ALKA V PATKAR, MUMBAI V. ITO 26(1)(2), MUMBAI

ITA 3754/MUM/2014

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7971 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 26-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: DR PRAYAG JHA
• Keywords: Additional evidence
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER ITA NO.8102/M/2011 ASSESSMENT YEAR: 2008-09 ITA NO.3754/M/2014 ASSESSMENT YEAR: 2008-09 MRS. ALKA V. PATKAR, 402, CHINTAN, PRATHAMESH PARK, VEERA DESAI ROAD (EXTN.), ANDHERI (W), MUMBAI 400 053 PAN: ADMPP6671P VS. INCOME TAX OFFICER, WARD 26(1)(2), ROOM NO.604, SMT. K.G. MITTAL AYURVEDIC HOSPITAL BLDG., CHARNI ROAD, MUMBAI 400 002 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : DR. PRAYAG JHA, A.R. REVENUE BY : SHRI RAJESH KUMAR YADAV, D.R. DATE OF HEARING : 04.10.2017 DATE OF PRONOUNCEMENT : 20.12.2017 O R D E R PER D.T. GARASIA , JUDICIAL MEMBER: THE ABOVE TITLED APPEALS HAVE BEEN PREFERRED BY TH E ASSESSEE AGAINST THE ORDER DATED 28.09.2011 & 20.03.2014 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER R EFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT YEAR 2008-09. ITA NO.8102/M/2011 & ITA NO.3754/M/2014 MRS. ALKA V. PATKAR 2 ITA NO.8102/M/2011 2. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSI NG OFFICER (HEREINAFTER REFERRED TO AS THE AO) DURING THE COUR SE OF ASSESSMENT PROCEEDING FOUND THAT THE ASSESSEE HAS SOLD THE FLA T FOR A CONSIDERATION OF RS.1,11,00,000/- ON 26.10.2007. S UBSEQUENTLY, SHE HAS ENTERED INTO A MOU WITH SHRI SHASHIKANT K. MANE ON 20.02.2008 FOR PURCHASE OF ANOTHER FLAT FOR A CONSI DERATION OF RS.1,03,00,000/-. A PART SUM OF RS.73 LAKHS WAS GI VEN TO SHRI SHASHIKANT K. MANE AS ADVANCE. HOWEVER, SINCE NO D EED WAS REGISTERED IN THE NAME OF ASSESSEE, NOR ANY POSSESS ION WAS HANDED OVER TO THE ASSESSEE, THE AO REFUSED TO ALLOW EXEMP TION U/S. 54 OF THE ACT AND AO MADE ADDITION OF RS.1,01,91,758/- AS LONG TERM CAPITAL GAINS. 3. MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CIT (A) HAS DISMISSED THE SAME. 4. THE LD. A.R. SUBMITTED THAT ASSESSEE HAS SOLD TH E FLAT ON 26.10.07 FOR RS.1,11,00,000/-. SHE HAS ENTERED INT O A MOU WITH SHRI SHASHIKANT K. MANE ON 20.02.2008 FOR PURCHASE OF ANOTHER FLAT FOR A CONSIDERATION OF RS.1 CRORE. THE PRICE WAS M UTUALLY INCREASED TO RS.1,03,00,000/-. PURCHASE PRICE WAS PAID OF RS .30,00,000/- ON 19.02.08 AND RS.43,00,000/- ON 11.03.08. THUS RS.7 3 LAKHS WAS PAID. SELLER DID NOT HANDOVER THE POSSESSION. HEN CE, SHE DID NOT REGISTER THE MOU. THE LITIGATION STARTED BY THE AS SESSEE VIDE LEGAL NOTICE DATED 21.07.08. SECOND NOTICE WAS ISSUED ON 21.08.08. THE ITA NO.8102/M/2011 & ITA NO.3754/M/2014 MRS. ALKA V. PATKAR 3 SUIT FILED BY THE ASSESSEE BEFORE HONBLE BOMBAY HI GH COURT FOR SPECIFIC PERFORMANCE OF MOU. THE HIGH COURT VIDE O RDER DATED 15.04.09 IN SUIT NO.1043 OF 2009 TOOK COGNIZANCE OF THE MOU AND PASSED AD INTERIM ORDER RESTRAINED THE SELLER FROM ALIENATING THE SUIT FLAT OR FROM CREATING ANY THIRD PARTY INTEREST IN T HE FLAT. HIGH COURT PASSED THE ORDER DATED 16.11.2010 ASKING THE SELLER TO REFUND RS.73,00,000/- WITH INTEREST WITHIN 12 WEEKS. THE HIGH COURT PASSED THE FINAL ORDER ON 16.06.2011 DIRECTING THE PROTHONOTARY TO PAY RS.92,00,000/- TO THE ASSESSEE. ASSESSEE RECEI VED RS.92,00,000/- ON 19.07.2011. ASSESSEE BOUGHT ANOT HER FLAT ON 24.10.2011 AND PAID RS.95,67,600/-. MOU WAS AN AGR EEMENT ENFORCED BY THE HONBLE BOMBAY HIGH COURT THOUGH NO T REGISTERED. THE LD. A.R. SUBMITTED THAT REGISTRATION OF DOCUMEN T IS NOT REQUIRED FOR THE PURPOSE OF SECTION 54 AND IN THIS REGARD RE LIED UPON THE DECISIONS OF HONBLE KARNATAKA HIGH COURT IN THE CA SES OF CIT VS. SHAKUNTALA DEVI (2016) 389 ITR 366 (KAR.) AND CIT V S. R.L. SOOD (2000) 245 ITR 727. THE LD. A.R. SUBMITTED THAT HE COULD NOT SUBMIT THIS ADDITIONAL EVIDENCE BEFORE THE AO. SIN CE HE COULD NOT FILE THIS ADDITIONAL EVIDENCE BEFORE THE LOWER AUTH ORITIES HE HAS FILED THE APPLICATION FOR ADMITTING THE ADDITIONAL EVIDEN CE. 5. WE FIND THAT THIS ADDITIONAL EVIDENCE RELATES TO ASSESSEE AND THESE ARE DOCUMENTS WHICH GO TO THE ROUTE OF THE CA SE. THEREFORE, WE ADMIT THE SAME AND RESTORE THIS MATTER BACK TO THE FILE OF THE AO FOR A DECISION AFRESH. AO IS DIRECTED TO GIVE DUE OPPORT UNITY OF HEARING TO THE ASSESSEE. ITA NO.8102/M/2011 & ITA NO.3754/M/2014 MRS. ALKA V. PATKAR 4 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ITA NO.3754/M/2014 7. AS WE HAVE ALREADY RESTORED THE APPEAL NO.8102/M /2014 ON WHICH THE AO HAS LEVIED THE PENALTY ON THE GROUND T HAT ADDITION OF RS.1,01,91,758/- WAS MADE ON ACCOUNT OF LONG TERM C APITAL GAINS, WE FIND THAT THE MAIN QUANTUM ADDITION DOES NOT SURVIV E. THEREFORE, WE CANCEL THE PENALTY ORDER. WE DIRECT THAT WHILE PASS ING THE FRESH ASSESSMENT ORDER AO IS AT LIBERTY TO PASS THE FRESH PENALTY ORDER, AS PER LAW. 8. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20.12.2017. SD/- SD/- (N.K. PRADHAN) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 20.12.2017. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.