ABRAHAM M. KADEKKETH, MUMBAI V. ASST CIT 17(1), MUMBAI

ITA 403/MUM/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8987 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 18-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Opportunity of being heard; Cost of acquisition; Valuation report
• Section: 54F; 54

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A , MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER, ITA NO.403/MUM/2017 ASSESSMENT YEAR: 2012-13 ABRAH AM M KADEKKETH, PROP. SANTOSH TRAVELS & HOTEL SANTOSH, SANTOSH ABRAHAM (LEGAL HEIR OF ABRAHAM M. KADEKKETH), 102, EMBASSY CENTRE, NARIMAN POINT, MUMBAI-400021 / VS. ACIT - 17(1), 163A MITTAL COURT, NARIMAN POINT, MUMBAI-400021 ( /ASSESSEE) ( / REVENUE) P.A. NO. AADPK8314Q / DATE OF HEARING : 19/06/2019 / DATE OF ORDER: 28/06/2019 / O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST ORDER OF THE LD CIT(A)-28, MUMBAI, DATED 18/10/2016 AND IT PERTAINS TO AY-2012 -13. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- ! / ASSESSEE BY NONE ! / REVENUE BY SMT. JOTHI LAKSMI NAYAK 2 ABRAHAM M KADEKKETH, PROP. SANTOSH TRAVELS & HOTEL SANTOSH YOUR APPELLANT BEING DISSATISFIED WITH ORDER DATED 18-10-2016 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)-28 ,MUMBAI [HE REINAFTER REFERRED TO AS CIT(A) ] PRESENTS THIS APPEAL AGAINST THE SAME ON T HE FOLLOWING AMONGST OTHER GROUNDS. 1] THE ORDER DATED 18-10-2016 PASSED U/S 250(6) OF THE INCOME TAX ACT, 1961 BY CIT (A) IS BAD IN LAW AND ILLEGAL. THE CIT (A) HAS ERRED BO TH THE FACTS AND IN LAW. IT IS SUBMITTED THAT THE ADDITIONS BE DELETED NOW. 2] THE CIT (A) HAS ERRED ON BOTH THE FACTS AND IN L AW. THE ADDITION MADE BY THE INCOME TAX OFFICER OF RS 99,00,0007- U/S 54F(PARA 5 OF THE ASSTT. ORDER) HAS NOT BEEN DELETED BY THE CIT (A). IT IS SUBMITTED THAT THE ADDITIONS BE DELETED NOW. 3] FURTHER IT IS REQUESTED NOT TO START PENALTY PRO CEEDING U/S. 271(1) (C) AND TO THE IT ACT. 1961 TILL THE CONCLUSION OF THIS APPEAL PROCEEDINGS . 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL, ENGAGED IN THE BUSINESS OF RECRUITMENT AGENCY OF SKILLED AND UNSKI LLED WORKERS, FILED HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2012-13 ON 04/03/2013, DECLARIN G TOTAL INCOME OF RS.29,63,988/-. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE H AS COMPUTED LONG TERM CAPITAL GAIN ARISING FROM SALE OF LAND AND AFTER CLAIMING EXEMPT ION UNDER SECTION 54F OF THE ACT, IN RESPECT OF AMOUNT INVESTED IN CAPITAL GAINS ACCOUNT SCHEME SHOWN NIL INCOME UNDER THE HEAD LONG TERM CAPITAL GAIN. 3. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER CALLED UPON THE ASSESSEE TO FILE NECESSARY DETAILS IN RESPECT OF SA LE OF PROPERTY AND ALSO PROOF OF PURCHASES ALONG WITH INVESTMENT IN CAPITAL GAINS ACCOUNT SCHE ME. THE ASSESSEE HAS FURNISHED PARTIAL INFORMATION AND SOUGHT MORE TIME TO FILE FURTHER IN FORMATION ON THE GROUND THAT THE RELEVANT INFORMATION NEEDS TO BE COLLECTED FROM HIS HOME TOW N KERALA. THE AO, AFTER CONSIDERING RELEVANT SUBMISSIONS OF THE ASSESSEE, RE-COMPUTED L ONG-TERM CAPITAL GAIN FROM SALE OF PROPERTY AND REJECTED EXEMPTION CLAIMED UNDER SECTI ON 54F OF THE ACT, ON THE GROUND THAT 3 ABRAHAM M KADEKKETH, PROP. SANTOSH TRAVELS & HOTEL SANTOSH THE ASSESSEE HAS FAILED TO FILE ANY EVIDENCE INCLUD ING AGREEMENT AND VALUATION REPORT DESPITE BEING GIVEN OPPORTUNITY. 4. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A). BEFORE THE LD. CIT)A) THE ASSESSEE HAS FILED WRITTEN SUBMISSIONS ON 15/06/2016 AND CLAIMED THAT CAPITAL ASSET HAS BEEN TRANSFERRED ON 07/04/2011 AND ENTIRE CONSIDERATION FROM SALE OF LAND IS INVESTED IN CAPITAL GAIN SAVIN GS ACCOUNT WITH CENTRAL BANK OF INDIA. THE CASE IS ADJOURNED TO 17/10/2016. THE ASSESSEE NEITH ER APPEARED NOR FILED ANY DETAILS ON THE DATE OF HEARING, THEREFORE, THE LD CIT(A) HAS D ISPOSED OF THE APPEAL EX-PARTE AND DISMISSED THE APPEAL FILED BY THE ASSESSEE ON THE B ASIS OF INFORMATION AVAILABLE ON RECORD BY HOLDING THAT THE ASSESSEE IS NOT EVEN BOTHERED T O ATTEND ON THE DATE OF HEARING TO FILE NECESSARY DETAILS AND TO JUSTIFY ITS CLAIM OF EXEMP TION U/S 54F OF THE ACT. HENCE, THERE IS NO REASON TO INTERFERE WITH THE FINDING OF THE LEARNED AO IN RE-COMPUTATION OF CAPITAL GAIN AFTER REJECTION OF THE EXEMPTION AND HENCE CONFIRMED ADDI TIONS MADE BY THE ASSESSING OFFICER. 5. AGGRIEVED BY THE ORDER OF THE LD CIT(A), THE ASS ESSEE IS IN APPEAL BEFORE US. 5. NONE APPEARED ON BEHALF OF THE ASSESSEE. 6. WE HAVE HEARD LD. DR AND PERUSED THE MATERIAL AV AILABLE ON RECORD. THE FACTS BORNE OUT FROM THE RECORD CLEARLY INDICATES THAT EV EN BEFORE THE LD. AO, THE ASSESSEE COULD NOT FILE COMPLETE DETAILS IN RESPECT OF AMOUNT INVE STED IN CAPITAL GAINS ACCOUNT DEPOSIT SCHEME IN ORDER TO CLAIM EXEMPTION UNDER SECTION 54 F OF THE ACT. ALTHOUGH, THE ASSESSEE SOUGHT MORE TIME TO FILE NECESSARY DETAILS, THE AO HAS COMPLETED ASSESSMENT ON THE BASIS 4 ABRAHAM M KADEKKETH, PROP. SANTOSH TRAVELS & HOTEL SANTOSH OF PARTIAL INFORMATION SUPPLIED BY THE ASSESSEE. EV EN BEFORE THE LD. CIT(A), THE ASSESSEE COULD NOT APPEAR AND FILED NECESSARY DETAILS TO JUS TIFY HIS CLAIM. ALTHOUGH, THE ASSESSEE HAS FILED DETAILS WITH REGARD TO INVESTMENT IN CAPITAL GAIN DEPOSITS SCHEME, BUT OTHER DETAILS WITH REGARD TO COST OF ACQUISITION WAS NOT FURNISHED BEF ORE THE LOWER AUTHORITIES. THEREFORE CONSIDERING THE FACTS THAT THE ASSESSEE WAS NOT GIV EN SUFFICIENT TIME TO FILE NECESSARY DETAILS BEFORE THE LOWER AUTHORITIES, WE ARE OF THE CONSIDERED VIEW THAT THIS ISSUE NEEDS TO BE SET-ASIDE TO THE FILE OF LD. AO TO CONSIDER AFRE SH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO D IRECTED TO FILE NECESSARY DETAILS BEFORE THE AO TO JUSTIFY HIS CLAIM OF EXEMPTION U/S 54F OF THE ACT, INCLUDING DETAILS OF COST OF ACQUISITION OF THE PROPERTY. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON 28/06/2019. SD/- SD/- ( SAKTIJIT DEY ) (G. MANJUNATHA) '!# /JUDICIAL MEMBER $!# / ACCOUNTANT MEMBER MUMBAI; DATED : 28/06/2019 F{X~{T F{X~{T F{X~{T F{X~{T? P.S / /. .. %'&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. !' / THE APPELLANT (RESPECTIVE ASSESSEE) 2. #$%!' / THE RESPONDENT. 3. &% &% ' ( ) / THE CIT, MUMBAI. 4. &% &% ' / CIT(A)- , MUMBAI, 5. )*+ % # , , &% % ,. , / DR, ITAT, MUMBAI 6. +/ 0 / GUARD FILE. ! / BY ORDER, /! (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI