MURALIDHARAN UMMANATH, TAMILNADU V. ACIT 35(2), MUMBAI

ITA 6493/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6826 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: I
• Assessment Year: 2012-2013
• Appeal Filed On: 07-11-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANOOP HISWASE
• Keywords: Capital asset
• Section: 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JM A ND SHRI N. K. PRADHAN, AM ./ I.T.A. NO. 6493/MUM/2016 ( / ASSESSMENT YEAR: 2012 - 13) SHRI MURALIDH ARAN UMMANATH E 104, 10 TH FLOOR, DLF COMMANDERS COURT, ETHIRAJ SALAI, EGMORE, CHENNAI - 600 008 TAMIL NADU / VS. THE DY. COMMISSIONER OF INCOME TAX, CIRCLE 35(2), INCOME TAX DEPARTMENT, C - 12, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 400 051 ./ ./ PAN/GIR NO. AACPU 0418 J ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI PRAYAG JHA / RESPONDENT BY : SHRI ANOOP HISWASE / DATE OF HEARING : 08.0 5.2018 / DATE OF PRONOUNCEMENT : 01.06 .2018 / O R D E R PER SA KTIJIT DEY , J . M.: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 30.08.2016 OF THE LD. C OMMISSIONER OF INCOME TAX (A PPEALS ) 46, MUMBAI FOR THE ASSESSMEN T YEAR 2012 - 13. 2. THE REGISTRY HAS POINTED OUT A DELAY OF 0 9 DAYS IN FILING THE APPEAL. LEARNED AUTHORIZED REPRESENTATIVE EXPLAINED BEFORE US THAT THE DATE OF COMMUNICATION OF THE LD. 2 ITA NO. 6493/MUM/2016 SHRI MURALIDHARAN UMMANATH COMMISSIONER OF INCOME TAX (APPEALS)S ORDER HAS BEEN WRONGLY MENTION ED AS 30.08.2016 IN COLUMN NO. 12 OF FORM NO.36 INSTEAD OF 30.09.2016. THUS, IT WAS SUBMITTED , ACTUALLY THERE IS NO DELAY IN FILING THE PRESENT APPEAL. 3. ON PERUSAL OF THE MATERIALS ON RECORD, WE FIND THAT IN COLUMN NO. 12 OF FORM NO. 36, THE ASSESSEE HA S WRONGLY MENTIONED THE DATE OF ORDER PASSED BY THE LD. COMMISSIONER (APPEALS) AS THE DATE OF COMMUNICATION OF THE ORDER, INSTEAD OF MENTIONING THE DATE OF RECEIPT OF THE ORDER BY THE ASSESSEE. THUS, THERE BEIN G NO DELAY IN FILING THE APPEAL T HE DEFECT POI NTED OUT BY THE REGISTRY IS IGNORED AND THE APPEAL IS ADMITTED TO BE HEARD ON MERIT. 4. AT THE OUTSET, THE LD. AUTHORIZED REPRESENTATIVE (AR) SUBMITTED THAT ON THE INSTRUCTION OF THE CLIENT, HE DOES NOT WANT TO PRESS GROUND NO S . 1 AND 2. IN VIEW OF THE AF ORESAID SUBMISSIONS OF THE LD. AR, GROUND NOS. 1 & 2 ARE DISMISSED. 5. IN GROUND NO. 3 THE ASSESSEE HAS RAISED THE ISSUE OF DOUBLE TAXATION OF AN AMOUNT OF RS.10 , 05 , 000/ - . BRIEFLY THE FACTS ARE , THE ASSESSEE IS AN INDIVIDUAL . F OR TH E ASSESSMENT YEAR UNDE R DISPUTE, T HE ASSESSEE FILED HIS RETURN OF INCOME ON 02.12.2012 DECLARING TOTAL INCOME OF RS.42,02,460/ - . DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD SOLD A PLOT OF LAND IN BANGALORE AND DERIVED LONG TERM CAPITAL GAIN OF RS.5043710/ - . HOWEVER, T HE ASSESSEE CLAIMED EXEMPTION U/S. 54F OF THE ACT OF THE CAPITAL GAIN. IN THE COURSE OF ASSESSMENT PROCEEDING, THE ASSESSING OFFICER WHILE EXAMINING THE CLAIM OF EXEMPTION U/S. 54F OF THE ACT, HELD THAT THE ASSESSEE IS NOT ENTITLED TO EXEMPTION U/S.54 OF T HE ACT, 3 ITA NO. 6493/MUM/2016 SHRI MURALIDHARAN UMMANATH SINCE , THE CAPITAL GAIN AROSE FROM TRANSFER OF LAND. FURTHER, HE ALSO DISALLOWED THE ASSESSEES CLAIM OF EXEMPTION U/S. 54F OF THE ACT ON THE GROUND THAT THE ASSESSEE IS THE OWNER OF TWO HOUSE PROPERTIES. THOUGH , THE ASSESSEE CHALLENGED THE AFORESA ID DECISION OF THE ASSESSING OFFICER BEFORE THE FIRST APPELLATE AUTHORITY, HOWEVER, HE WAS UNSUCCESSFUL. 