KUSUM MANOHAR AHUJA, MUMBAI V. ITO WD 19()(1), MUMBAI

ITA 5565/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 2049 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 03-09-2014
• Court: TRIBUNAL
• Department Lawyers: A RAMACHANDRAN
• Assessee Lawyers: V P KOTHARI
• Section: 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI RAVISH SOOD , JM ITA NO. 5565 / MUM/20 1 4 ( ASSESSMENT YEAR : 2008 - 09 ) M/S. KUSUM MANOHAR AHUJA 203, PRAHLAD PREMISES CO - OP HSG. SOCIETY, LINKING ROAD, SANTACRUZ (W), MUMBAI 400 054 VS. ITO WARD 19(1)(1), MUMBAI PAN/GIR NO. AEEPR6515B APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI V.P. KOTHARI REVENUE BY SHRI A. RAMACHANDRAN DATE OF HEARING 2 7 / 1 0/2016 DATE OF PRONOUNCEME NT 04/11/2016 / O R D E R PER R.C.SHARMA (A.M) : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) FOR THE ASSESSMENT YEAR 2008 - 2009, IN THE MATTER OF IMPOSITION OF PENALTY U/S. 271(1)( C ) OF THE IT ACT. 2. RIVAL CONTENTIONS HA VE BEEN HEARD AND RECORD PERUSED. 3. IN THIS CASE, ASSESSMENT FOR A.Y.2008 - 09 WAS COMPLETED U/S.143(3) OF THE I.T.ACT ON 03.12.2010 ASSESSING TOTAL INCOME AT RS.97,08,700/ - AS AGAINST INCOME RETURNED OF RS.2,37,162/ - . WHILE COMPLETING THE ASSESSMENT AN ADDIT ION OF RS.94,59,413/ - WAS MADE ON A/C OF LTCG ARISEN ON SALE OF IMMOVABLE PROPERTY. SMT. KUSUM MANOHAR AHUJA 2 4. THE SAID ADDITION WAS CONFIRMED BY THE CIT(A), THEREAFTER, AO LEVIED PENALTY FOR THE SAID ADDITION U/S. 271(1)(C) OF THE IT ACT. AT THE OUTSET, LEARNED AR PLACED ON RECO RD THE ORDER OF THE TRIBUNAL DATED 13/01/2016 IN ITA NO.4194/MUM/2012 FOR THE ASSESSMENT YEAR 2008 - 09 WHEREIN QUANTUM OF ADDITION OF RS.94,59,413/ - WAS SET ASIDE BY THE TRIBUNAL TO THE FILE OF AO FOR DECIDING AFRESH AFTER HAVING THE FOLLOWING OBSERVATION: - FROM THE PERUSAL OF THE IMPUGNED ORDER, IT IS SEEN THAT CIT(A ) THOUGH HAS NOTED FROM THE FACTS AND EVEN INCORPORATED THE CONTENTION OF THE AO AS WELL AS SUBMISSION OF THE ASSESSEE, BUT HAS NOT GIVEN PROPER FINDING AS TO WHY THE ASSESSEE'S CONTENTION CANN OT BE ACCEPTED. THE RELEVANT OBSERVATION AND FINDING OF THE CIT(A) IS AS UNDER: 'IN VIEW OF THE ABOVE 1 FIND CONSIDERABLE FORCE IN THE ARGUMENTS OF THE AO THAT THE APPELLANT HAS NOT PURCHASED THE PROPERTY WITHIN A PERIOD F ONE YEAR FROM THE DATE OF SALE O F THE PROPERTY. THEREFORE, THE AO IS J USTIFIED IN HOLDING THAT THE APPELLANT HAS NOT FULFILLED THE CONDITIONS FOR ALLOWING EXEMPTION U /S 54F OF THE I. T. ACT AND CONSEQUENTLY SHE IS NOT ENTITLED FOR EXAMINATION U/S 54F OF THE 1. T. ACT. THIS BEING SO THE A CTION OF THE AO OF DISALLOWING EXEMPTION U/ S 54F IN THE CASE OF THE APPELLANT IS ACCORDINGLY CONFIRMED. THIS GROUND OF APPEAL IS DISMISSED'. THE ABOVE FINDING OF THE CIT(AI SHOWS THAT THE ISSUE HAS NOT EN EXAMINED PROPERLY ON FACTS. AFTER HEARING BOTH THE PARTIES, WE A RE OF THE OPINION THAT, THIS MATTER SHOULD GO BACK TO THE FILE OF THE AO TO CONSIDER THE ENTIRE CONTENTION RAISED BY THE ASSESSEE AS WELL AS THE MATERIAL PLACED ON RECORD AND DECIDE, WHETHER THE ASSESSEE'S CLAIM WITH REGARD TO EXEMPTION U / S 54F IN THE INVESTMENT MADE AT GODREJ PROPERTY ARE WITHIN TIME LIMIT OR NOT. THESE ARE PURELY FACTUAL ASSERTION MADE BY THE ASSESSEE THEREFORE, IT NEEDS PROPER EXAMINATION AT THE LEVEL OF THE A O . ACCORDINGLY, WE SET ASIDE THIS MATTER TO THE FILE OF THE A O TO BE DECIDED AFRESH AFTER GIVING DUE AND EFFECTIVE OPPORTUNITY TO THE ASSESSEE AND AFTER CONSIDERING THE MATERIAL ON RECORD. ACCORDINGLY, GROUND NO. 1 AS RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4. IT IS CLEAR FROM THE ABOVE ORDER OF THE TRIBUNAL THAT QUANTUM ADDITION WITH RESPECT TO WHICH PENALTY HAS BEEN IMPOSED BY AO U/S. 271(1)(C) HAVE ALREADY BEEN RESTORED BY THE TRIBUNAL TO THE FILE OF THE AO FOR DECIDING AFRESH AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. RESPECTFULLY SMT. KUSUM MANOHAR AHUJA 3 FOLLOWING THE ORDER OF THE TRIBUNAL, WE SET ASIDE THE PENALTY AND DIRECT THE AO TO DO IT AFRESH AFTER DECIDING QUANTUM APPEAL AS PER THE DIRECTION GIVEN IN ITS ORDER DATED 13/01/2016. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. O RD ER PRONOUNCED IN THE OPEN COURT ON THIS 04 / 11 /2016 S D/ - ( RAVISH SOOD ) S D/ - ( R.C.SHARMA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 04/11 /201 6 KARUNA SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//