RUPCHAND P. VAZIRANI, MUMBAI V. ITO 22(2)(2), NAVI MUMBAI

ITA 5962/MUM/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71777 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 07-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIM KUMAR MODI
• Assessee Lawyers: VENUGOPAL C NAIR
• Section: 234B; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUM BAI . . , , BEFORE SHRI B. R. MITTAL, JM AND SHRI SANJAY ARORA , AM ./ I.T.A. NO. 5962/MUM/2013 ( / ASSESSMENT YEAR: 2005-06) RUPCHAND P. VAZIRANI 109, SINDHI SOCIETY CHEMBUR, MUMBAI-400 071 / VS. ITO 22(2)(2), INCOME TAX OFFICE, TOWER 6, VASHI, NAVI MUMBAI ! ./' ./PAN/GIR NO. ADPPV 9209 E ( !# /APPELLANT ) : ( $!# / RESPONDENT ) !# % / APPELLANT BY : SHRI VENUGOPAL C. NAIR $!# & % / RESPONDENT BY : SHRI ASHIM KUMAR MODI ' ()* & + / DATE OF HEARING : 18.11.2013 ,-. & + / DATE OF PRONOUNCEMENT : 27.11.2013 / / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-33, MUMBAI (CIT(A) FOR SH ORT) DATED 12.08.2013, DISMISSING THE ASSESSEES APPEAL CHALLENGING THE ORDER U/S.154 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) DATED 24.09.2010 IN RESPECT OF IT S ASSESSMENT FOR ASSESSMENT YEAR (A.Y.) 2005-06. 2 ITA NO. 5962/MUM/2013 (A.Y. 2005-06) RUPCHAND P. VAZIRANI VS. ITO 2. THE SHORT QUESTION INVOLVED IN THE INSTANT CASE IS THE VALIDITY OF THE ASSESSING OFFICERS (A.O.) ACTION IN EFFECTING AN ENHANCEMENT TO THE ASSESSEES ASSESSED INCOME (VIDE ORDER U/S.143(3) DATED 22.08.2007) BY DISALLO WING THE DEDUCTION/EXEMPTION U/S.54EC CLAIMED AND ALLOWED TO IT, U/S.154 OF THE ACT, SINCE CONFIRMED BY THE FIRST APPELLATE AUTHORITY. 2.2 THE BRIEF FACTS OF THE CASE, I.E., TO THE EXTEN T RELEVANT, ARE THAT THE ASSESSEE, AN INDIVIDUAL, REALIZED LONG TERM CAPITAL GAIN (LTCG) AT RS.34,99,696/- ON TRANSFER OF AN IMMOVABLE PROPERTY ON 15.09.2004 . EXEMPTION THERE-AGAINST STOOD CLAIMED AND ALLOWED IN REGULAR ASSESSMENT AT RS.33,50,000/- U/S.54EC, I NCLUDING RS.10 LACS QUA THE INVESTMENT IN NATIONAL HOUSING BANK (NHB) BONDS ON 19.03.2005. THE SAME BEING BEYOND A PERIOD OF SIX MONTHS AFTER THE DATE OF TRA NSFER, THE A.O. DISALLOWED THE SAME BY INVOKING SECTION 154 OF THE ACT. THE SAID SECTION C LEARLY PRESCRIBES A PERIOD OF SIX MONTHS (AFTER THE DATE OF TRANSFER), WHICH THEREFOR E EXPIRES ON 15.03.2005. ACCORDINGLY, THE SAID INVESTMENT DID NOT QUALIFY AS AN ELIGIBLE INVESTMENT U/S.54EC. THE SAME STOOD CONFIRMED IN APPEAL. THE ASSESSEES RELIANCE ON THE VARIOUS DECISIONS