ITO (IT) 3(1), MUMBAI V. SURINDERSINGH D.KAMBOW, MUMBAI

ITA 4854/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2675 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 22-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR
• Keywords: Tax effect
• Section: 54F; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI BEFORE SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 4854/MUM/2014 ASSESSMENT YEAR: 2009-10 THE IT O (IT) - 3 (1), ROOM NO. 114, 1 ST FLOOR, SCINDIA HOUSE, BALLARD PIER, N.M.ROAD, MUMBAI- 400 038. VS. MR. SURINDERSINGH D. KAMBOW, B/4, INDU PARK, 4, BANGAKOW, N. DATTA MARG, ANDHERI (W), MUMBAI- 400 053. PAN- AFFPK5876G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. SUMAN KUMAR RESPONDENT BY : NONE DATE OF HEARING: 04/10 /2016 DATE OF PRONOUNCEMENT: 04/10/201 6 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAI NST ORDER DATED 10/01/2014 PASSED BY THE LD CIT(APPEALS)-10, MUMBAI FOR THE AS SESSMENT YEAR 2009-10. 2. THE REVENUE HAS CHALLENGED THE IMPUGNED ORDER O N FOLLOWING EFFECTIVE GROUNDS:- 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD.CIT(A) HAS ERRED IN DIRECTING A.O TO ALLOW THE C LAIM OF THE ASSESSEE U/S 54F WITHOUT APPRECIATING THE FACT THAT ; 2 ITA NO. 4854/MUM/2014 ASSESSMENT YEAR: 2009-10 A. THE FLATS ARE STILL UNDER CONSTRUCTION AND THERE IS NO EVIDENCE TO SUGGEST THAT TWO FLATS CONSTITUTE ONE HOUSE PROPERT Y. THE LD. CIT(A) FAILED TO APPRECIATE THE RATIO LAID DOWN BY HONBLE BOMBAY HIGH COURT IN THE CASE OF K C KAUSHIK VS. PB RANE F IFTH ITO 84 CTR 62 WHEREIN IT WAS CLEARLY CONCLUDED THAT IF ASS ESSEE PURCHASES TWO HOUSE PROPERTIES, HE CAN CLAIM EXEMPT ION U/S 54 AGAINST ANY ONE OF THE PROPERTIES. B. THE BUILDER CANNOT ALTER THE BMCS APPROVED PLAN WITHOUT GETTING PRIOR PERMISSION. 3. WE NOTICE THAT THE TAX EFFECT IN THIS CASE IS B ELOW RS.10,00,000/- AND AS PER THE CBDT CIRCULAR NO. 21 OF 2015, DATED 10/12/2015, THE PRESENT APPEAL IS NOT MAINTAINABLE. LD. DEPARTMENTAL REPRESENTATIVE FAIRL Y ADMITTED THAT THE TAX EFFECT IN THIS CASE IS BELOW RS. 10 LACS. 4. WE FIND THAT THE ISSUE RAISED IN APPEAL DOES NOT FALL UNDER ANY OF THE EXCEPTIONS SPECIFIED IN PARA 8 OF THE CIRCULAR. SIN CE, IT HAS BEEN SPECIFICALLY CLARIFIED IN THE CIRCULAR AFORESAID THAT THE INSTRU CTION WILL APPLY RETROSPECTIVELY TO ALL THE PENDING APPEALS; THE PRESENT APPEAL FILE D BY THE REVENUE IS NOT MAINTAINABLE. WE, THEREFORE, DISMISS THE SAME IN LIMINE . ORDER PRONOUNCED IN THE OPEN COURT ON 04 TH OCTOBER, 2016 SD/- SD/- ( B.R.BASKARAN ) (RAM LAL NEGI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 04/10/2016 3 ITA NO. 4854/MUM/2014 ASSESSMENT YEAR: 2009-10 / 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 PRAMILA