Mr. Bhupendra Kantilal Sojitra, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-2 (3), RAJKOT-GUJARAT

ITA 620/RJT/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1293 (ITAT-RAJKOT)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-04-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 29-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revised return
• Section: 143(3); 148; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH , RAJKOT BEFORE: S H RI ANIL CHATURVEDI , ACCOUNTANT MEMBER AND SHR I S. S. GODARA , JUDICIAL MEMBER [CONDUCTED THROUGH E - COURT AT AHMEDABAD] MR. BHUPENDRA KANTILAL SOJITRA, KESHAV KUNJ , RANCHHODNAGAR - 2, RAJKOT PAN: BAEPS6200H (APPELLANT) VS THE ITO, WARD - 2(3), RAJKOT (RESPONDENT) REVENUE B Y : S H RI PRASOON KABRA , D . R. ASSESSEE BY: S H RI AJAY DHOLARIA , A.R. DATE OF HEARING : 07 - 04 - 2 016 DATE OF PRONOUNCEMENT : 02 - 05 - 2 016 / ORD ER P ER : S. S. GODARA , JUDICIAL MEMBER : - THI S ASSESSEE S APPEAL FOR A.Y. 2007 - 08 , AR ISES FROM ORDER OF THE CIT(A) - 2, RAJKOT DATED 2 0 - 10 - 2015 IN APPEAL NO. CIT(A) - 2/0107/14 - 15 , IN PROCEEDINGS UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961; I N SHORT THE ACT . I T A NO . 620 / RJT /20 15 A SSESSMENT YEAR 200 7 - 08 I.T.A NO. 620 /RJT /20 15 A.Y. 2007 - 08 PAGE NO MR. BHUPENDRA KANTILAL SOJITRA VS. ITO 2 2. THE ASSESSEE S SUBSTANTIVE GROUND S RAISED IN THE INSTANT APPEAL READ AS UNDER: - GROUND OF APPEAL NO.1: THE HON CIT (A) ERRED IN UPHOLDING THE STAND OF THE AO THAT APPELLANT HAS NOT CLAIMED DEDUCTION U/S 54 OF THE ACT IN RETURN OF INCOME WITHOUT APPRECIATING THE FACTS THAT AS THERE WAS LONG TERM CAPITAL LOSS AS PER THE APPELLANT COMPUTATION WHILE FILING THE TAX RETURN OF THE CAPTIONED ASSESSMENT YEAR. WITHOUT PRE JUDICE TO THE ABOVE, THE HON. CI T(A) FAILED TO APPRECIATE THAT ITS ONL Y DUE TO DEEMING FICTION U/S 50 OF THE ACT, THERE WAS LONG TERM CAPITAL GAIN. SINCE THERE WAS LONG TERM CAPITAL LOSS AS PER THE ORIGINAL TAX RETURN, THE APPELLANT WAS NOT REQUIRED TO CLAIM DEDUCTION FURTHER, THE SUBJECT IMMOVABLE PROPERTY WAS VERY WELL KNO WN AND ALSO ON RECORD OF THE TAX AUTHORITY. GROUND OF APPEAL NO.2: THE HON CIT (A) ERRED IN UPHOLDING THE STAND OF THE AO WHO IN TURN RELIED ON THE DECISION OF GOETZ(LNDIA) LIMITED WHERE IN IT WAS HELD THAT THE ASSESSING OFFICER POWER IS RESTRICTED TO EN TERTAIN THE CLAIM FOR DEDUCTION ONLY BY FILING REVISED RETURN AND NOT BY ANY OTHER WAY. THE HON CIT(A) FAILED TO APPRECIATE THAT GOETZ(LNDIA ) LIMITED RESTRICTS THE POWER OF ASSESSING AUTHORITY AND NOT OF APPELLATE AUTHORITY. GROUND OF APPEAL NO. 3: THE HON CIT (A) ERRED IN UPHOLDING THE STAND OF THE AO WHO IN TURN FAILED TO APPLY THE PROVISIONS OF CHARGING SECTION 45 WHICH PROVIDES FOR COMPUTATION OF CAPITAL GAIN 'SAVE AS OTHERWISE PROVIDED IN SECTION 54 TO 54 H. THE HON CIT(A) FAILED TO APPRECIATE THA T FOR COMPUTATION OF CAPITAL GAIN ALL LEGITIMATE DEDUCTION PROVIDED IN SECTIONS 54 TO 54H BE ALLOWED. I.T.A NO. 620 /RJT /20 15 A.Y. 2007 - 08 PAGE NO MR. BHUPENDRA KANTILAL SOJITRA VS. ITO 3 THE HON CIT (A) FAILED TO COMPLY WITH CIRCULAR: NO. 14(XL - 35) OF 1955, DATED 11 - 4 - 1955 WHICH DIRECTS OFFICERS ABOUT DRAWING THE ATTENTION OF THE ASSESSEE TO ANY REFUNDS OR RELIEFS TO WHICH THEY APPEAR TO BE CLEARLY ENTITLED BUT WHICH THEY HAVE COMMITTED TO CLAIM FOR SOME REASON OR OTHER. 3. THE ASSESSEE FILED HIS RETURN ON 22 - 08 - 2007 STATING INCOME OF RS. 1,11,780/ - . THE SAME WAS SUMMARILY PROCESSED. T HE ASSESSING OFFICER THEREAFTER NOTICED THE ASSESSEE TO HAVE SO LD HIS CO - OWNED PLOT/CAPITAL ASSE T IN QUESTION ON 02 - 09 - 2006 FOR RS. 4,90,000/ - WHEREAS THE STAMP AUTHORITIES HAD ADOPTED THE SAME TO BE AS RS. 7,66,127/ - . HE ACCORDINGLY ISSUED SECTION 148 NO TICED DATED 13 - 11 - 2013 AFTER FORMING AN OPINION ON REASONS TO BELIEVE THAT THE ABOVE STATED INCOME ASSESSABLE HAD ESCAPED ASSESSMENT. HE SOUGHT TO ASSESS THE ASSESSEE ON ENHANCED SALE PRICE TO THE EXTENT OF 1/4 TH SHARE OF RS. 1,91,532/ - . THE ASSESSEE FIL ED HIS RESPONSE ON 05 - 08 - 2014 INTER ALIA CLAIMING SECTION 54 DEDUCTION ON ACCOUNT OF PURCHASE OF RESIDENTIAL HOUSE ON 27 - 09 - 2006 I.E. IN THE VERY MONTH OF SALE DEED IN QUESTION . THE ASSESSING OFFICER DECLINED THIS CLAIM IN HIS ORDER DATED 28 - 08 - 2014 BY OB SERVING THAT THE ASSESSEE OUGHT TO HAVE FILE D A REVISED RETURN LATEST BY 21 - 0 3 - 2009 AND ITS FAILURE WOULD RESULT IN REJECTION OF THE DEDUCTION CLAIM AS PER CASE LAW OF GOETZE (INDIA) LTD. VS. CIT 150 TAXMANN PAGE 01 (SC). THIS REASONING RESULTED IN IMPUGN ED ADDITION OF RS. 1,91,532/ - BEING MADE IN ASSESSEE S HAND S . THE CIT(A) CONFIRMS ASSESSING OFFICER S ACTION. 4. HEARD BOTH SIDES. LD. REPRESENTATIVE S REITERATE THEIR RESPECTIVE PLEADINGS . SUFFICE TO SAY , BOTH THE LOWER AUTHORITIES REJECT ASSESSEE S I.T.A NO. 620 /RJT /20 15 A.Y. 2007 - 08 PAGE NO MR. BHUPENDRA KANTILAL SOJITRA VS. ITO 4 CLAIM SECTION 54 DEDUCTION ON THE GROUND THAT HE OUGHT TO HAVE FILED A REVISED RETURN. THERE IS NO DISPUTE THAT THE IMPUGNED CAPITAL GAINS ARISE FROM DIFFERENCE IN ACTUAL SALE PRICE AND THAT ADOPTED BY THE STAMP AUTHORITIES . WE FIND A CO - ORDINATE BENCH OF THE TRIBUNAL IN ACIT VS. SHRI SURESH P. BALAKRISHNAN ITA 8650/MUM/2011 DECIDED ON 10 - 12 - 2013 QUOTES HON BLE BOMBAY HIGH COURT DECISION CIT VS. PRUTHVI BROKERS AND SHARES PVT . LTD. 349 ITR 336 FOR HOLDING THAT FILING OF SUCH A REVISED RETURN IN CLAIMIN G THE VERY DEDUCTION IS NOT NECESSARY. HON BLE APEX COURT DECISION IN GOETZE CASE (SUPRA) HAS ALSO BEEN CONSIDERED THEREIN. THEIR LORDSHIPS OF HON BLE APEX COURT MAKE IT CLEAR THAT THIS DECISION DOES NOT IMPINGE UPON POWERS OF APPELLATE AUTHORITIES INCLU DING THE TRIBUNAL IN ENTERTAINING ANY SUCH CLAIM WITHOU T FILING OF REVISED RETURN. WE REPLY UPON THE SAME REASONING AND HOLD THE ASSESSEE ENTITLED FOR RAISING THE IMPUGNED SECTION 54 DEDUCTION CLAIM. THE ASSESSING OFFICER IS DIRECTED TO PASS A FRESH ORDER AS PER LAW. THE ASSESSEE S THREE SUBSTANTIVE GROUNDS ARE ALLOWED FOR STATISTICAL PURPOSES. 5. THIS ASSESSEE S APPEAL IS SUCCEED FOR STATISTICAL PURPOSES. ORDER PR ONOUNCED IN THE OPEN C OUR T ON 02 - 0 5 - 201 6 SD/ - SD/ - (ANIL CHATURVEDI ) ( S . S. GODARA ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 02 /0 5 /2016 AK I.T.A NO. 620 /RJT /20 15 A.Y. 2007 - 08 PAGE NO MR. BHUPENDRA KANTILAL SOJITRA VS. ITO 5 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, RAJKOT