R.Balaji, CHENNAI V. ITO, CHENNAI

ITA 66/CHNY/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7783 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 02-03-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 13-01-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS VIJAYALAKSHMI
• Assessee Lawyers: R MUGUNTHAN
• Keywords: Difference of opinion; Change of opinion
• Section: 143(3); 147; 148; 54; 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , A B ENCH, CHENNAI . . . , . , % BEFORE SHRI N.R.S.GANESAN, JUDICIAL MEMBER AND SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.66/MDS/2016 ( / ASSESSMENT YEAR: 2007-08) MR. R.BALAJI, 11, SUBRAMANYAPURAM COLONY, SHASTRI NAGAR, CHENNAI-600 041. VS THE INCOME TAX OFFICER, BUSINESS WARD-III(2), (NEW N.C.WARD-8(2)) CHENNAI. PAN:AISPB4527B ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. R.MUGUNTHAN, C.A. /RESPONDENT BY : MRS. VIJAYALAKSHMI, CIT /DATE OF HEARING : 2 ND MARCH, 2016 /DATE OF PRONOUNCEMENT : 9 TH MARCH, 2016 / O R D E R PER A. MOHAN ALANKAMONY, AM:- THIS APPEAL IS FILED BY THE ASSESSEE AGGRIEVED BY T HE ORDER OF THE LEARNED PRINCIPAL COMMISSIONER OF INCO ME TAX, CHENNAI-6, DATED 26.10.2015 IN C.NO.6119(2)/PR CIT- 6/2014-15 PASSED UNDER SECTION 263 OF THE ACT. 2. THE APPEAL FILED BY THE ASSESSEE IS BARRED BY LI MITATION OF 15 DAYS. HOWEVER, THE ASSESSEE HAS FILED AN AFFI DAVIT BEFORE US EXPLAINING THE REASON FOR THE DELAY IN FI LING THE APPEAL BY CITING THE HEAVY FLOODS IN CHENNAI DUE TO WHICH THE FILES WERE DISLOCATED AND MISPLACED. CONSIDERING TH E PRAYER OF THE ASSESSEE WE ARE OF THE CONSIDERED VIEW THAT THE DELAY 2 ITA NO.66 /MDS/2016 HAS TO BE CONDONED AND ACCORDINGLY WE HEREBY CONDON E THE DELAY IN FILING OF APPEAL BY THE ASSESSEE FOR 15 DA YS. 2. THE ASSESSEE HAS RAISED SEVERAL GROUNDS IN HIS A PPEAL. HOWEVER, THE CRUX OF THE ISSUE IS THAT THE LEARNED PRINCIPAL COMMISSIONER OF INCOME TAX HAS ERRED IN INVOKING TH E PROVISIONS OF SECTION 263 OF THE ACT AND SETTING AS IDE THE ORDER OF THE ASSESSING OFFICER TO REDO THE ASSESSME NT ON THE SPECIFIC ISSUE WITH RESPECT TO THE CLAIM OF DEDUCTI ON UNDER SECTION 54 OF THE ACT. 3. BRIEF FACTS ARE THAT THE ASSESSEE AN INDIVIDUAL FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007-08 ON 31.07.2007 ADMITTING INCOME OF ` 2,64,004/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WAS NOTICED BY THE LEARNED ASSESSING OFFICER THAT THE ASSESSEE HAD SHO WN LONG TERM CAPITAL GAINS AS NIL ON SALE OF INHERITED PROP ERTY. SINCE NO DETAILS WERE FURNISHED BY THE ASSESSEE, THE LEAR NED ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 148 O N 01.10.2012. SUBSEQUENTLY, THE ASSESSMENT WAS COMPLE TED UNDER SECTION 143(3) READ WITH SECTION 147 ON 25.03 .2014 3 ITA NO.66 /MDS/2016 ACCEPTING THE RETURNED INCOME AS THE ASSESSEE HAD I NVESTED THE ENTIRE SALE PROCEEDS OF RS.32,00,000/- FOR ACQ UIRING ANOTHER PROPERTY THEREBY COMPLYING WITH THE PROVISI ONS OF SECTION 54 OF THE ACT. SUBSEQUENTLY, THE LEARNED P RINCIPAL COMMISSIONER OF INCOME TAX ON SCRUTINY OF THE CASE OBSERVED THAT THE ASSESSEE HAD INVESTED IN THE NEW ASSET ON 22.01.2010 WHICH WAS BEYOND THE PERIOD OF THREE YEA RS AND THEREFORE FORMED THE OPINION THAT THE ASSESSEE WAS NOT ENTITLED TO THE BENEFIT OF SECTION 54 OF THE ACT. THEREAFTER, THE LEARNED PRINCIPAL COMMISSIONER OF INCOME TAX DIRECT ED THE LEARNED ASSESSING OFFICER TO REDO THE ASSESSMENT FO R THE SPECIFIC PURPOSE OF VERIFYING THE VERACITY OF THE C LAIM OF THE ASSESSEE UNDER SECTION 54 OF THE ACT AND TO PASS OR DERS AS PER MERIT AND LAW AFTER PROVIDING DUE OPPORTUNITY T O THE ASSESSEE OF BEING HEARD. 4. THE LEARNED AUTHORIZED REPRESENTATIVE VEHEMENTLY ARGUED AGAINST THE ORDER OF THE LEARNED PRINCIPAL COMMISSIONER OF INCOME TAX BY STATING THAT THE ASSE SSEE HAD PROVIDED ALL THE INFORMATION BEFORE THE LEARNED ASSESSING OFFICER WHO HAD DULY CONSIDERED THE ISSUE AND DECID ED THE 4 ITA NO.66 /MDS/2016 MATTER IN ACCORDANCE WITH LAW IN FAVOUR OF THE ASSE SSEE. THEREFORE, HE PLEADED THAT THE ORDER OF THE LEARNED PRINCIPAL COMMISSIONER OF INCOME TAX IS ERRONEOUS AS IT IS NO THING BUT CHANGE OF OPINION WITHOUT APPRECIATING THE ENTIRE F ACTS OF THE CASE. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE O THER HAND, ARGUED IN SUPPORT OF THE ORDER OF THE LEARNED PRINCIPAL COMMISSIONER OF INCOME TAX AND PLEADED THE SAME TO BE SUSTAINED BECAUSE THE LEARNED PRINCIPAL COMMISSIONE R OF INCOME TAX HAD ONLY REMANDED THE CASE TO THE FILE O F LEARNED ASSESSING OFFICER FOR A SPECIFIC PURPOSE BASED ON H IS OBSERVATION. 6. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY PER USED THE MATERIALS AVAILABLE ON RECORD. FROM THE ORDER OF THE LEARNED PRINCIPAL COMMISSIONER OF INCOME TAX IT IS EVIDENT THAT ON VERIFYING THE REGISTERED DOCUMENTS IT CAME TO LIGHT THAT THE ASSESSEE HAS PURCHASED THE PROPERTY ON 22.1.201 0 WHICH APPEARS TO BE BEYOND THE PERIOD OF THREE YEARS AND THEREFORE FALLING OUTSIDE THE SCOPE OF SECTION 54 OF THE ACT. IN THESE CIRCUMSTANCES, WE FIND MERIT IN THE ORDER OF THE LE ARNED 5 ITA NO.66 /MDS/2016 PRINCIPAL COMMISSIONER OF INCOME TAX. HE HAS ONLY JUDICIOUSLY DIRECTED THE LEARNED ASSESSING OFFICER TO VERIFY THE CLAIM OF THE ASSESSEE UNDER SECTION 54 OF THE ACT B ASED ON THE FACTS AVAILABLE ON RECORD AND TO DECIDE THE MAT TER IN ACCORDANCE WITH LAW AND MERIT AFTER PROVIDING SUFFI CIENT OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. CONSIDE RING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND IT NECESSARY TO INTERFERE WITH THE ORDER OF THE LEARNE D PRINCIPAL COMMISSIONER OF INCOME TAX. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 9 TH MARCH, 2016 SD/- SD/- ( . . . ) ( . ) (N.R.S.GANESAN) ( A.M OHAN ALANKAMONY ) # % / JUDICIAL MEMBER % / ACCOUNTANT MEMBER # /CHENNAI, ( /DATED 9 TH MARCH, 2016 SOMU *+ ,+ /COPY TO: 1. APPELLANT 2. RESPONDENT 3. - () /CIT(A) 4. - /CIT 5. + 1 /DR 6. /