ITO 25(2)(4), MUMBAI V. VIBHUTI KIRIKUMAR SODHA, MUMBAI

ITA 4217/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3579 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 8 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 09-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 18-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VIRAJ M SHAH
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUM BAI BEFORE SHRI JASON P. BOAZ, AM AND SHRI SANDEEP GOSA IN, JM ./ I.T.A. NO.4217/MUM/2012 ( / ASSESSMENT YEAR:2008-09) SHRI HEMANT GAIKWAD, INCOME TAX OFFICER 25(2)(4), MUMBAI R.NO.105, C-11, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI-400 051.. / VS. SHRI VIBHUTI K. SODHA, 701, SHANKAR ASHISH CHS, R.C. PATEL ROAD, OFF CHANDAVARKAR LANE, BORIVALI (W), MUMBAI-400 092. ./ ./PAN/GIR NO. ABDPS 8135J ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI LOVISH KUMAR / RESPONDENT BY : SHRI VIRAJ M. SHAH / DATE OF HEARING : 02/03/2016 !'# / DATE OF PRONOUNCEMENT : 02/03/2016 $% / O R D E R PER SANDEEP GOSAIN, J. M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 02.03.2012 OF COMMISSIONER OF INCOME TAX (APPEALS)-35, MUMBAI (HE REINAFTER CALLED AS THE CIT(A) ) FOR ASSESSMENT YEAR 2008-09. 2 ITA NO.4217/MUM/2012 (A.Y.2008-09) ITO VS VIBHUTI K. SODHA 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND LA W THE LD. CIT(A) ERRED IN DIRECTING THE ADDITIONS MADE BY THE A.O. AND ALL OWING THE ASSESSEE TO OFFER CAPITAL GAIN IN THE AY 2009-10 WITHOUT APPREC IATING THE FACT THAT THE CAPITAL GAIN SHOULD BE OFFERED IN THE YEAR IN WHICH THE AGREEMENT WAS MADE AND REGISTERED AND WHEN THE FULL SALE CONSIDERATION HAS BEEN RECEIVED BY THE ASSESSEE IN THE YEAR 2007-08 I.E. AY 2008-09. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND LAW THE LD. CIT(A) ERRED IN DIRECTING THE ADDITIONS AND ALLOWING CLAIM OF EXEMP TION U/S.54 OF THE I.T.ACT,1961, IN THE AY 2009-10 WITHOUT APPRECIATIN G THE FACT THAT THE ASSESSEE HAS PURCHASED THE NEW FLAT MORE THAN ONE Y EAR BEFORE THE DATE OF TRANSFER TOOK PLACE OF THE OLD FLAT. 2. AT THE OUTSET THE LD. AR POINTED OUT THAT THE TA X EFFECT IN THIS APPEAL IS BELOW RS.10.00 LAKHS AND FURTHER SUBMITTED THAT IN VIEW O F THE CBDT CIRCULAR NO.21/2015, DATED 10.12.2015 BROUGHT OUT BY THE CENTRAL BOARD OF DIRECT TAXES, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE , GOVERN MENT OF INDIA, THE APPEAL WAS NOT MAINTAINABLE AND BE DISMISSED. THE LD. DR A LSO AGREED TO THE SUBMISSION OF THE LD. AR. 3 ITA NO.4217/MUM/2012 (A.Y.2008-09) ITO VS VIBHUTI K. SODHA 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND FROM THE RECORDS BEFORE US THAT THE TAX INV OLVED IN THE DISPUTED ISSUE IS BELOW RS.10 LACS AND THEREFORE, IN VIEW OF THE CIRC ULAR NO 21/2015 DATED 10 TH DECEMBER, 2015 NO APPEALS SHOULD BE FILED BY THE RE VENUE BEFORE THE TRIBUNAL WHICH HAS TAX EFFECT OF RS. 10.00 LACS OR LESS AND THIS CIRCULAR IS ALSO APPLICABLE RETROSPECTIVELY TO ALL PENDING APPEALS. THE RELEVAN T EXTRACT THE SAID CBDT CIRCULAR (SUPRA) IS AS UNDER:- THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PEN DING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/TRIBUNALS. PENDI NG APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRA WN/NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE IN STRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 4. CONSIDERING THE ABOVE, THE APPEAL FILED BY THE R EVENUE, IS THEREFORE DISMISSED. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2ND MARCH, 2016 SD/- SD/- (JASON P. BOAZ) (SAN DEEP GOSAIN) $ / ACCOUNTANT MEMBER &' $ / JUDICIAL MEMBER ( ) MUMBAI; *$ DATED :02.03.2016 PS. ASHWINI 4 ITA NO.4217/MUM/2012 (A.Y.2008-09) ITO VS VIBHUTI K. SODHA / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT - CONCERNED 5. ./0 ''12 , 12# , ( ) / DR, ITAT, MUMBAI 6. 045 6 / GUARD FILE / BY ORDER, / !'# (DY./ASSTT. REGISTRAR) #$ %, ( ) / ITAT, MUMBAI.