KISHORE AJITSHI BHATIA, MUMBAI V. CIT 16, MUMBAI

ITA 3879/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4870 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2012-2013
• Appeal Filed On: 26-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS JYOTHILAKSHMI NAYAK
• Assessee Lawyers: PRADIP N KAPASI
• Keywords: Capital asset; Question of law
• Section: 54F; 54; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H , BENCH MUMBAI BEFORE SHRI M. BALAGANESH , AM & SHRI RAM LAL NEGI , JM ITA NO. 3879 / MUM/20 1 7 ( ASSESSMENT YEAR : 2012 - 13 ) SHRI KISHORE AJITSHI BHATIA 1072/72, A - WING CLOVER REGENCY RAMJI ASHAR LANE GHATKOPAR (W EST) MUMBAI 400 077 VS. CIT - 16, MUMBAI PAN/GIR NO. AABPB8092L ( APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY SHRI PRADIP N KAPASI REVENUE BY MRS. JYOTHI LAKSHMI NAYAK DATE OF HEARING 05 / 02 /201 9 DATE OF PRONOUNCEMENT 08 / 02 /201 9 / O R D E R PER M. BALAGANESH (A.M) : THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF CIT - 16, MUMBAI DATED 30/03/2017 FOR A.Y.2012 - 13 IN THE MATTER OF ORDER PASSED U/S.263 OF THE IT ACT, 1961. 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD. CIT WAS JUSTIFIED IN INVOKING REVISIONARY JURISDICTION U/S.263 OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS ISSUE ARE THAT THE ASSESSEE IS A COST ACCOUNTANT AND HAD FILE D ITS RETUR N OF INCOME FOR THE A.Y.2012 - 13 ON ITA NO. 3879/MUM/2017 SHRI KISHORE AJITSHI BHATIA 2 25/09/2012 DECLARING TOTAL INCOME OF RS.13,38,940/ - . THE ASSESSMENT WAS COMPLETED DETERMINING THE TOTAL INCOME OF RS.13,79,320/ - U/S.143(3) OF THE ACT DATED 10/09/2014. THE LD. AO IN THE SAID ASSESSMENT ORDER OBSERVED THA T ASSESSEE HAD FURNISHED THE TAX AUDIT REPORT IN FORM 3CD, BALANCE SHEET, PROFIT AND LOSS ACCOUNT, COPIES OF BANK ACCOUNTS, COPY OF SALE AGREEMENT, COPY OF PURCHASE AGREEMENT OF OFFICE AND RESIDENTIAL PREMISES AND COPY OF LOAN TAKEN FROM HDFC BANK TOGETHER WITH THE RELEVANT BANK STATEMENTS THEREON DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 3.1. THE LD. ADMINISTRATIVE CIT SOUGHT TO INVOKE HIS REVISIONARY JURISDICTION U/S.263 OF THE ACT BY TREATING THE ORDER OF THE LD. AO AS ERRONEOUS IN AS MUCH AS IT IS PR EJUDICIAL TO THE INTEREST OF THE REVENUE ON THE GROUND THAT ASSESSEE HAD DECLARED LONG TERM CAPITAL GAINS OF RS. 44,58,866/ - ON SALE OF RESIDENTIAL UNIT ON 21/04/201 1 AND CLAIM ED EXEMPTION U/S.54 OF THE ACT BY MAKING INVESTMENT OF RS.55,04, 640/ - IN A NEW RESIDENTIAL PROPERTY, POSSESSION OF WHICH WAS RECEIVED ON 01/05/2010 BY ASSESSEE. THE LD. CIT OBSERVED THAT THE INVESTMENT IN THE NEW RESIDENTIAL PROPERTY WAS NOT MADE WITHIN ONE YEAR PRIOR TO THE DATE OF TRANSFER AND ACCORDINGLY , IN HIS OPI NION, THE ASSESSEE WAS NOT ELIGIBLE FOR EXEMPTION U/S.54 OF THE ACT. THE LD. CIT OBSERVED IN PARA 3 OF HIS ORDER THAT THE LD. AO NEITHER RAISED ANY SPECIFIC QUERY ON THIS ISSUE NOR DISCUSSED THE MATTER IN THE ASSESSMENT ORDER AND ACCORDINGLY COMPLETED THE ASSESSMENT WITHOUT MAKING PROPER ENQUIRIES / VERIFICATIONS. A SHOW - ITA NO. 3879/MUM/2017 SHRI KISHORE AJITSHI BHATIA 3 CAUSE NOTICE U/S.263 OF THE ACT WAS ISSUED TO THE ASSESSEE BY LD. CIT IN THIS REGARD. 3.2 THE ASSESSEES REPLY TO SHOW CAUSE NOTICE U/S 263 OF THE ACT BY NARRATING THE ENTIRE FACTS ARE AS U NDER: - DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS SOLD A FLAT SITUATED AT 101, SUNFLOWER, RAJAWADI ROAD NO. 2, GHATKOPAR EAST, MUMBAI - 400 077 ON 21,04.2011 FOR A TOTAL CONSIDERATION OF RS. 90,00, 000 / - AND COMPUTED LONG TERM CAPITAL GAIN OF RS. 44,58,866/ - . IN THE RETURN OF INCOME, THE ASSESSEE HA S CLAIMED EXEMPTION U/S. 54 OF THE I.T. ACT, FOR HAVING INVESTED IN A NEW RESIDENTIAL FLAT AT CLOVER REGENCY, WING - A SITUATED AT TEJPAL WADI, R AMJI ASHAR LANE, GHATKOPAR, EAST, MUMBAI - 400 077, POSSESSION OF WHICH WAS RECEIVED ON 01.05.2010 . AS PER PROVISION OF SECTION 54 OF THE ACT, THE ASSESSEE CAN CLAIM EXEMPTION U/S. 54 OF THE ACT PROVIDED IT PURCHASES A NEW RESIDENTIAL FLAT ONE YEAR BEFORE OR TWO YEARS AFTER FROM THE DATE OF SALE. IN THE INSTANT CASE, THE PURCHASE WAS WITHIN ONE YEAR FROM THE DATE OF SALE I.E. 21.04.2011 AND THEREFORE, THE ASSESSEE HAS RIGHTLY CLAIMED EXEMPTION U/S. 54 OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS SUBMITTED THE COMPUTATION OF TOTAL INCOME, C ALCULATION OF LONG TERM CAPITAL GAIN, WORKING OF EXEMPTION U/S. 54 OF THE ACT, COPY OF SALE AGREEMENT, COPY OF PURCHASE AGREEMENT OF THE RESIDENTIAL PREMISES AND THE COPY OF POSSESSION LETTER. THE LD A.O. AFTER VERIFYING ALL THE ABOVE DOCUMENTS ACCEPTED TH E ASSESSEE'S CLAIM, REGARDING EXEMPTION U/S. 54 OF THE ACT. 3.3. THE LD. CIT OBSERVED THAT THE PURCHASE AGREEMENT WAS ENTERED ON 29/03/2007 WHEREIN IT MANDATED PAYMENTS TO BE MADE BY THE ASSESSEE ON VARIOUS DATES AND THE POSSESSION OF THE FLAT WAS TO BE HANDED OVER TO THE ASSESSEE BY 31/12/2008. THE LD. CIT OBSERVED THAT DURING THE SPECIFIED PERIOD WHICH IS ONE YEAR BEFORE THE SALE OF PROPERTY I.E., BETWEEN 21/04/2010 TO 2 0 /04/2011, NO PAYMENT WAS MADE BY THE ASSESSEE AS PER THE PURCHASE AGREEMENT AND THA T THE ENTIRE PAYMENT OF RS.55,04,640/ - WAS MADE BEFORE THE SPECIFIED PERIOD AND ACCORDINGLY, HE ITA NO. 3879/MUM/2017 SHRI KISHORE AJITSHI BHATIA 4 CONCLUDED THAT THE PURCHASE OF NEW PROPERTY HAS ALREADY BEEN E FFECTED BEFORE THE SPECIFIED PERIOD. 3.4. THE LD. CIT ALSO OBSERVED THAT THERE IS NO EVIDENCE ON R ECORD TO SHOW THAT THE ASSESSEE HAD MADE SOME PAYMENT DURING THE SPECIFIED PERIOD I.E., 21/04/2010 TO 2 0 /04/2011. HE OBSERVED THAT THE LD. AO SHOULD HAVE ENQUIRED ABOUT THIS FACT AS TO WHY THE ASSESSEE HAD NOT TAKEN OVER THE POSSESSION OF THE FLAT EVEN AFT ER THE PAYMENT AS PER THE AGREEMENT HAD BEEN MADE FULLY. THE LD. CIT OBSERVED THAT THE AO SHOULD HAVE MADE ENQUIRIES FROM THE PLACE ABOUT THE REASONS FOR DELAY IN POSSESSION. HE ALSO OBSERVED THAT LD. AO WAS ALSO REQUIRED TO MAKE ENQUIRIES FROM THE MUNICIP AL AUTHORITIES AS TO WHEN WAS THE BUILDING COMPLETED AND CLEARED FOR POSSESSION. HE FINALLY CONCLUDED THAT ONCE THE PAYMENT HAS BEEN MADE AS PER THE SCHEDULE, THE PURCHASE IS COMPLETED. SINCE THIS ASPECT WAS NOT EXAMINED BY THE LD. AO, HE TREATED THE ORDER OF THE AO AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE, WITH REGARD TO THE CLAIM OF EXEMPT ION U/S.54 OF THE ACT. 4. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD RIVAL SUBMISSIONS. AT THE OUTSET, WE FIND THAT THE LD. AR M ADE STRONG OBJECTION TO THE INCORRECT OBSERVATIONS MADE BY THE LD. CIT THAT THE LD. AO HAD NOT MADE ANY ENQUIRY WITH REGARD TO THE CLAIM OF EXEMPT ION U/S.54 OF THE ACT IN THE COURSE OF ASSESSMENT PROCEEDINGS. TO BUTTRESS THIS ARGUMENT, HE DREW OUR ATTENTI ON TO PAGE NO.2 PARA 4 OF THE ASSESSMENT ORDER WHICH READS AS UNDER: - ITA NO. 3879/MUM/2017 SHRI KISHORE AJITSHI BHATIA 5 DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS ON PERUSAL OF I & E ACCOUNT IT IS SEEN THAT THE ASSESSEE HAS SOLD ONE RESIDENTIAL FLAT AT GHATKOPAR FOR THE CONSIDERATION OF RS, 90 ,00,000/ - AND PURCHASED OFFICE PREMISES AT NEELKANTH BUSINESS PARK AT GHATKOPAR FOR TOTAL CONSIDERATION OF RS. 68,53,000 AND ALSO THE ASSESSEE HAS GOT, POSSESSION OF FLAT AT CLOVER REGENCY, GHATKOPAR (E) MUMBAI 400 077 FOR THE TOTAL CONSIDERATION O F RS 55, 04,640 WHICH WAS BOOKED BY HIM IN THE YEAR IN MARCH 2007 . THE D ETAILS OF PAYMENT WAS SHOWN AS LOAN FROM HDFC BANK AND SELF PAYMENT DURING THE LAST YEARS. THE COPY OF SALE AGREEMENT, COPY OF PURCHASE AGREEMENT OF OFFICE, RESIDENTIAL PREMISES IS FILED AND KEPT ON RECORD AND BANK ACCOUNTS STATEMENT HAS BEE N FI L ED. 5.1. HE PLEADED THAT FROM THE ABOVE, IT COULD BE SEEN THAT AO HAD MADE DUE ENQUIRIES WITH REGARD TO THE SUBJECT MENTIONED ISSUE OF CLAIM OF EXEMPT ION U/S.54 OF THE ACT. IT IS NOT IN DISPUTE THAT THE DATE OF POSSESSION OF THE NEW RESIDENTIAL FLAT WAS GIVEN TO THE ASSESSEE ON 01/05/2010 ONLY. THIS IS EVIDENT FROM THE FINAL POSSESSION LETTER DATED 01/05/2010 HANDED OVER BY THE BUILDER TO THE ASSESSEE WHICH IS PART OF RECORD. NOW A CRUCIAL QUESTION T HAT ARISES FOR OUR CONSIDERATION IS AS TO WHETHER THE ACTION OF THE LD. AO IN RECKONING THE DATE OF POSSESSION OF THE FLAT TO BE THE DATE OF PURCHASE FOR THE PURPOSE OF CLAIM OF EXEMPT ION U/S.54 OF THE ACT CAN BE CONSTRUED AS ONE OF THE POSSIBLE VIEW TAKEN BY HIM OR NOT? WE FIND THAT