6. BEFORE US, THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT AN AMOUNT OF RS.10,05,000/ - HELD IN CAPITAL GAINS ACCOUNT BY THE ASSESSEE WAS WITHDRAW N IN THE SUBSEQUENT ASSESSMENT YEAR, I.E. A.Y. 2013 - 14 AND THE ASSESSEE HAS OFFERED THE SAID AMOUNT ALONG WITH THE INTEREST TO TAX. HE SUBMITTED , WHILE COMPUTING THE CAPITAL GAIN IN THE IMPUGNED ASSESSMENT YEAR, THE ASSESSEES CLAIM OF DEDUCTION IN RESPECT OF THE AMOUNT OF RS.10,05,000/ - WAS DISALLOWED. THUS, EFFECTIVELY , THE AMOUNT OF R S.10,05,000/ - WAS BROUGHT TO TAX IN TWO ASSESSMENT YEARS, I.E., THE IMPUGNED ASSESSMENT YEAR AS WELL AS IN ASSESSMENT YEAR 2013 - 14 AMOUNT ING TO DOUBLE TAXATION OF THE SAME I NCOME. IN SUPPORT OF SUCH CONTENTION, THE LD. AR BROUGHT TO OUR NOTICE THE COMPUTATION OF INCOME AND RETURN OF INCOME FILED FOR ASSESSMENT YEAR 2013 - 14. THE COPIES OF BANK PASS BOOK OF CAPITAL GAIN ACCOUNT WITH SBI AND COPY OF STATEMENT OF ACCOUNT WITH ICI CI BANK. HE, THEREFORE, SUBMITTED THAT THE ISSUE CAN BE RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR VERIFYING ASSESSEES CLAIM AND CONSIDERING THE INCOME FOR TAXATION IN ONE ASSESSMENT YEAR. 7. THE LD. DEPARTMENTAL REPRESENTATIVE , THOUGH , SUBMITTED THAT THE ISSUE WAS NEVER RAISED BEFORE THE DEPARTMENTAL AUTHORITIES, HOWEVER, HE HAS NO OBJECTION IF A DIRECTION IS ISSUED TO THE ASSESSING OFFICER TO VERIFY ASSESSEES CLAIM. 4 ITA NO. 6493/MUM/2016 SHRI MURALIDHARAN UMMANATH 8. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD . TH E LIMITED GRIEVANCE OF THE ASSESSEE IS THAT AN AMOUNT OF RS.10,05,000/ - HAS BEEN ASSESSED TO TAX IN THE ASSESSMENT YEARS 2012 - 13 AND 2013 - 14. AS COULD BE SEEN FROM THE MATERIALS PLACED BEFORE US, THE ASSESSEE HAS DEPOSITED THE AFORESAID AMOUNT IN THE CAPIT AL GAIN ACCOUNT SCHEME AND IN THE IMPUGNED ASSESSMENT YEAR H AS CLAIMED DEDUICTION U/S. 54/54F OF THE ACT. HOWEVER, ASSESSEES CLAIM OF DEDUCTION UNDER THE AFORESAID PROVISION WAS REJECTED BY THE DEPARTMENTAL AUTHORITIES . IN THE PROCESS, THE AMOUNT OF RS.10 ,05,000/ - DEPOSITED IN THE CAPITAL GAIN ACCOUNT SCHEME WAS ASSESSED TO TAX. FROM THE COMPUTATION OF TOTAL INCOME FOR THE A.Y. 2013 - 14 AND THE BANK STATEMENT COPIES IT APPEARS THAT THE ASSESSEE HAS WITHDRAWN THE AMOUNT OF RS.10,05,000/ - FROM THE CAPITAL GAI N ACCOUNT SCHEME IN THE ASSESSMENT YEAR 2013 - 14 AND HAS OFFERED IT TO TAX. THUS, PRIMA FACIE , IT APPEARS THAT THE AMOUNT OF RS.10,05,000/ - DEPOSITED IN THE CAPITAL GAIN ACCOUNT SCHEME HAS BEEN ASSESSED IN THE ASSESSMENT YEAR 2012 - 13 AS WELL AS IN ASSESSMEN T YEAR 2013 - 14 RESULTING IN DOUBLE TAXATION OF THE SAID INCOME. HOWEVER, AS CONCEDED BY THE LD. AUTHORIZED REPRESENTATIVE , THIS ISSUE WAS NEVER RAISED BEFORE THE ASSESSING OFFICER OR THE LD. CIT(A). 9. CONSIDERING THE OVERALL FACTS AND CIRCUMSTANCES OF TH E CASE, WE ARE INCLINED TO REMIT THE ISSUE TO THE ASSESSING OFFICER WITH A DIRECTION TO VERIFY ASSESSEES CLAIM VIS - - VIS THE DOCUMENTARY EVIDENCES FILED AND IF UPON SUCH VERIFICATION IT IS FOUND THAT THE AMOUNT OF RS.10,05,000/ - WAS ASSESSED TWICE, I.E., IN THE ASSESSMENT YEARS 2012 - 13 AND 2013 - 14, THEN CONSEQUENTIAL RELIEF SHOULD BE GIVEN TO THE ASSESSEE BY EXCLUDING THE 5 ITA NO. 6493/MUM/2016 SHRI MURALIDHARAN UMMANATH AMOUNT OF RS.10,05,000/ - FROM THE INCOME OF THE ASSESSEE IN THE ASSESSMENT YEAR 2013 - 14. THIS IS FOR THE REASON THAT THE SAME INCOME CAN NOT BE ASSESSED TWICE. WITH THE AFORESAID OBSERVATION S, THE GROUND RAISED IS ALLOWED FOR STATISTICAL PURPOSE. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 01.06.2018 SD/ - SD/ - ( N. K. PRADHAN ) (S A KTIJIT DEY ) / A CCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 01.06.2018 . . ./ ROSHANI , SR. PS / 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 ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI