ASST CIT CIR 2, THANE V. RAMAKANT M KADAM, BHAYANDER

ITA 4514/MUM/2014

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7562 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 29-08-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 30-06-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI
• Keywords: Opportunity of being heard
• Section: 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE S/ SHRI B.R. BASKARAN (AM) & SANDEEP GOSAIN (JM) I.T.A. NO. 4514 /MUM/20 1 4 (ASSESSMENT YEAR 20 0 8 - 0 9 ) ACIT CIRCLE - 2 ROOM NO. 27, 6 TH FLOOR, ASHAR I.T. PARK WAGLE INDUSTRIAL ESTATE, ROAD NO. 16 Z THANE(W ), PIN : 401101. VS. SHRI RAMAKANT M. KADAM NARMADA NIWAS NEAR SHANKAR TEMPLE BHYANDER WEST PIN : 401 101. PAN : AJXPK0046L ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI SANJAY SHARMA DEPARTMENT BY SHRI RAM TIWARI DATE OF HEARING 5 . 4 . 201 8 DATE OF PRONOUNCEMENT 5 . 4 . 201 8 O R D E R PER B.R. BASKARAN (AM) : - THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 28.4.2014 PASSED BY THE LEARNED CIT(A) - 2, THANE AND IT RELATES TO A.Y. 2008 - 09. GROUNDS URGED BY THE ASSE SSEE GIVE RISE TO FOLLOWING TWO ISSUES : - (A) DEDUCTION CLAIMED U/S. 54F OF THE I.T. ACT. (B) INTEREST INCOME CLAIMED U/S. 57(III) AND 36(1)(III) OF THE ACT. 2. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSEE HAD CLAIMED EXEMPTION U/S. 54F OF THE ACT AGAINST LONG TERM CAPITAL GAINS DECLARED BY IT. THE SAID CLAIM WAS DISALLOWED BY THE TAX AUTHORITIES FOR THE REASON THAT THE ASSESSEE DID NOT DEPOSIT UNUTILIZED FUND IN CAPITAL GAIN S ACCOUNT SCHEME AS PER REQUIREMENTS OF SECTION 54F(4) OF THE ACT. 3. LEARNED AR SUBMITTED THAT AN IDENTICAL ISS UE CAME BEFORE HON'BLE KERALA HIGH COURT IN THE CASE OF XAVIER J. PULIKKAL AND HONBLE KERALA HIGH COURT HAS UPHELD AN IDENTICAL VIEW TAKEN BY THE TAX AUTHORITIES. HOWEVER, WHEN THE MATTER REACHED HON'BLE SUPREME COURT OF INDIA, HON'BLE APEX COURT IN THE CASE OF XAVIER J. PULIKKAL VS. DCIT (2016) 73 TAXAMNN.COM 34 HAS SHRI RAMAKANT M. KADAM 2 RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO CONSIDER THE ISSUE DENOVA WITHOUT BEING INFLUENCED BY ANY OBSERVATIONS MADE BY HON'BLE HIGH COURT. THE LEARNED AR SUBMITTED THAT HON'BLE BOMBAY HIGH COURT HAS ALSO TAKEN THE SAME VIEW AS WAS TAKEN BY HON'BLE HIGH COURT OF KERALA. SINCE, HON'BLE SUPREME COURT HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER, THE L EARNED AR PRAYED THAT THIS ISSUE MAY ALSO BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH IN ACCORDANCE WITH THE LAW. 4. LEARNED DR STRONGLY OBJECTED TO THE PLEA OF THE ASSESSEE AND SUBMITTED THAT THE ISSUE UNDER CONSIDERATIO N IS DECIDED IN FAVOUR OF THE REVENUE BY HON'BLE HIGH COURT OF BOMBAY. WHEN IT WAS POINTED THAT HON'BLE SUPREME COURT HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER ON AN IDENTICAL ISSUE, LEARNED DR DID NOT OBJECT TO RESTORING THE ISSUE TO TH E FILE OF THE ASSESSING OFFICER. 5. AFTER HEARING RIVAL SUBMISSIONS, FOLLOWING THE DECISION RENDERED BY HON'BLE SUPREME COURT IN THE CASE OF XAVIER J. PULIKKAL (SUPRA), WE SET ASIDE THE ORDER PASSED BY THE LEARNED CIT(A) AND RESTORE THE SAME TO THE FILE O F THE ASSESSING OFFICER WITH THE DIRECTION TO EXAMINE THE ISSUE AFRESH IN ACCORDANCE WITH THE LAW AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. NEXT ISSUE RELATES TO DEDUCTION OF INTEREST CLAIMED BY THE ASSESSEE. SINCE, WE HAVE R ESTORED THE MAIN ISSUE TO THE FILE OF THE ASSESSING OFFICER, WE PREFER TO RESTORE THIS ISSUE ALSO TO HIS FILE FOR EXAMINING IT AFRESH. 7. IN THE RESULT, APPEAL FILED BY THE REVENUE IS TREATED AS ALLOWED. ORDER HAS BE E N PRONOUNCED IN THE COURT ON 5 . 4 .201 8 . SD/ - SD/ - (SANDEEP GOSAIN ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 5 / 4 / 20 1 8 SHRI RAMAKANT M. KADAM 3 COPY OF THE ORDER FORWARDE D TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( SENIOR PRIVATE SECRETARY ) PS ITAT, MUMBAI