DINESH N. BHANUSHALI, MUMBAI V. ITO 24(1)(5), MUMBAI

ITA 3816/MUM/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8285 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 30-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITNYA ANJARIA LD
• Assessee Lawyers: PRATIK PODDAR PARAS S SAVLA LD
• Keywords: Opportunity of being heard; Set aside
• Section: 54F

Judgement Text

1 ITA NO.3816/MUM/2018 DINESH N.BHANUSHALI IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER ITA NO. 3816/MUM/2018 ASSESSMENT YEAR: 2013-14 DINESH N. BHANUSHALI, 701, RAJ VILLA, JAWAHAR NAGAR ROAD, NO. 17, PLOT NO. 317, GOREGAON(W), MUMBAI-400 062. PAN: AVOPB 8642A VS. I.T.O., 24(1)(5), PIRAMAL CHAMBERS, LALBAUG, MUMBAI-400 051. (APPELLANT) (RESPONDENT) APPELLANT BY: S/SHRI PRATIK PODDAR PARAS S. SAVLA, LD.AR RESPONDENT BY : SHRI CHAITNYA ANJARIA, LD.DR DATE OF HEARING : 1 8 .07.2019 DATE OF PRONOUNCEMENT : 1 8 - 07 - 2019 O R D E R PER B.R. BASKARAN, ACCOUNTANT MEMBER THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 05- 02-2018 PASSED BY LD CIT(A)-36, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2013-14. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN CONFIRMING DISALLOWANCE OF DEDUCTION CLAIMED U/S 5 4F OF THE ACT. 2. I HEARD THE PARTIES AND PERUSED THE RECORD. TH E ASSESSEE SOLD A SHOP FOR A CONSIDERATION OF RS.45.00 LAKHS AND WORKED OUT CAPITAL GAIN THEREON AT RS.36.97 LAKHS. THE ASSESSEE PURCHASED A R ESIDENTIAL FLAT AND ACCORDINGLY CLAIMED DEDUCTION U/S 54F OF THE ACT. TH E AO NOTICED THAT THE NEW RESIDENTIAL FLAT WAS PURCHASED AFTER THE EXP IRY OF TIME LIMIT PRESCRIBED U/S 139(1) OF THE ACT, IN WHICH CASE, THE ASSES SEE SHOULD HAVE DEPOSITED MONEY IN CAPITAL GAINS ACCOUNT SCHEME. HOWEVE R, THE ASSESSEE HAD DEPOSITED MONEY IN FIXED DEPOSITS. SINCE TH E ASSESSEE DID 2 ITA NO.3816/MUM/2018 DINESH N.BHANUSHALI NOT DEPOSIT MONEY IN CAPITAL GAINS ACCOUNT SCHEME, THE AO REJECTED THE CLAIM FOR DEDUCTION U/S 54F OF THE ACT. THE LD CIT(A) ALSO CONFIRMED THE SAME BY FOLLOWING THE DECISION RENDERED BY HONBLE JURISDICT IONAL BOMBAY HIGH COURT IN THE CASE OF HUMAYUN SULEMAN MERCHA NT VS. CIT (2016)(73 TAXMANN.COM 2). 3. THE LD A.R SUBMITTED THAT THE HONBLE KERALA HIGH COURT HAD ALSO TAKEN THE VIEW IN THE CASE OF XAVIER J PULIKKAL THAT THE D EDUCTION U/S 54/54F IS NOT AVAILABLE IF THE UNUTILISED FUNDS WERE NOT DEPO SITED IN CAPITAL GAINS SCHEME. WHEN THE MATTER REACHED HONBLE S UPREME COURT, THE HONBLE APEX COURT, IN THE VERY SAME CASE RE PORTED IN (2016) 73 TAXMANN.COM 34, HAS RESTORED THE ISSUE TO THE FILE OF THE AO FOR EXAMINING THE ISSUE DENOVA WITHOUT BEING INFLUENCED BY ANY OBSERVATIONS MADE BY HONBLE HIGH COURT. THE LD A.R SUB MITTED THAT THE MUMBAI BENCH OF ITAT HAS FOLLOWED THE DECISION RENDERE D BY HONBLE SUPREME COURT AND RESTORED AN IDENTICAL ISSUE TO THE FILE OF THE AO FOR EXAMINING IT AFRESH IN THE CASE OF ACIT VS. SHRI RAMAKANT M KADAM (ITA NO.4514/MUM/2014 DATED 05-04-2018). 4. I HEARD LD D.R AND PERUSED THE RECORD. IN VIEW O F THE FOREGOING, I SET ASIDE THE ORDER PASSED BY LD CIT(A) AND RESTORE TH E ISSUE TO THE FILE OF THE AO WITH THE DIRECTION TO EXAMINE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 18-07-2019 SD/- ( B.R. BASKARAN) ACCOUNTANT MEMBER MUMBAI, DATED : 18 TH JULY,2019 3 ITA NO.3816/MUM/2018 DINESH N.BHANUSHALI *PP, SPS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. THE CIT 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER (ASSISTANTREGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI DATE INITIAL WHETHER DICTATION PAD ENCLOSED WITH THE FILE : YES/NO. 1. DRAFT DICTATED ON 17.07.2019 NO, PENDRIVE ORDER PREPARED BY HON.AM SR.PS 2. DRAFT PLACED BEFORE AUTHOR 18.07.2019 MATTER COMPLETED/TYPED P.P SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 18.07.2019 P.P JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 18/07 PP SR.PS 6. DATE OF PRONOUNCEMENT 18/7 SR.PS 7. FILE SENT TO THE BENCH CLERK 18/7 PP SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER