ITO 20(2)(3), MUMBAI V. NEETA MAHENDRA PURI, MUMBAI

ITA 4051/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3122 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 12-05-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 08-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HITESH P SHAH
• Keywords: Tax effect; Revised return
• Section: 54F; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 4051/MUM/2012 ASSESSMENT YEAR: 2005-06 THE ITO - 20(2)(3), ROOM NO. 411, PIRAMAL CHAMBERS, 4 TH FLOOR, PAREL, MUMBAI- 400012. VS. SMT. NEETA MAHENDRA PURI, D- 604, JAY PALACE, YARI ROAD, VERSOVA, MUMBAI- 400 061. PAN- AAJPP5919N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. DURGA DUTT RESPONDENT BY : SHRI. HITESH P. SHAH DATE OF HEARING: 13/06/2016 DATE OF PRONOUNCEMENT: 13/06/2016 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAI NST ORDER DATED 14/03/2012 PASSED BY THE LD CIT(APPEALS)-31, MUMBAI FOR THE AS SESSMENT YEAR 2005-06. 2. THE REVENUE HAS CHALLENGED THE IMPUGNED ORDER O N FOLLOWING EFFECTIVE GROUNDS OF APPEAL:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) WAS NOT JUSTIFIED OF THE CASE AND IN LAW IN DIRECTING THE AO TO ALLOW DEDUCTION U/S 54 OF THE ACT AT RS. 12,81,2 40/- IGNORING THE FACT THAT THE ASSESSEE HAD NOT MADE ANY CLAIM U/S 5 4 OF THE ACT IN HER RETURN OF INCOME. 2 ITA NO. 4051/MUM/2012 ASSESSMENT YEAR: 2005-06 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) WAS NOT JUSTIFIED IN DIRECTING AO TO ALL OW DEDUCTION U/S 54 OF THE ACT WITHOUT APPRECIATING THAT THE ASSESSEE W AS NOT ELIGIBLE FOR DEDUCTION U/S 54F OF THE ACT AS CLAIMED BY HER IN T HE RETURN OF INCOME. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTE R ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) IS NOT JUSTIFIED IN MAKING AN OBSERVATIO N THAT THE CLAIM IS ACTUALLY U/S 54 OF THE ACT AND NOT U/S 54F OF THE A CT IGNORING THAT THIS FACT IS NOT BORNE OUT OF THE RETURN OF INCOME AND WITHOUT ANY MATERIAL ON RECORD FOR SUCH CLAIM. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) IS NOT JUSTIFIED IN THE ENTERTAINING THE CLAIM OF DEDUCTION U/S 54 OF THE ACT AT APPELLATE STAGE EVEN THOUGH TH E ASSESSEE HAD NEITHER MADE THE CLAIM OF DEDUCTION U/S 54 OF THE ACT BEFORE THE ASSESSING OFFICER NOR FILED REVISED RETURN OF INCOM E CLAIMING THE DEDUCTION (AS HELD IN THE CASE OF ADDL. CIT VS. GUR JARGRAVURES P. LTD. (SC) 111 ITR 1). 5. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUNDS BE RESERVED AND THAT OF THE ASSESSING OFFIC ER BE RESTORED. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TAX EFFECT IN THIS CASE IS BELOW RS.10,00,000/- HENCE, AS PER THE CBDT CIRCULAR NO. 21 OF 2015, DATED 10/12/2015, THE PRESENT APPEAL IS NOT M AINTAINABLE. 4. THE LD. DR FAIRLY ADMITTED THAT THE TAX EFFECT I N DEPARTMENTS APPEAL IS BELOW RS.10 LAKHS, WE FIND THAT THE ISSUE RAISED IN APPEAL DOES NOT FALL UNDER ANY OF THE EXCEPTIONS SPECIFIED IN PARA 8 OF THE C IRCULAR. SINCE, IT HAS BEEN 3 ITA NO. 4051/MUM/2012 ASSESSMENT YEAR: 2005-06 SPECIFICALLY CLARIFIED IN THE CIRCULAR AFORESAID TH AT THE INSTRUCTION WILL APPLY RETROSPECTIVELY TO ALL THE PENDING APPEALS; THE PRE SENT APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. WE, THEREFORE, DISMIS S THE SAME IN LIMINE . ORDER PRONOUNCED IN THE OPEN COUR T ON 13 TH JUNE, 2016 SD/- SD/- ( B.R.BASKARAN ) (RAM LAL NEGI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 13/06/2016 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' , $ !'% , / DR, ITAT, MUMBAI 6. &' ( / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA