ITO 13(2)(2), MUMBAI V. SMT MAYA BHARAT PATEL, MUMBAI

ITA 4231/MUM/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5572 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 18-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J SARAVANAN
• Assessee Lawyers: JAYANT SHAH
• Keywords: Cost of acquisition; Tax effect
• Section: 201; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D , MUMBAI BEFORE S HRI M. BALAGANESH (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 4231/MUM/2018 ASSESSMENT Y EAR: 2013 - 2014 THE ITO - 13(2)(2), ROOM NO. 147, 1 ST FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 20 VS. SMT. MAYA BHARAT PATEL, C - 52/53, 3 RD FLOOR, PRAVASI INDUSTRIAL ESTATE, OFF ARREY ROAD, GOREGAON (E), MUMBAI - 400063 PAN: AFFPP5526A (APPELLANT) (RESPONDENT) REVENUE BY : SHRI J. SARAVANAN ( CIT DR) ASSESSEE BY : SHRI JAYANT SHAH ( A R ) DATE OF HEARING: 29 /08 /201 9 DATE OF PRONOUNCEMENT: 29 / 0 8 /201 9 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER DATED 13.03.2018 PASSED BY THE COMMISSION ER OF INCOME TAX (APPEALS) - 21 (FOR SHORT THE CIT(A) , MUMBAI, FOR THE ASSESSMENT YEAR 2013 - 14 , WHEREBY THE LD. CIT(A) HAS PARTLY ALLOWED T HE APPEAL FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER PASSED U/S 143 (3) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT). 2 . AGGRIEVED BY THE ORDER OF LD. CIT (APPEAL S ), THE REVENUE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING EFFECTIVE GROUNDS : - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT (A) HAS ERRED IN DIRECTING THE ASSESS ING OFFICER TO ALLOW THE COST OF ACQUISITION OF RS. 22,16,627/ - OF THE PURPOSE OF COMPUTATION OF CAPITAL GAIN AS AGAINST THE COST OF ACQUISITION OF RS. 12,21,170/ - ADOPTED BY THE ASSESSING OFFICER AND THEREBY ALLOWING THE INDEX COST OF ACQUISITION OF RS. 5 3,54,169/ - OFFERED BY THE ASSESSEE. 2 ITA NO. 4231 / MUM/2018 ASSESSMENT YEAR: 2013 - 1 4 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT (A) HAS ERRED IN APPRECIATING THE FACT THAT THE ASSESSEE HAS FAILED TO EXPLAIN THE REASON FOR PAYMENT OF ADDITIONAL STAMP DUTY AFTER 12 YEARS AND FAILED TO PRODU CE BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT (A) HAS ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW THE DEDUCTION U/S 54 AMOUNTING TO RS. 1,10,07,532/ - . 4. ON THE FACTS AND IN TH E CIRCUMSTANCES OF THE CASE, LD. CIT (A) HAS ERRED IN APPRECIATING THE FACT THAT THE ASSESSEE HAS FAILED TO PROVE THE INVESTMENT IN A NEW CONSTRUCTION OF FLAT WAS MADE WITHIN THE STATUTORY TIME LIMIT OF 3 YEARS I.E. 17.07.2015 FROM THE DATE OF SALE OF ORIG INAL ASSET ON 18.07.2012. FURTHER, LD. CIT (A) HAS FAILED TO APPRECIATE THE FACTS THAT THE ASSESSEE IS NOT ELIGIBLE TO GET EXEMPTION U/S 54 SINCE THE ASSESSEE AMENDED ITS PREFERENCE OF PURCHASE OF FLAT FROM FLAT NO. C1001 TO FLAT B 902 IN THE YEAR 2015 I.E . AFTER THE EXPIRY OF TIME LIMIT OF 2 YEARS AS SPECIFIED U/S 54 OF THE I.T. ACT. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE RESPONDENT/ASSESSEE POINTED OUT THAT THE TAX EFFECT OF THE RELIEF GRA NTED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS BELOW RS. 5 0 LACS AND AS PER CIRCULAR NO.17 OF 2019 DATED 08.08.2019 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT) , DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA , THE CBDT HAS REVISED THE MONETARY LIMIT FOR FILING APPEAL S BEFORE THE ITAT FROM THE EXISTING LIMIT OF RS. 20 LACS TO RS. 50 LACS . IN THE LIGHT OF THE AFORESAID FACTS, THE LD. COUNSEL SUBMITTED THAT THIS APPEAL IS NOT MAINTAINABLE AND LIABLE TO BE DISMISSED. 4. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FAIRLY ADMITTED THAT TH IS A PPEAL IS NOT MAINTAINABLE IN LIGHT OF THE AFORESAID CIRCULAR ISSUED BY THE CBDT, HOWEVER, SUBMITTED THAT THE DEPARTMENT MAY BE GIVEN LIBERTY TO FILE 3 ITA NO. 4231 / MUM/2018 ASSESSMENT YEAR: 2013 - 1 4 MISCELLANEOUS APPLICATION IN CASE IT IS FOUND THAT THE CASE FALLS UNDER ANY OF THE EXCEPTIONS PROVIDED IN T HE CIRCULAR. 5. WE HAVE GONE THROUGH THE IMPUGNED ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND THE GROUNDS OF APPEALS. AS POINTED OUT BY THE LD. COUNSEL, THE TAX EFFEC T IN THIS APPEAL IS LESS THAN RS. 5 0 LACS. ACCORDINGLY, W E DISMISS T HE AFORESAID APPEAL FILED BY THE REVENUE AS NOT MAINTAINABLE/WITHDRAWN . HOWEVER, IN CASE, IT IS FOUND THAT THE CASE FALLS UNDER ANY OF THE EXCEPTIONS PROVIDED IN THE CIRCULAR, THE REVENUE IS AT LIBERTY TO FILE MISCELLANEOUS APPLICATION FOR RECALLING THE OR DER OF THE TRIBUNAL. IN THE RESULT, APPEAL FILED BY THE REVENUE FOR ASSESSMENT YEAR 2013 - 2014 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH AUGUST , 2019 . SD/ - SD/ - ( M. BALAGANESH ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 29 / 08 / 201 9 ALINDRA, PS / 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