V. ACIT CIR 1, THANE

ITA 3715/MUM/2013

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9574 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 10-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTAL
• Keywords: Salary income; Cost of acquisition
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI RAVISH SOOD , JM ITA NO.3715 / MUM/20 1 3 ( ASSESSMENT YEAR : 2009 - 10 ) SHRI PISUPATI JAGANNATH VENKATESH C/O. ADVOCATE N.A. KULKARNI 1 ST FLOOR, WADALA, BUILDING NEAR DNSB BANK MANPADA ROAD, DOMBIVALI (E) VS. ACIT CIR 1 6 TH FLOOR, ASHAR IT PARK WAGLE INDUSTRIAL ESTATE THANE 400 604 PAN/GIR NO. AHOPP1050E APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI N.A. KULKARNI REVENUE BY SHRI RAJAT MITTAL DATE OF HEARING 12 / 09 /201 7 DATE OF PRONOUNCEME NT 13 / 09 /201 7 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - II, THANE DATED 18/02/2013 FOR A.Y.2009 - 10 IN THE MATTER OF ORDER PASSED U/S.143(3) OF THE IT ACT. 2. FIRST GRIEVANCE OF ASSESSEE RELATES TO DISALLOWANCE OF LONG TERM CAPITAL GAINS. 3. FACTS IN BRIEF ARE THAT THE ASSESSEE HAS SHOWN INCOME FROM SALARY AND OTHER SOURCES. DURING THE YEAR UNDER CONSIDERATION, HE HAS SOLD A RESIDENTIAL PROPERTY WHERE FROM THE LONG TERM CAPITAL GAIN AFTER CLAIMING INDEXED COST OF ACQUISITION WORKED OUT TO RS. 65,98,740/ - BEING 50% ITA NO. 3715/MUM/2013 SHRI PISUPATI JAGANNATH VENKATESH 2 SHARE THEREIN. THE ASSESSEE HAS CLAIMED ENTIRE CAPITAL GAIN AS EXEMPTED U/S. 54 ON THE GROUND THAT HE HAS I NVESTED CAPITAL GAINS TO THE EXTENT OF RS. 67,27,087/ - IN A RESIDENTIAL PROPERTY PURCHASED FROM MAHINDRA LIFE SPACES. ON VERIFICATION FROM THE MATERIAL AVAILABLE ON RECORD AS ALSO SUBMISSION MADE BY THE ASSESSEE DURING THE COURSE ASSESSMENT PROCEEDINGS, TH E A.O NOTICED THAT A FLAT BEARING NO. B - 901 AT MAHINDRA LIFE SPACES HAD BEEN ALLOTTED TO THE ASSESSEE WHEREIN INVESTMENT TILL THE DATE OF FILING OF RETURN I.E. 31 ST JULY, 2009 WAS ONLY RS. 44,35,738/ - . SINCE THE CAPITAL GAIN HAS BEEN UTILIZED TO THE EXTENT OF RS. 44,36,7387 - OUT OF TOTAL LONG TERM CAPITAL GAIN OF RS. 65,98,740/ - , THE A.O TREATED THE BALANCE AMOUNT OF LONG TER M CAPITAL GAIN AT RS. 21,59,002/ - AS TAXABLE AND ACCORDINGLY, THE TAXED THE SAME. 4. BY THE IMPUGNED ORDER, CIT(A) CONFIRMED THE ACTIO N OF THE AO AGAINST WHICH ASSESSEE IS IN FURTHER APPEAL BEFORE US. 5. LEARNED AR PLACED ON RECORD THE ORDER OF THE TRIBUNAL IN THE CASE OF WIFE OF THE ASSESSEE , MEENA PISUPATI JAGANNATH IN ITA NO.3713/MUM/2013 DATED 25/04/2017, WHO WAS HOLDING 50% SHARE I N THE VERY RESIDENTIAL PROPERTY, WHERE T HE TRIBUNAL HAVE DIRECTED FOR COMPUTING CAPITAL GAIN AFTER TAKING INTO ACCOUNT INVESTMENT MADE TILL DATE OF FILING RETURN U/S.139(4). THE PRECISE OBSERVATION OF THE TRIBUNAL WAS AS UNDER: - 3. AT THE OUTSET IN THIS CA SE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE TOTAL AMOUNT OF INVESTMENT IN THE NEW RESIDENTIAL HOUSE WAS PAID WITHIN THE DUE DATE FOR FILING OF RETURN U/S. 139(4) OF THE I.T. ACT. HE FURTHER SUBMITTED THAT HONBLE GUWAHATI HIGH COURT IN THE CASE OF CI T VS RAJESH KUMAR JALAN IN ITA NO. 127 OF 2007 VIDE ORDER DATED 09.08.2006 HAS HELD THAT WHILE GRANTING EXEMPTION U/S.54, INVESTMENT OF CAPITAL GAIN UP TO THE DATE OF FURNISHING RETURN IS ELIGIBLE AND FOR THIS PURPOSE RETURN FILE U/S. 139(4) ITA NO. 3715/MUM/2013 SHRI PISUPATI JAGANNATH VENKATESH 3 WOULD BE TAKEN AT PAR WITH THE RETURN FILE U/S. 139(1). 4. UPON CAREFUL CONSIDERATION WE FIND THAT IN THIS CASE AUTHORITIES BELOW HAVE GRANTED BENEFIT TO THE ASSESSEE FOR THE SUMS PAID UP TO THE DATE OF FILING OF RETURN U/S.139(1). HOWEVER NOW IT IS THE PLEA OF THE LD. COUNSEL OF THE ASSESSEE THAT AS PER THE AFORESAID HONBLE GUWAHATI HIGH COURT DECISION BENEFITS FOR PAYMENT UP TO THE DATE SPECIFIED U/S. 139(4) SHOULD BE GIVEN. NO JURISDICTIONAL HIGH COURT DECISION CONTRARY TO THIS PROPOSITION HAS BEEN SHOWN BEFORE US. H ENCE IN THE INTEREST OF JUSTICE WE REMIT THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL EXAMINE THE AMOUNTS PAID IN THIS CASE FOR THE INVESTMENT OF NEW PROPERTY IN ACCORDANCE WITH THE DECISION OF HONBLE GUWAHATI HIGH COURT AB OVE AND GRANT DEDUCTION U/S.54 ACCORDINGLY . IN THE RESULT, THIS APPEAL BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. 6. AS THE FACTS AND CIRCUMSTANCES IN THE CASE OF ASSESSEE ARE SAME, RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL IN THE C ASE OF ASSESSEES WIFE, WE DIRECT THE AO TO RECOMPUTE CAPITAL GAIN AFTER TAKING INTO ACCOUNT INVESTMENT MADE TILL DATE OF FILING RETURN U/S. 139(4). WE DIRECT ACCORDINGLY. 7. GROUND NO. 2 & 3 WERE NOT PRESSED, THE SAME ARE THEREFORE DISMISSED IN LIMINI. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 13 / 09 /2017 S D/ - ( RAVISH SOOD ) S D/ - ( R.C.SHARMA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 13 / 09 /201 7 KARUNA SR. PS ITA NO. 3715/MUM/2013 SHRI PISUPATI JAGANNATH VENKATESH 4 COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//