ITO 25(3)(2), MUMBAI V. ISHWARIDEV I DUDEJA, MUMBAI

ITA 4319/MUM/2010

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2388 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-11-2015
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: I
• Next Hearing Date: 23-11-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 26-05-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Keywords: Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (AM) AND AMIT SHUKLA, (JM) . . , , ./ I.T .A. NO. 4319 / MUM/ 2010 ( / ASSESSMENT YEAR : 2006 - 07 ) INCOME TAX OFFICER - 25( 3 )(2), C - 11, ROOM NO.306, PRATYAKSHAKAR BHAVAN, BANDRA - KURLA COMPLEX, BANDRA (E), MUMBAI - 400051. / VS. SMT.ISHWARIDEVI DUDEJA, 405, NEELAM SOC, B WING, 4 TH FLOOR , PLOT NO.242, NEAR APNA BAZAR, KANDIVALI (W), MUMBAI - 400067 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN : AHWPD5631R / APPELLANT BY M R.NEIL PHILIP . / RESPONDENT BY NONE . / DATE OF HEARING : 23.11. 201 5 / DATE OF PRONOUNCEMENT : 23.11 . 201 5 / O R D E R PER B.R. BASKARAN (AM) THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATE D 15.3.2010 PASSED BY THE LD.CIT(A) - 35, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2006 - 07. 2. T HE REVENUE IS AGGRIEVED BY THE DECISION OF THE LD. CIT(A) IN HOLDING THAT THE PROFIT ARISING ON SALE OF LAND IS CHARGEABLE UNDER THE HEAD CAPITAL GAINS AS AGAINST THE HEAD INCOME FROM OTHER SOURCES . ITA NO. 4319/ MUM/ 2010 2 3. NONE APPEARED ON BEHALF OF THE ASSESSEE EVEN THOUGH THE NOTICE OF HEARING WERE SERVED ON THE ASSESSEE ON SEVERAL OCCASIONS BY RPAD. HENCE, WE PROCEED TO DISPOSE OF THE APPEAL EX - PARTE, WITHOUT THE PRESEN CE OF ASSESSEE. 4 . WE HEARD THE LD.DR AND PERUSED THE RECORD. THE ASSESSEE HAS RECEIVED A SUM OF RS.26 LAKHS AS HIS SHARE ON SALE OF LAND , WHICH WAS STANDING IN THE NAME OF M/S FAIRTEX SYNTHETICS PVT LTD. THE AMOUNT OF RS.26 LAKHS HAS BEEN CLAIMED AS CAPI TAL GAIN AND ACCORDINGLY THE ASSESSEE ALSO CLAIMED DEDUCTION U/S 54EC OF THE INCOME TAX ACT, 1961. THE AO NOTICED THAT THE LAND WAS STANDING IN THE NAME OF THE COMPANY CITED ABOVE AND HENCE, HE ASSESSED THE AMOUNT AS INCOME FROM OTHER SOURCES AND ALSO DIS ALLOWED THE CLAIM OF DEDUCTION U /S 54EC OF THE ACT. 5 . IN THE APPELLATE PROCEEDINGS, THE LD. CIT(A) ALLOWED THE CLAIM OF THE ASSE SSEE BY PLACING RELIANCE ON A FAMILY SETTLEMENT AGREEMENT. 6 . THE LD. DR SUBMITTED THAT THE LAND WAS STANDING IN THE NAME OF THE COMPANY REFERRED ABOVE AND THE SAME WAS TRANSFERRED BY T HE COMPANY ONLY AND HENCE, FAMILY SETTLEMENT REACHED BETWEEN THE ASSESSEE AND OTHER CO - OWNERS NEED NOT BE RECOGNISED . SINCE IN THE EYES OF LAW THE COMPANY ALONE SHALL BE CONSIDERED AS OWNER OF T HE PROPERTY. 7 . A PERUSAL OF T HE ORDER OF LD. CIT(A) SHOWS THAT HE HAS NOT EXAMINED THE ABOVE SAID LEGAL POSITION , BUT CARRIED AWAY BY THE ENTRIES PASSED IN THE BOOKS OF ACCOUNT ON THE COMPANY REFERRED ABOVE. IT APPEARS THAT THE LD. CIT(A) HAS NOT EXAMIN ED THE PURCHASE DEED AS WELL AS SALE DEED BEFORE ARRIVING AT HIS CONCLUSION. HENCE, WE ARE OF THE VIEW THAT THE LD. CIT(A) HAS RENDERED HIS DECISION WITHOUT PROPERLY APPRECIATI N G THE FACTS. HENCE , ITA NO. 4319/ MUM/ 2010 3 IN OUR VIEW, THIS ISSUE REQUIRES FRESH EXAMINATION AT HIS END. ACCORDINGLY, WE SET ASIDE HIS ORDER AND RESTORE THE MATTER TO THIS FILE FOR FRESH CONSIDERATION AFTER PROVIDING NECESSARY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS TREATED AS PARTLY ALLO WED FOR STATISTICAL PURPOSES. PRONOUNCED ACCORDINGLY ON 23RD NOV, 201 5. 23 RD NOV , 2015 SD SD ( / AMIT SHUKLA ) ( . . / B.R. BASKARAN) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI: 23 RD NOV 201 5 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCE RNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI