ITO WD 19(3)(2), MUMBAI V. LATE IRENE WINFRED THROUGH L./Hs JOHN CURTIS, ALEN CURRTIS & MARK CURTIS, MUMBAI

ITA 3748/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2416 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2005-2006
• Appeal Filed On: 26-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Assessee Lawyers: VISHWAS MEHANDALE
• Section: 54

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (AM) AND AMIT SHUKLA, (JM) . . , , ./ I.T .A. NO. 3748 / MUM/ 201 4 ( / ASSESSMENT YEAR : 200 5 - 06 ) INCOME TAX OFFICER - 19(3)(2), 3 RD FLOOR, PIRAMAL CHAMBERS, ROOM NO.306, LALBAUG, MUMBAI - 400012 / VS. JOHN CURTIS, ALEN CURTIS AND MARK CURTIS, L/H OF LATE MRS. IRENE WINFRED GROUND F LOOR, 52, ST.ANDREWS ROAD, BANDRA (WEST), MUMBAI - 400050 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN : AAFPC0228F / APPELLANT BY M R.NEIL PHILIP . / RESPONDENT BY SHRI VI SHWAS MEHANDALE / DATE OF HEARING : 2 4 .11. 201 5 / DATE OF PRONOUNCEMENT : 2 4 .11 . 201 5 / O R D E R PER B.R. BASKARAN (AM) THE APPEAL FILED BY THE REVENUE IS DIRECTED AGA INST THE ORDER DATED 28 - 03 - 2014 PASSED BY LD CIT(A) - 30, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2005 - 06. THE REVENUE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN HOLDING THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S 54 OF THE ACT. ITA NO. 3748 / MUM/ 201 4 2 2 WE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSEE WAS HOLDING A RESIDENTIAL PROPERTY AND GAVE THE SAME TO A BUILDER UNDER A DEVELOPMENT AGREEMENT DATED 21.5.2003. SUBSEQUENTLY, A DEED OF CONFIRMATION WAS ENTERED ON 29.7.2004. AS PER THE ABOVE SAID AGREEMENT S, THE ASSESSEE WAS TO RECEIVE A SUM OF RS.80.00 LAKHS BY WAY OF CASH AND 1400 SQ.FT. OF CONSTRUCTED AREA. WHILE COMPUTING THE CAPITAL GAIN, THE ASSESSEE DEDUCTED THE VALUE OF 1400 SQ.FT. AS DEDUCTION U/S 54 OF THE ACT. THE AO REJECTED THE CLAIM BY HOLDI NG THAT THE ASSESSEE CANNOT BE CONSIDERED TO HAVE PURCHASED THE PROPERTY IN TERMS OF THE PROVISIONS OF SEC. 54 OF THE ACT. THE LD CIT(A), HOWEVER, ALLOWED THE CLAIM AND HENCE THE REVENUE HAS FILED THIS APPEAL BEFORE US. 3. A PERUSAL OF THE ORDER PASSED BY LD CIT(A) WOULD SHOW THAT THE FIRST APPELLATE AUTHORITY HAS FOLLOWED THE DECISION RENDERED BY THE CO - ORDINATE BENCH OF TRIBUNAL IN THE CASE OF M/S JAWAHAR N GHIA AND OTHERS (ITA NO.4665/M/2012 DATED 19.11.2013), WHEREIN THE CO - ORDINATE BENCH HAS FOLLOWE D THE DECISION RENDERED BY THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. V.T.N. ARVINDA REDDY (120 ITR 46), WHEREIN IT WAS HELD THAT THE TERM PURCHASE AS BUYING FOR A PRICE OR EQUIVALENT OF PRICE BY PAYMENT INKIND OR ADJUSTMENT TOWARDS AN OLD DEBT OR FOR OTHER MONETARY CONSIDERATION. ACCORDINGLY, THE CO - ORDINATE BENCH HAD HELD THAT RESIDENTIAL FLATS ACQUIRED BY THE ASSESSEE BY VIRTUE OF DEVELOPMENT AGREEMENT IN LIEU OF SURRENDERING THE EXISTING PROPERTY IS ELIGIBLE FOR DEDUCTION U/S 54/54F OF THE ACT. 4. AT THE TIME OF HEARING, THE LD D.R COULD NOT FURNISH ANY OTHER CONTRARY DECISION. UNDER THESE SET OF FACTS, WE ARE OF THE VIEW THAT THE LD CIT(A) WAS JUSTIFIED IN DECIDING THIS ISSUE IN FAVOUR OF THE ASSESSEE. ITA NO. 3748 / MUM/ 201 4 3 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. PRONOUNCED ACCORDINGLY ON 24TH NOV, 201 5. 24TH NOV , 2015 SD SD ( / AMIT SHUKLA ) ( . . / B.R. BASKARAN) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI: 24TH NOV 201 5 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI