NUTAN NIRMAL OZA, MUMBAI V. INCOME TAX OFFICER(it)-3(2)(1), MUMBAI

ITA 5964/MUM/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6264 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 21-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN KUMAR
• Keywords: Set aside; Capital Gains
• Section: 54F; 54

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE HONBLE SH. SANDEEP GOSAIN, JM & HONBLE SH. G. MANJUNATHA, A M ./ I.T.A. NO . 5964 /MUM/201 7 ( / ASSESSMENT YEAR: 2014 - 15 ) NUTAN NIRMAL OZA, C/O - CHHAJED AND DOSHI, 101, HUBTOWN SOLARIS, N. S. PHADKE MARG, NEAR EAST WEST FLYOVER, ANDHERI (EAST), MUMBAI - 400 069 / VS. DCIT CEN CIR 3(2)(1) , ROOM NO. 1628, 16 TH FLOOR, AIR INDIA BLDG, MUMBAI PIN - ./ ./ PAN NO. A BDPO2690Q ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI PIYUSH CHHAJED , AR / RESPONDENTBY : SHRI SUMAN KUMAR , DR / DATE OF HEARING : 01.01 .201 9 / DATE OF PRONOUNCEMENT : 22.01.2019 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE P RESENT APPE AL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF LD. CIT (APPEAL) 57, MUMBAI DATED 23.06.2017 F OR AY 20 14 - 15 . 2 I.T.A. NO. 5964 /MUM/201 7 NUTAN NIRMAL OZA 2. THE ONLY GRIEVANCE OF THE ASSESSEE IN FILING THE PRESENT APPEAL IS AGAINST CHALLENGING THE ORDER OF LD. CIT(A) IN CONFIRMING THE ADDITIONS MADE BY DISALLOWING THE EXEMPTION U/S 54 OF THE ACT ON ACCOUNT OF INVESTMENT MADE IN RESIDENTIAL HOUSE OUTSIDE INDIA . 3. THE FACTS OF THE PRESENT CASE ARE UNDISPUTED TO THE EXTENT THAT THE ASSESSEE HAD INVESTED THE AMOUNT IN PURCHASING THE PROPERTY OUTSIDE INDIA AND CLAIMING DEDUCTION U/S 54 OF THE ACT, 1961. THE REVENUE AUTHORITIES HAD DECIDED THAT DEDUCTION U/S 54 OF THE ACT IS NOT AVAILABLE TO THE ASSESSEE AS THE ASSESSEE HAD MADE INVESTMENT IN PROPER TY SITUATED OUTSIDE INDIA . IN REACHING TO THE SAID CONCLUSION, THE REVENUE AUTHORITIES HAD RELIED UPON THE DECISION OF THE COORDINATE BENCH OF ITAT IN THE CASE OF LEENA J. SHAH VRS. ACIT 6 SOT 721 (AHD). 4. ON THE OTHER HAND LD. AR RELIED UPON THE JUDGME NTS PASSED IN THE CASE OF ASHOK KESHAVLAL TEJUJA (2018) 91 TAXMANN.C OM 28, MUMBAI TRIBUNAL, DIPANKAR MOHAN GHOSH (2018) 89 TAXMANN.COM 218, INCOME TAX OFFICER VRS. 3 I.T.A. NO. 5964 /MUM/201 7 NUTAN NIRMAL OZA NISHANT LALIT , ITA NO.6883/MUM/2014, MUMBAI TRIBUNAL, MRS SAROJA NAIDU (2017) 88 TAXMANN. COM 784 AND SHRI FAROKH JAL DEBOO, ITA NO 4650/MUM/2013 , WHEREIN IT WAS HELD THAT WHERE OUT OF CAPITAL GAINS, ASSESSEE PURCHASED A RESIDENTIAL HOUSE ABROAD I.E. PRIOR TO AMENDMENT OF SECTION 54F BY FINANCE ACT 2014 W.E.F. 01.04.15, THE ASSESSEE HAD TO BE A LLOWED BENEFIT OF DEDUCTION U/S 54F. 5 . AFTER HAVING HEARD THE COUNSELS FOR BOTH THE PARTIES AT LENGTH , DOCUMENTS PLACED ON RECORD, JUDGMENTS CITED BY THE PARTIES AND THE ORDERS PASSED BY THE REVENUE AUTHORITIES, WE NOTICED THAT THE ORDER PASSED BY THE C OORDINATE BENCH OF ITAT IN THE CASE OF LEENA J. SHAH VRS. ACIT (SUPRA) HAVE ALREADY BEEN REVERSED AND SET ASIDE BY HONBLE GUJRAT HIGH COURT REPORTED IN (2016) 72 TAXMANN.COM 185 (GUJ), WHEREIN THE HONBLE HIGH COURT AFTER CONSIDERING THE AMENDMENT IN FINANCE (NO. 2) ACT 2004 WHICH CAME INTO EFFECT WITH EFFECT FROM 1.04.15 HAD HELD THAT PRIOR TO 1.04.15, WHERE ASSESSEE, A NON - RESIDENT INDIAN, SOLD A PLOT OF LAND SITUATED IN INDIA AND PU RCHASED A 4 I.T.A. NO. 5964 /MUM/201 7 NUTAN NIRMAL OZA RESIDENTIAL HOUSE IN USA OUT OF SALE PROCEEDS OF LAND, SHE WAS ENTITLED TO BENEFIT U/S 54F. 6 . APART FROM ABOVE, W E HAVE ALSO CONSIDERED ALL THE JUDGMENTS CITED ABOVE BY THE LD. AR AND AFTER CO - JOINT READING OF ALL THE DECISION S MENTIONED ABOVE , WE ARE ALSO OF THE VIEW THAT WHERE OUT OF CAPITAL GAINS I.E. PRIOR TO AMENDMENT OF SECTION 54F BY FINANCE ACT, 2014 W.E.F 01.04.15, IF THE ASSESSEE PURCHASES A RESIDENTIAL HOUSE ABROAD THEN THE BENEFIT OF DEDUCTION U/S 54F IS TO BE ALLOWED. 7 . NO CON TRARY JUDGMENTS HAVE BEEN CITED BY THE REVENUE. THEREFORE KEEPING IN VIEW OUR ABOVE DISCUSSION, WE HOLD THAT UNDER THE FACTS OF THE PRESENT CASE , THE ASSESSEE IS ENTITLED TO BENEFIT U/S 54 OF THE I.T. ACT. THUS, THIS GROUND RAISED BY THE ASSESSEE IS ALLOWED. WE ORDER ACCORDINGLY. 8 . IN THE NET RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED WITH NO ORDER AS TO COST. 5 I.T.A. NO. 5964 /MUM/201 7 NUTAN NIRMAL OZA ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND JAN, 2019 . SD/ - SD/ - ( G. MANJUNATHA ) ( SANDEEP GOSAIN) / A COUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 22 . 01 .201 9 SR.PS . DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ ASSTT.REGISTRAR) , / ITAT, MUMBAI