THIS ISSUE IS SETTLED BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. SMT. B EENA K. JAIN REPORTED IN 217 ITR 363 (BOM) WHEREIN IT WAS HELD AS UNDER: - IN THE INSTANT CASE THE NEW RESIDENTIAL HOUSE HA D BEEN PURCHASED BY THE ASSESSEE WITHIN TWO YEARS AFTER THE SALE OF THE CAPITAL ASSET WHICH RESULTED IN LONG - TERM CAPITAL GAINS. THE TRIBUNAL HAD HELD THAT THE RELEVANT DATE IN THAT CONNECTION WAS 29 - 7 - 1988 WHEN THE ASSESSEE PAID THE FULL CONSIDERATION AMO UNT ON THE FLAT BECOMING READY FOR OCCUPATION AND OBTAINED POSSESSION OF THE FLAT. THE TRIBUNAL HAD LOOKED AT THE SUBSTANCE ITA NO. 3879/MUM/2017 SHRI KISHORE AJITSHI BHATIA 6 OF THE TRANSACTION AND CAME TO THE CONCLUSION THAT THE PURCHASE WAS SUBSTANTIALLY EFFECTED WHEN THE AGREEMENT OF PURCHASE WAS CARRIE D OUT OR COMPLETED BY PAYMENT OF FULL CONSIDERATION ON 29 - 7 - 1988 AND HANDING OVER OF POSSESSION OF THE FLAT ON THE NEXT DAY. THUS, THE TRIBUNAL WAS RIGHT IN ALLOWING EXEMPTION OF RS. 11,04,423 UNDER SECTION 54F CONSIDERING THE DATE OF POSSESSION OF THE NEW RESIDENTIAL PREMISES INSTEAD OF THE DATE OF SALE ARGEEMENT AND THE DATE OF REGISTRATION. THUS, NO QUESTION OF LAW AROSE FROM THE TRIBUNAL'S ORDER. 5.2. HENCE, FROM THE AFORESAID DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT, IT COULD BE SAFELY CONCL UDED THAT THE LD. AO HAD TAKEN A POSSIBLE VIEW ON THE ABOVE MENTIONED ISSUE. IT IS NOW WELL SETTLED BY THE DECISION OF HONBLE SUPREME COURT AND VARIOUS HIGH COURTS THAT WHEN A POSSIBLE VIEW HAS BEEN TAKEN BY THE LD. AO, THE SAME CANNOT BE THE SUBJECT MATT ER OF REVISIONARY PROCEEDINGS U/S.263 OF THE ACT BY THE LD. CIT MERELY ON THE GROUND THAT THE LD. CIT IS OF A DIFFERENT OPINION ON THE VERY SAME ISSUE BY GIVING A DIFFERENT INTERPRETATION TO THE VERY SAME SET OF FACTS. 5.3. IT IS NOT IN DISPUTE THAT ASSESS EE HAD INDEED PROVIDED THE FOLLOWING DOCUMENTS BEFORE THE LD. AO IN THE COURSE OF ASSESSMENT PROCEEDINGS: - A. THE ENTIRE WORKING OF CAPITAL GAINS WHICH IS ENCLOSED IN PAGE 2 OF THE PAPER BOOK. B. THE DETAILED WRITE - UP ON THE CLAIM OF EXEMPT ION U/S.54 OF T HE ACT. C. COPY OF PURCHASE AGREEMENT DATED 29/03/2007 BETWEEN M/S. AVANTI ENTERPRISE (BUILDER) AND ASSESSEE FOR INVESTMENT IN THE NEW FLAT WHICH ARE ENCLOSED IN PAGES 26 TO 68 OF THE PAPER BOOK. D. DETAILS OF VARIOUS PAYMENTS TO BE MADE BY THE ASSESSEE AS PER THE PURCHASE AGREEMENT WHICH IS ENCLOSED IN PAGE 69 OF THE PAPER BOOK. ITA NO. 3879/MUM/2017 SHRI KISHORE AJITSHI BHATIA 7 E. DETAILS OF LOAN AVAILED FROM HDFC BANK FOR PAYMENT OF PURCHASE CONSIDERATION TOGETHER WITH THE HOME LOAN AGREEMENT WHICH ARE ENCLOSED IN PAGES 70 - 75 OF THE PAPER BOOK. F. CO PY OF FINAL POSSESSION LETTER DATED 01/05/2010 ISSUED BY M/S. AVANTI ENTERPRISE TO THE ASSESSEE WHICH ARE ENCLOSED IN