SMT BHAVNA CHANDRAKANT CHHEDA, MUMBAI V. ITO WD 1(3), THANE

ITA 4169/MUM/2007

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 8052 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 1998-1999
• Appeal Filed On: 01-06-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARIGOVIND SINGH
• Assessee Lawyers: AJIT SHETTY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SMT.ASHA VIJAYARAGHAVA N, JM ITA NO.4169/MUM/2007 : ASST.YEAR 1998-99 SMT.BHAVNA CHANDRAKANT CHHEDA C/O.M/S.MOHANLAL JAIN & CO., 10 CHARTERED HOUSE, GROUND F.OOR DR.C.H.STREET, MARINE LINES MUMBAI 400 002. PAN :AAHPC0949B. VS. THE INCOME TAX OFFICER WARD 1(3) THANE. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AJIT SHETTY RESPONDENT BY : SHRI HARI GOVIND SINGH O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THE CIT(A) ON 09.04.2007 IN RELATION TO ASSESSMENT YEAR 1998-99. IT IS A RECALLED MATTER INASMUCH AS THE EARLIER EX PARTE ORDER PASSED BY THE TRIBUNAL WAS RECALLED VIDE ITS LATER ORDER DATED 14.01.2011 IN MA NO.639/MUM/2010. 2. THE ONLY ISSUE IN THIS APPEAL IS AGAINST THE CON FIRMATION OF ADDITION OF RS.9,43,205 ON ACCOUNT OF CAPITAL GAIN ALLEGEDLY AR ISING IN ASSESSMENT YEAR 1998- 99. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT T HE A.O., DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN THE CASE OF SMT.VANITA K. SATRA FOR ASSESSMENT YEAR 2001-2002, WAS FOUND THAT THE PRESENT ASSESSEE ALO NG WITH SMT.VANITA K.SATRA JOINTLY OWNED A ROW HOUSE NO.1 IN SONALI HOUSING CO MPLEX, PANCHPAKHADI, THANE. AN AGREEMENT FOR SALE OF THE SAID ROW HOUSE WAS ENTERED INTO BETWEEN THE CO-OWNERS. SMT.VANITA K.SATRA CLAIMED THAT DUE TO S OME DISPUTE WITH THE PURCHASER, SALE PROCEEDS WERE TO BE RECEIVED IN INS TALLMENTS AS PER CONSENT TERMS AND HENCE THE SALE WAS COMPLETED AFTER RECEIPT OF L AST INSTALLMENT ON 31.03.2001. ON THE BASIS OF ASSESSMENT MADE IN THE CASE OF SMT. VANITA K.SATRA, THE ASSESSING OFFICER REOPENED THE ASSESSMENT OF THE PRESENT ASSE SSEE AND CAME TO HOLD THAT THE ITA NO.4169/MUM/2007 SMT.BHAVNA CHANDRAKANT CHHEDA. 2 CAPITAL GAIN WAS CHARGEABLE TO TAX IN THIS YEAR. NO RELIEF WAS ALLOWED IN THE FIRST APPEAL. 3. AT THE VERY OUTSET THE LEARNED COUNSEL FOR THE A SSESSEE PLACED ON RECORD A COPY OF THE ORDER PASSED BY THE TRIBUNAL IN THE CAS E OF SMT.VANITA K.SATRA IN ITA NO.533/MUM/2006. VIDE ORDER DATED 13.08.2010 THE T RIBUNAL HAS HELD IN PARA 10 THAT THERE WAS NO TRANSFER WITHIN THE MEANING OF SE CTION 47 IN ASSESSMENT YEAR 1998-99. RESULTANTLY THE CAPITAL GAIN ASSESSED BY T HE A.O. IN SUCH YEAR WAS HELD TO BE NOT CHARGEABLE. THE LEARNED A.R. CONTENDED THAT THE FACTS AND CIRCUMSTANCES OF THE PRESENT APPEAL ARE SIMILAR TO THOSE ALREADY CON SIDERED AND DECIDED BY THE TRIBUNAL. THE LEARNED DEPARTMENTAL REPRESENTATIVE F AIRLY CONCEDED THE FACTUAL POSITION. 4. AFTER CONSIDERING THE RIVAL BUT COMMON SUBMISSIO NS AND PERUSING THE RELEVANT MATERIAL ON RECORD IT IS NOTED THAT THE PR ESENT ASSESSMENT IS BASED ON THE VIEW TAKEN BY THE ASSESSING OFFICER IN THE CASE OF SMT.VANITA K.SATRA. SINCE THE TRIBUNAL IN THE CASE OF SMT.VANITA K.SATRA HAS HELD THAT CAPITAL GAIN IS NOT CHARGEABLE IN ASSESSMENT YEAR 1998-99, THE RESULTAN T ACTION TAKEN IN THE CASE OF THE PRESENT ASSESSEE ALSO DESERVES TO BE SET ASIDE. WE ORDER ACCORDINGLY AND MODIFY THE IMPUGNED ORDER TO THIS EXTENT. 5. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED ON THIS 16 TH DAY OF MARCH, 2011 . SD/- SD/- (ASHA VIJAYARAGHAVAN) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 16 TH MARCH, 2011. DEVDAS* ITA NO.4169/MUM/2007 SMT.BHAVNA CHANDRAKANT CHHEDA. 3 COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) II, THANE. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.