STOOD DISTINGUISHED BY THE LD. CIT(A). THE ASSESSEES FURTHER RELIANCE ON THE DECISION BY THE TRIBUNAL IN THE CASE OF YAHYA E. DHARIWALA VS. DY. CIT (IN ITA NO.5501/MUM/2009 DATED 25.11.2011), HOLDING THAT THE PERIOD OF SIX MONTHS U/S.54EC IS T O BE CONSIDERED, IN VIEW OF THE AMBIGUITY ATTENDING THE WORD MONTH, FROM THE END OF THE MONTH OF TRANSFER, WAS ALSO CONSIDERED BY HIM AS NOT IN ACCORDANCE WITH THE LAW AND, THUS, NOT VALID. THE PREMISES OF THE SAID DECISION IS THAT THE WORD MONTH BEING NO T DEFINED UNDER THE ACT, RECOURSE TO ITS DEFINITION UNDER GENERAL CLAUSES ACT, 1987 WOULD HA VE TO BE TAKEN, WHICH STATES IT TO BE THE CALENDAR MONTH, SO THAT THE PERIOD STARTING F ROM THE BEGINNING OF THE CALENDAR MONTH NEXT FOLLOWING THE (CALENDAR) MONTH IN WHICH THE TR ANSFER IS MADE IS TO BE CONSIDERED. THE SAME STOOD DISAPPROVED BY THE LD. CIT(A) WITH R EFERENCE TO THE 183 RD REPORT OF THE LAW COMMISSION ON THE CONTINUUM OF THE GENERAL CLAU SES ACT, BRINGING OUT THE PRINCIPLES OF THE INTERPRETATION OF A STATUTE. ITS STANDS CLARIFIED THAT IF THE LANGUAGE IS CLEAR AND UNAMBIGUOUS, NO NEED FOR INTERPRETATION WOULD A RISE. THE APEX COURT PER ITS 3 ITA NO. 5962/MUM/2013 (A.Y. 2005-06) RUPCHAND P. VAZIRANI VS. ITO CONSTITUTION BENCH DECISION IN THE CASE OF R. S. NAVAL VS. A. R. ANTULAY , AIR [1984] SCC 684 HAS AGAIN CLARIFIED THAT THE WORDS OF THE STATU TE, WHERE CLEAR AND UNAMBIGUOUS, ARE TO BE READ ACCORDING TO THEIR PLAINEST AND NATURAL MEA NING (PARA 18). AGAIN, IN GRASIM INDUSTRIES LTD. VS. COLLECTOR OF CUSTOMS, BOMBAY [2002] 4 SCC 297, IT HOLDS THAT WHERE THERE IS NO OBSCURITY OR AMBIGUITY, SO THAT THE INT ENTION OF THE LEGISLATURE IS CLEARLY CONVEYED, THERE IS NO SCOPE FOR THE COURT TO TAKE U PON ITSELF THE TASK OF INTERPRETATION, WHICH WOULD AMOUNT TO AMENDING OR ALTERING THE STAT UTORY PROVISIONS (PARA 10). THE PRINCIPLE THAT AN INTERPRETATION BENEFICIAL TO THE ASSESSEE (SUBJECT) IS TO BE FOLLOWED, ALSO, THEREFORE, SHALL NOT ARISE IN THE PRESENT CASE. IN ANY CASE, THE PRINCIPLE IS NOT APPLICABLE IN CONSTRUING AN EXEMPTION PROVISION, WHICH HAS TO BE CONSTRUED STRICTLY, AS CLARIFIED BY THE APEX COURT IN THE CASE OF NOVAPAN INDIA LIMITED (3 SCR 549). THE ASSESSEES CLAIM BEING DENIED THUS, HE IS IN SECOND APPEAL. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 3.1 THE WORD MONTH HAS BEEN INTERPRETED BY THE RE VENUE AS THE PERIOD IMMEDIATELY FOLLOWING THE DATE OF TRANSFER TO THE SAME DATE, I. E., OF THE TRANSFER, IN THE FOLLOWING CALENDAR MONTH. THE CONCEPT OF MONTH THUS ADVOCATED OR INTERPRETED/PROPAGATED, INVOLVES THE APPLICATION OF, OR IS WITH REFERENCE TO THE CON CEPT OF THE CALENDAR MONTH, WHICH THUS IS ITSELF A SOURCE OF AMBIGUITY. FURTHER, THE PROVI SIONS OF THE ACT FOR CHARGING INTEREST, VIZ. SS.234A, 234B AND 234C, ETC. PROVIDES FOR A RA TE OF INTEREST FOR A MONTH OR A PART OF A MONTH, SIGNIFYING THAT THE MONTH IS A CALENDAR MONT H. AS SUCH, IT CANNOT BE SAID THAT THE WORD MONTH AS INTERPRETED BY THE REVENUE IS FREE FROM ANY AMBIGUITY, SO THAT ANY OTHER VIEW, AS ADOPTED BY THE TRIBUNAL IN YAHYA E. DHARIWALA (SUPRA), IS NOT REASONABLE. 3.2 FURTHER, IT CANNOT BE IN ANY CASE LOST SIGHT OF THAT THE DISALLOWANCE STANDS EFFECTED IN RECTIFICATION PROCEEDINGS U/S.154, THE PURVIEW O F WHICH IS THE SEVERALLY RESTRICTED, I.E., TO CLEAR AND PATENT MISTAKES OF FACT AND/OR LAW AS APPARENT FROM THE RECORD. WE AS SUCH ALSO DISCOUNTENANCE THE ASSESSEES CLAIM BEFORE US OF THE RELEVANT APPLICATION (I.E., FOR THE INVESTMENT IN NHB BONDS) AS BEING DATED 15.03.2005 (PB PG.30), SO THAT THE SAME IS THE 4 ITA NO. 5962/MUM/2013 (A.Y. 2005-06) RUPCHAND P. VAZIRANI VS. ITO RELEVANT DATE, WITH THE LD. AUTHORIZED REPRESENTATI VE (AR) IN FACT ADMITTING BEFORE US TO THE SAME HAVING BEEN TENDERED, ALONG WITH THE CHEQU E (WHICH STOOD CLEARED ON 19.03.2005), ONLY ON 17.03.2005, SO THAT NO DATE PR IOR THERETO COULD BE CONSIDERED AS VALID. NOTHING, HOWEVER, TURNS THEREON INASMUCH AS GOING BY THE VIEW TAKEN BY THE TRIBUNAL IN THE CASE OF YAHYA E. DHARIWALA (SUPRA), THE TIME LIMITATION U/S.54EC IN THE INSTANT CASE WORKS TO 31.03.2005 , I.E., SUBSEQUENT TO 17.03.2005. 3.3 IN VIEW OF THE FOREGOING, WE ARE, THEREFORE, DI SINCLINED TO BE IN AGREEMENT WITH THE REVENUE AND, ACCORDINGLY, SETTING ASIDE THE IMPUGNE D ORDER, DIRECT THE DELETION OF THE IMPUGNED DISALLOWANCE U/S.54EC. WE DECIDE ACCORDING LY. 4. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. 0. 1 (230 & ) 4 & 56 ORDER PRONOUNCED IN THE OPEN COURT ON NOVEMBER 27, 2013 SD/- SD/- (B. R. MITTAL) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ' * MUMBAI; 7( DATED : 27.11.2013 ).(../ ROSHANI , SR. PS !' # $%&' (!'% / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $!# / THE RESPONDENT 3. ' 8 ( ) / THE CIT(A) 4. ' 8 / CIT CONCERNED 5. ;)<= $ (>2 , + >2. , ' * / DR, ITAT, MUMBAI 6. =?3 @* / GUARD FILE !' ) / BY ORDER, */)+ , (DY./ASSTT. REGISTRAR) , ' * / ITAT, MUMBAI