PAGES 76 TO 79 OF THE PAPER BOOK. G. COPY OF SALE DEED DATED 21/04/2011 EXECUTED BY THE ASSESSEE IN FAVOUR OF THIRD PARTY WHICH ARE ENCLO SED IN PAGES 80 TO 106 OF THE PAPER BOOK. 5.4. ALL THE AFORESAID DOCUMENTS CONCLUSIVELY PROVE THAT THE ISSUE OF CLAIM OF EXEMPTION U/S.54 WAS THE SUBJECT MATTER OF THOROUGH EXAMINATION OF THE LD. AO IN THE COURSE OF ASSESSMENT PROCEEDINGS AND THE ASSESSEE HAD ALSO FURNISHED ALL THE REQUISITE DOCUMENTS BY PLACING THE DUE FACTS ON RECORD. THE LD. AR ALSO PLACED ON RECORD BEFORE US THE LETTER DATED 01/04/2010 ADDRESSED TO M/S. AVANTI ENTERPRISE WHEREIN ASSESSEE HAD STATED THAT WHILE INSPECTING THE FLAT 1073, CLOVER REGENCY, A WING BEFORE TAKING POSSESSION, HE FOUND THAT LOT OF WORK WAS STILL PENDING / FAULTY. THE SAID DEFECTS WERE SHOWN BY THE ASSESSEE TO THE SITE PERSONNEL WHO HAD ALSO AGREED TO SET RIGHT THE NECESSARY DEFICIENCIES. ACCORDINGLY, THE ASSESSEE REQUESTED THE BUILDER TO SET RIGHT ALL THOSE DEFICIENCIES AND HAND OVER THE POSSESSION OF THE FLAT BY 01/05/2010. THE LD. AR ALSO PLACED ANOTHER LETTER DATED 29/04/2010 ADDRESSED TO THE BUILDER BY THE ASSESSEE CONFIRMING THE FACT OF THE PENDING WORKS BEING DULY COMPLIED WITH BY THE BUILDER AND ALSO DIRECTING THE BUILDER TO GET THE FLAT DULY CLEANED IN ORDER TO HAND OVER THE POSSESSION OF THE SAME TO THE ASSESSEE ITA NO. 3879/MUM/2017 SHRI KISHORE AJITSHI BHATIA 8 NOT LATER THAN 01/05/2010 AND WITH A FURTHER REQUEST TO AMEND THE LETTER SHOWING POSSESSION DATE AS 01/05/2010 INSTEAD OF 01/04/2010. BASED ON THESE TWO LETTERS, THE BUILDER HAD ALSO HANDED OVER THE POSSESSION TO THE ASSESSEE ON 01/05/2010 WITH DUE ENDORSEMENT BEING MADE IN THE FINAL POSSESSION LETTER WITH REGARD TO THE DATE AS 01/05/2010 THEREON. 5.5. WE FIND THAT THE LD. CIT HAD OBSERVED IN HIS ORDER THAT THE LD. AO SHOULD HAVE MADE NECESSARY VERIFICATION AND ASCERTAIN THE REASONS FOR DELAY IN HANDING OVER OF POSSESSION OF THE FLAT TO THE ASSESSEE. THIS CRUCIAL FACT ACTS AS THE CLINCHING EVIDENCE TO DRIVE HOME THE POINT THAT THE POSSESSION OF THE FLAT WAS INDEED DELAYED BY THE BUILDER. ONE MORE CLINCHING EVIDENCE THAT GOES IN FAVOUR OF THE ASSESSEE IS THAT ASSESSEE HAD MADE PAYMENT OF FINAL TWO INSTALLMENTS ON 01/01/2010 AND 02/02/2010 IN THE SUM OF RS.2,61,440/ - AND 2,61,43 8 / - RESPECTIVELY BE CAUSE OF THE DELAY IN COMPLETION OF WORKS BY THE BUILDER. SO, THIS FACT GOES TO PROVE THAT EVEN THOUGH THE BUILDER OUGHT TO HAVE HANDED OVER THE POSSESSION TO THE ASSESSEE BY 31/12/2008 AS PER THE PURCHASE AGR EEMENT, IT CANNOT BE DENIED THAT THE BUILDER INDEED HAD HANDED OVER THE POSSESSION ONLY ON 01/05/2010 TO THE ASSESSEE. MOREOVER, THE LD. CIT ALSO HAD NOT DISPUTED THE DATE OF HANDING OVER OF POSSESSION OF THE FLAT TO THE ASSESSEE ON 01/05/2010 WHICH IS EVI