NARENDRA KUMAR JANAGID, MUMBAI V. ITO - 23(2)(4), MUMBAI

ITA 3841/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4087 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 30-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMADR
• Assessee Lawyers: PARVINDER SINGH VEDANG
• Keywords: Revised return
• Section: 54F; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, M UMBAI BEFORE SHRI SHAMIM YAHYA, AM AND AMARJIT SINGH, JM ITA NO. 3841/MUM/2019 (ASSESSMENT YEAR: 2010-11) NARENDRA KUMAR JANGID R.NO.6, PLOT NO.147, RUKMINIBAI CHAWL, KHERWADI, BANDRA (EAST) MUMBAI-400 051 VS. ITO-23(2)(4) ROOM NO. 115, 1 ST FLOOR MATRU MANDIR, GRANT ROAD MUMBAI-400 007 PAN/GIR NO. AABPJ4764B ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI PARVINDER SINGH VEDANG, AR RESPONDENT BY : MS. SMITA VERMA-DR DATE OF HEARING : 24/02/2021 DATE OF PRONOUNCEMENT : 19 /05/2021 O R D E R PER SHAMIM YAHYA, A. M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-33, MUMBAI (LD .CIT(A) FOR SHORT) DATED 15.03.2019 AND PERTAINS TO THE ASSESSMENT YEAR (A.Y .) 2010-11. 2. THE GROUNDS OF APPEAL READ AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND UNDER THE PROVISIONS OF LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL-33) MUMB AI HAS ERRED IN NOT ALLOWING THE DEDUCTION FOR INVESTMENT IN NEW RESIDENTIAL HOUSE U /S 54 OF THE INCOME TAX ACT 1 96 1 FROM THE LONG TERM CAPITAL GAIN EARNED DURING THE Y EAR WITHOUT APPRECIATING THE FACT THAT ALL THE RELEVANT DETAILS WERE SUBMITTED ON RECORD D URING THE APPELLATE PROCEEDINGS AS PROOF FOR THE DEDUCTION AVAILABLE TO THE APPELLANT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND UNDER THE PROVISIONS OF LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL-33) MUMB AI HAS ERRED IN NOT ACCEPTING THE PEA OF THE APPELLANT THAT THE SALE RECEIPTS OF THE PROPERTY WAS INVESTED WITH RESIDENTIAL HOUSE AND HENCE HE WAS ENTITLED TO A DEDUCTION U/S 54F. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND UNDER THE PROVISIONS OF LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL-33) MUMB AI HAS ERRED IN APPRECIATING THE 2 3841/MUM/2019 FACT THAT ADDITIONAL CLAIM MADE DURING THE APPEAL P ROCEEDINGS NEED TO BE DECIDED ON MERIT AND IF DETAILS WERE INCOMPLETE THE SAME SHOULD BE A SKED DURING THE APPEAL PROCEEDINGS. 4. YOUR APPELLANT HUMBLY SUBMITS THE APPELLANT IS ENTITLED TO DEDUCTION U/S 54F ARISING OUT OF INVESTMENTS MADE IN PURCHASING A RESIDENTIAL HOUSE. 5. YOUR APPELLANT HUMBLY PRAYS THAT THE DEDUCTION OF RS. 6,06, 547/- U/S 54 OF THE INCOME TAX ACT 1961 NOT ALLOWED BY THE FIRST APPELL ATE AUTHORITY IS NOT BASED ON ANY FACTS OR LAW AND KINDLY BE ALLOWED. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A SMALL CARPENTER. IN THE ASSESSMENT PROCEEDINGS ADDITION WAS MADE FOR LONG TERM CAPITAL GAIN FOR SALE OF FLAT. ASSESSEES CLAIM FOR DEDUCTION U/S 54F WAS DENIED ON THE GROUN D THAT THE CLAIM WAS NOT MADE ORIGINALLY. THE LD.CIT(A) CONFIRMED THE SAME AND H ELD AS UNDER:- 4.4 THE APPELLANT DURING THE COURSE OF APPELLATE PR OCEEDINGS HAS SUBMITTED THAT HE IS ENTITLED TO DEDUCTION U/S 54 IN RESPECT OF LONG TER M CAPITAL GAIN. AS DISCUSSED EARLIER, THE APPELLANT DID NOT FILE RETURN AT ANY POINT OF T IME I.E. NEITHER BEFORE DUE DATE IN REGULAR COURSE NOT IN PURSUANCE OF NOTICE U/S 148. HENCE, S UCH CLAIM U/S 54 WAS NOT MADE IN RETURN. FURTHER, THE DEDUCTION WAS NOT CLAIMED AT A NY TIME OF POINT DURING THE SCRUTINY PROCEEDINGS. THEREFORE, THE SAME WAS NEVER EXAMINED BY THE AO. DURING THE APPELLATE PROCEEDINGS, AGREEMENT FOR PURCHASE OF NEW FLAT WAS FILED AN CLAIM U/S 54 WAS MADE ON THAT BASIS. I AM OF THE VIEW THAT SUCH CLAIM CANNOT BE ENTERTAINED MERELY ON BASIS OF INVESTMENT IN THE NEW FLAT. THE APPELLANT HAS NOT C LARIFIED OR SUBMITTED AS TO WHETHER HE HAD PURCHASED ANY OTHER FLAT WITHIN ONE YEAR BEFORE OR TWO YEARS AFTER THE DATE OF TRANSFER. IN OTHER WORDS, COMPLETE DETAILS WERE NOT SUBMITTED TO PROVE THAT ALL THE CONDITIONS OF DEDUCTION U/S 54 HAVE BEEN FULFILLED BY THE ASSESSE E. IN VIEW OF ABOVE, CLAIM OF APPELLANT FOR DEDUCTION U/S 54 IS NOT ENTERTAINED. 4. AFTER THIS ORDER ASSESSEE IS IN APPEAL BEFORE US . 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORD. 6. WE FIND THAT THE ASSESSEE CLAIM OF DEDUCTION U/S 54F HAS BEEN REJECTED WITHOUT DUE EXAMINATION. IT IS SETTLED LAW THAT NO TAX CAN BE C OLLECTED OR IMPOSED EXCEPT UNDER THE MANDATE OF LAW. ACCORDINGLY, THE REJECTION OF CLAIM WITHOUT EXAMINATION IS NOT PERMISSIBLE IN LAW. HONBLE SUPREME COURT IN THE CA SE OF GOETZE (INDIA) LTD. HAS REITERATED THE POWER OF ITAT TO CONSIDER A CLAIM WH ICH WAS MADE OTHERWISE THEN BY 3 3841/MUM/2019 REVISED RETURN. HENCE, IN THE INTEREST OF JUSTICE, WE REMIT THE ISSUE TO THE FILE OF THE AO. THE AO SHALL EXAMINE THE ASSESSEES CLAIM AND DULY D ECIDE THE SAME. 7. IN THE RESULT, THIS APPEAL BY THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 19.5.2021. SD/- SD/- (AMARJIT SINGH) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED : 19.05.2021 THIRUMALESH , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD FILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI