ITO (IT)- 4(3)(1), MUMBAI V. MEERA PANDIT VENKATRAMAN, MUMBAI

ITA 5702/MUM/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6048 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 05-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R K AG RA WAL
• Keywords: Tax effect; Capital Gains
• Section: 5(2); 201; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D , MUMBAI BEFORE SHRI C.N. PRASAD , HONBLE JUDICIAL MEMBER AND SHRI N.K. PRADHAN , HONBLE ACCOUNTANT MEMBER ITA NO . 5702 /MUM/201 8 ( A.Y: 201 3 - 14) I NCOME TAX OFFICER (IT) 4(3)(1) R.NO. 1625, 16 TH FLOOR A IR INDIA BUILDING, NARIMAN POINT MUMBAI 400 021 V. SMT MEERA VENKATRAMAN C/O. JAINA THANAWALA CHARTERED ACCOUNTANT 11, PRITAM , 11 TH ROAD, KHAR (W) MUMBAI 400 052 PAN NO: AOAPV9606B (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R.K. AG RA WAL DEPARTMENT BY : SMT JOTHILAKSHMI NAYAK DATE OF HEARING : 24.09.2019 DATE OF PRONOUNCEMENT : 24 .09.2019 O R D E R PER C.N. PRASAD (JM) THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 58 , MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] IN APPEAL NO. CIT(A) - 58, MUMBAI/10579/2017 - 18 DATED 17.07. 201 8 FOR THE ASSESSMENT YEAR 201 3 - 14 . 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL : - 2 ITA NO. 5702/MUM/2018 (A.Y: 2013 - 14) SMT MEERA VENKATRAMAN 1. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN HOLDING THAT THE INVESTMENT IN A NEW ASSET IN THE USA IS ENTITLED FOR BENEFIT UNDER SECTION 54 OF THE IT ACT IN RELATION TO CAPITAL GAINS ARISING IN INDIA TO THE ASSESSEE?' 2. 'WHETHER ON THE FACTS AND IN TH E CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN FAILING TO APPRECIATE THAT THE CHARGING SECTION OF THE ACT IN FORM OF SECTION 4 DOES NOT CONTAIN THE WORDS 'IN INDIA' AND NEITHER DO THE CHARGING SECTIONS FOR DIFFERENT 'HEADS OF INCOME' IN FO RM OF SECTIONS 15, 22, 28, 45 AND 56 AND IN CASE OF NON - RESIDENTS, THE WORDS 'IN INDIA' IS READ INTO THEM BY WAY OF SECTION 5(2) OF THE ACT?' 3. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN FAILING TO APPRE CIATE THAT SECTION 54 IS A PART OF THE CHARGING SECTION 45 IN CASE OF CAPITAL GAINS AND THUS QUALIFIES THE CHARGE ITSELF AND HENCE CANNOT IMPLY EXPLICITLY THE WORDS 'IN INDIA' AS IT APPLIES TO BOTH RESIDENTS AND NON - RESIDENTS?' 4. 'WHETHER ON THE FACTS AN D IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN FAILING TO APPRECIATE THAT BENEFIT UNDER SECTION 54 IS NOT A DEDUCTION BUT A PROVISION QUALIFYING THE CHARGE ITSELF WHEREAS ALL THE SECTIONS PROVIDING FOR DEDUCTIONS UNDER DIFFERENT HEA DS OF INCOME ARE SEPARATE FROM THE RESPECTIVE CHARGING SECTIONS?' 5. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN NOT APPRECIATING THE TEMPORAL CONDITIONS LAID DOWN IN SECTION 54(1)(II) ON TRANSFER OF THE N EW ASSET WHEN APPLIED TO THAT ASSET BEING SITUATED OUTSIDE INDIA WOULD LEAD TO SECTION 45 OF THE ACT HAVING TAXING JURISDICTION OVER INCOME ARISING OUTSIDE INDIA IN THE CASE OF THE NON - RESIDENT RESULTING IN A CONTRADICTION VIS - A - VIS SECTION 5(2) OF THE ACT ?' 6. 'WHETHER ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CASE AND IN LAW, LD. CIT(A) HAS ERRED IN NOT APPRECIATING THAT THE AMENDMENT BROUGHT IN BY THE FINANCE ACT, 2014 IN SECTION 54 OF THE IT ACT, 1961 IS ONLY CLARIFICATORY IN NATURE IN CASE OF RESIDEN TS, AS IN CASE OF NON - RESIDENTS THE WORDS 'IN INDIA' WERE ALREADY INTRINSICALLY OP ERATING BY WAY OF PROVISIONS OF SECTION 5(2) OF THE ACT?' 3. AT THE TIME OF HEARING, AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT TAX EFFECT ON THE ISSUE IN THE PRESENT APPEAL IS .43,90,140/ WHICH IS BELOW . 5 0 LAC S AND IN VIEW OF THE CBDT CIRCULAR N O . 17/2019 DATED 08.08.2019 IN F.NO.279/MISC.142/2007 - ITJ (PT) , THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE. 3 ITA NO. 5702/MUM/2018 (A.Y: 2013 - 14) SMT MEERA VENKATRAMAN 4. DEPARTMENTAL REPRESENTATIVE ALSO AGREED WITH THE ABOVE SUBMISSION OF THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE . 5. WE HAVE HEARD THE SUBMISSIONS AND PERUSED THE GROUNDS OF APPEAL IN THIS APPEAL. WE FIND THAT THE TAX EFFECT IN THIS APPEAL IS LESS THAN .5 0 LAKHS AND T HEREFORE THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE ON ACCOUNT OF LOW TAX EFFECT IN VIEW OF THE CBDT CIRCULAR NO. 17/2019 DATED 08.08.2019. HENCE TH IS APPEAL IS DISMISSED. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 24 TH SEPTEMBER, 2019 . SD/ - SD/ - ( N.K. PRADHAN ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 24/ 09/2019 GIRIDHAR, SR.PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER, (ASSTT. REGISTRAR) ITAT, MUM