DENT FROM PARA 5 OF HIS ORDER. ITA NO. 3879/MUM/2017 SHRI KISHORE AJITSHI BHATIA 9 5.6. IN THESE FACTS AND CIRCUMSTANCES, IT CAN BE SAFELY CONCLUDED THAT THE LD. AO HAD DULY EXAMINED THE DATE OF PAYMENTS AS PER THE PAYMENT SCHEDULE, PURCHASE AGREEMENTS THEREON, DATE OF HANDING OVER OF POSSESSION TO THE ASS ESSEE OF THE NEW FLAT AND CORRESPONDING CLAIM OF EXEMPTION U/S.54 OF THE ACT BY DULY GETTING SATISFIED THAT ASSESSEE HAD MADE PURCHASE OF NEW PROPERTY BEFORE ONE YEAR FROM THE DATE OF SALE OF PROPERTY AT GHATKOP A R (E). ALL THESE FACTS CONCLUSIVELY PROVE TH AT AO HAD MADE ADEQUATE ENQUIRIES IN THE COURSE OF ASSESSMENT PROCEEDINGS ITSELF BEFORE GRANTING EXEMPTION U/S.54 OF THE ACT TO THE ASSESSEE. HENCE, IT CANNOT BE SAID THAT THE LD. AO HAD NOT ENQUIRED IN THE COURSE OF ASSESSMENT PROCEEDINGS WITH REGARD TO T HE CLAIM OF EXEMPTION U/S.54 OF THE ACT. IT CANNOT ALSO BE SAID THAT AO HAS PROCEEDED BASED ON INCORRECT ASSUMPTION OF FACTS. HENCE, EVEN THE DEEMING PROVISION S BROUGHT IN EXPLANATION 2 TO SECTION 263 OF THE ACT BY THE FINANCE ACT 2015 W.E.F. 01/06/2013 AL SO WOULD NOT APPLY TO THE FACTS OF THE INSTANT CASE. IN ANY CASE, THE SAID EXPLANATION IS APPLICABLE ONLY FROM 01/06/2015 ONWARDS AND CANNOT BE APPLIED TO THE ASSESSMENT YEAR UNDER CONSIDERATION. RELIANCE IN THIS REGARD IS MADE ON THE CO - ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF NARAYAN TATU RANE VS. ITO REPORTED IN 70 TAXMANN.COM 227 (MUM BAI TRIBUNAL) DATED 06/05/2016, WHEREIN THE FINDING PORTION IS NOT REITERATED HEREIN FOR THE SAKE OF BREVITY. 5.7. WE FIND THAT THE MAIN CRUX OF THE ARGUMENT MADE BY THE LD. DR WAS THAT THE ASSESSEE HAD NOT MADE ANY PAYMENTS DURING THE RELEVANT ITA NO. 3879/MUM/2017 SHRI KISHORE AJITSHI BHATIA 10 PERIOD I.D., 21/04/2010 TO 2 0 /04/2011 AND THAT THE LAST PAYMENT FOR PURCHASE OF NEW FLAT WAS MADE ONLY ON 02/02/2010. WE FIND THAT LD. DR WAS ONLY TRYING TO ARGUE THAT THE LD. AO OUGHT TO HAVE TAKEN THE DATE OF PURCHASE AGREEMENT AS THE DATE OF PURCHASE AND NOT THE DATE OF POSSESSION. THE LD. DR ALSO ARGUED THAT THERE IS NO CLEAR FINDING BY THE LD. AO IN HIS ASSESSMENT ORDER WITH REGARD TO THE DATE OF PURCHASE MADE DURING THE RE LEVANT PERIOD. ALL THE ARGUMENTS OF THE LD. DR WERE ALREADY ADDRESSED BY US IN THE AFOREMENTIONED PARAGRAPHS. 5.8. IN VIEW OF OUR FINDINGS AND RESPECTFULLY FOLLOWING THE VARIOUS JUDICIAL PRECEDENTS RELIED UPON, WE HELD THAT THE LD. CIT ERRED IN INVOKING RE VISIONARY JURISDICTION U/S.263 OF THE ACT IN THE FACTS OF THE INSTANT CASE. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 08 / 02 /20 1 9 SD/ - ( RAM LAL NEGI ) SD/ - ( M. BALAGANESH ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 08 / 02 /201 9 KARUNA SR. PS 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//