Smt. Shyamali Ray, Kolkata V. ITO, Ward 45(4), Kolkata, Kolkata

ITA 589/KOL/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9072 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 27-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDER
• Assessee Lawyers: MAMOJ DUTTA CA
• Keywords: Capital Gains
• Section: 54; 69C; 143(3); 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [BEFORE HONBLE SHRI S.S. GODARA, JM & HONBLE SHRI DR. ARJUN LAL SAINI ] I .T . A NO. 589 /KOL/2017 A.Y 201 3 - 14 SMT. SHYAMALI RAY V/S. I.T.O. WARD 45(4) , KOLKATA PAN: A D HPR4558E (APPELLANT) (RESPONDENT) FOR THE APPELLANT/ASSESSEE : SHRI MAMOJ DUTTA, CA, AR FOR THE RESPONDENT /DEPARTMENT : SHRI SANKAR HALDER, JCIT, SR.DR DATE OF HEARING : 19 - 08 - 2019 DATE OF PRONOUNCEMENT : 18 - 0 9 - 2019 ORDER SHRI S.S. GODARA, JM : 1. THIS A SSESSEES APPEAL FOR ASSESSMENT YEAR 20 1 3 - 14 ARISES AGAINST THE CIT(A), 13 , KOLKATAS ORDER DATED 10 - 12 - 2016 PASSED IN CASE NO. 2 85 / CIT(A) - 13 / KOL/2015 - 16 INVOLVING PROCEEDINGS U/S 143(3) OF THE INCOME - TAX ACT, 1961 ( IN SHORT ACT). HEARD BOTH THE LEARNED PARTIES. CASE FILE PERUSED. 2 . THE ASSESSEE RAISE S THE FOLLOWI NG SUBSTANTIVE GROUNDS IN THE INSTANT APPEAL: - 1. THAT THE CIT(A) FAILED TO APPRECIATE THAT SOME RENOVATION WORK ARE REQUIRED TO BE DONE IN A 100 YEARS OLD PROPERTY SUBJECTED TO OWNERSHIP CHANGES FOUR TIME AND ALSO OVERLOOKED THE ADDITIONAL CONSTRUCTION WORK OF 354 SQ.FT. MADE THEREON AS NOTED IN THE S ALE DEED AND HENCE THE DISALLOWANCE OF RENOVATION AND CONSTRUCTION COST OF RS. 1250,000/ - IS TOTALLY AGAINST THE FACTS AND MERITS OF THE CASE AND CAN NOT BE SUSTAINED. 2. THAT THE CIT(A) TOTALLY ERRED IS HOLDING THAT THE INVESTMENT OF RS. 7,00,000/ - THROU GH IN TIME, WAS MADE NOT OUT OF LTCG BUT OUT OF UNDISCLOSED AND UNEXPLAINED FUND WITHOUT REALIZING THAT THE LAW DOES NOT REQUIRE THAT SUCH INVESTMENT WILL HAVE TO BE OUT OF THE L.T.C.G FUND ONLY AND NOT OUT OF ANY OTHER AVAILABLE FUND AND SUCH AN ERRONEOUS FINDING 2 ITA NO. 589/KOL/2017 A.Y 20 13 - 14 SMT. SHYAMALI RAY 2 CANNOT BE ACCEPTED AND HENCE, THE INVESTMENT OF RS. 7,00,000/ - 'N REC BOND HAS TO BE ALLOWED U/S. 54 AND THE ADDITION OF THE SAME U/S. 69C HAS TO BE DELETED. 3. THAT THE CIT(A) WAS TOTALLY UNJUSTIFIED IN CONFIRMING THE ADDITION OF RS. 1,00,000/ - BEING CASH DEPOSIT WITH SBI U/S. 69C WITHOUT CONSIDERING THE MATERIAL FACTS AS EXPLAINED AND THUS ARRIVED AT N INJUDICIOUS AND IMPRACTICAL CONCLUSION WHICH HAS TO BE CANCELLED AND THE ADDITION MADE U/S. 69C BE DELETED. 3. IT TRANSPIRES AT THE OUTSET THAT BOTH THE LEARNED LOWER AUTHORITIES HAVE ADDED THE IMPUGNED LONG TERM CAPITAL GAINS IN A/Y BEFORE US I.E 2013 - 14 WHEREAS RELEVANT SALE DEED FORMING PART OF THE CASE HAD TAKEN PLACED ON 10/02/2012 I.E IN PREVIOUS RELEVANT TO A/Y 2012 - 13. 4. LEARNED AUTHORIZE REPRESENTATIVE THEREFORE SUBMITS THAT THE MATTER MAY BE RESTORED TO THE ASSESSING OFFICER FOR COMPLETING APPROPRIATE ASSESSMENT TO THIS EFFECT IN A/Y 2012 - 13. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO REBUT THIS CLINCHING POS ITION. WE THEREFORE ACCEPT THE ASSESSEES ALL THREE SUBSTANTIVE GROUNDS FOR STATISTICAL PURPOSES AND RESTORE THE INSTANT CASE BACK TO THE ASSESSING OFFICER TO FINALIZE CORRESPONDING. ASSESSMENT IN PRECEDING A/Y 2012 - 13 GOING BY SALE DEED EXECUTED ON 10 - 02 - 2012 AS PER LAW WITHIN THREE EFFECTIVE OPPORTUNITIES OF HEARING. 5. THIS A SSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES IN ABOVE TERM. ORDER PRONOUNCED IN THE COURT ON 18 - 0 9 - 2 019 SD/ - SD/ - [ ARJUN LAL SAINI Y ] [ S.S.GODARA ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 18 - 0 9 - 2019 3 ITA NO. 589/KOL/2017 A.Y 20 13 - 14 SMT. SHYAMALI RAY 3 **PRADIP, SR. PS C OPY OF THE ORDER FORWARDED TO: 1 . APPELLANT/ASSESSEE: SMT. SHYAMALI RAY, FLAT NO. 32, MUKUND, 3 RD FL., 6/1/3 QUEENS PARK, KOLKATA - 19. 2. RESPONDENT/DEPARTMENT: THE I.T.O., WARD 45(4), 3 GOVT PLACE (WEST), KOLKATA - 1. 3 .C.I.T (A) . - 4. C.I.T. - KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR H.O.O/D.D.O KOLKATA