Mr. Balaram Tukaram Patil, Mumbai V. ITO, Ward -2, Raigad

ITA 662/PUN/2013

• Counselvise Citation: 66224514 RSA 2013
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 13-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MODI; S B WALIMBE
• Assessee Lawyers: R P SETH
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO. 662/PN/2013 (ASSESSMENT YEAR : 2009-10) MR. BALARAM TUKARAM PATIL, 904, SHREE TOWER, PLOT NO. 16, SECTOR NO. 20, KHARGHAR, NAVI MUMBAI 410 210. PAN : AJOPP2603B . APPELLANT VS. ITO, WARD 2, PANVEL. . RESPONDENT APPELLANT BY : MR. R. P. SETH RESPONDENT BY : MR. A. K. MODI & MR. S. B. WALIMBE DATE OF HEARING : 29-11-2013 DATE OF PRONOUNCEMENT : 02-12-2013 ORDER PER G. S. PANNU, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, THANE DATED 30.11.2012 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 26.12.2011 PAS SED BY THE ASSESSING OFFICER, U/S 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT), PERTAINING TO THE ASSESSMENT YEAR 2009-10. 2. IN THIS APPEAL, THE SUBSTANTIVE DISPUTE IS WITH REGARD TO AN ADDITION OF RS.25,24,154/- MADE BY THE ASSESSING OFFICER ON AC COUNT OF LONG TERM CAPITAL GAIN EARNED BY THE ASSESSEE ON SALE OF FLAT NO. 40 1 AT SHREE TOWERS, KHARGHAR. 3. THE FIRST AND FOREMOST POINT RAISED BY THE APPEL LANT BEFORE US IS TO THE EFFECT THAT THE INCOME-TAX AUTHORITIES HAVE FAILED TO APPRECIATE THAT THE GAIN ON THE SALE OF IMPUGNED PROPERTY WAS LIABLE TO BE TAXE D IN ASSESSMENT YEAR ITA NO. 662/PN/2013 A.Y. 2009-10 2010-11 BECAUSE THE TRANSFER OF PROPERTY TOOK PLACE IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2010-11, AS CONVEYA NCE-DEED WAS EXECUTED ON 23.11.2009, A COPY OF WHICH HAS BEEN PLACED ON R ECORD. IT HAS BEEN FURTHER SUBMITTED THAT THE AFORESAID POSITION WAS B ROUGHT TO NOTICE OF THE ASSESSING OFFICER AND IN SUPPORT, A COMMUNICATION A DDRESSED TO THE INCOME TAX OFFICER, WARD 2, PANVEL DATED 08.09.2011 HAS BE EN PLACED ON RECORD. 4. THE AFORESAID POINT RAISED BY THE ASSESSEE, IN O UR VIEW, GOES TO THE ROOT OF THE MATTER. HOWEVER, WE DO NOT FIND THAT T HE SAME HAS BEEN DEALT WITH EITHER IN THE ASSESSMENT ORDER OR IN THE ORDER OF T HE CIT(A). IT IS ALSO NOT EMERGING FROM THE RESPECTIVE ORDERS OF THE AUTHORIT IES BELOW AS TO WHETHER OR NOT SUCH A POINT WAS RAISED BY THE ASSESSEE. SO, H OWEVER EVEN IF IT IS TAKEN THAT THE SAID POINT WAS NOT RAISED EARLIER, IT IS C LEAR THAT THE SAME IS A POINT OF LAW WHICH IS RELEVANT TO DETERMINE THE CORRECT TAX LIABILITY ON THE ASSESSEE ON ACCOUNT OF CAPITAL GAIN ON SALE OF IMPUGNED PROPE RTY AND THEREFORE FOLLOWING THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CA SE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT, (1998) 229 ITR 383 (SC), TH E SAME DESERVES TO BE ADMITTED FOR ADJUDICATION. 5. IN VIEW OF THE AFORESAID POSITION, WE DEEM IT FI T AND PROPER TO SET-ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION AFRESH ON THE ASPECT OF TH E TAXABILITY OF CAPITAL GAIN ON SALE OF FLAT NO. 401 AT SHREE TOWERS, KHARGHAR. TH E ASSESSING OFFICER SHALL CONSIDER AND ADJUDICATE AS TO THE CORRECT YEAR OF A SSESSABILITY OF CAPITAL GAIN HAVING REGARD TO THE LEGAL POSITION AND ONLY THEREA FTER PROCEED FURTHER. NEEDLESS TO SAY, THE ASSESSING OFFICER SHALL ALLOW THE ASSESSEE A REASONABLE OPPORTUNITY TO PUT-FORTH HIS SUBMISSIONS AND MATERI AL IN SUPPORT OF HIS STAND. THE ASSESSING OFFICER SHALL CONSIDER THE SUBMISSION S OF THE ASSESSEE AND THEREAFTER PASS AN ORDER AFRESH ON THE ASPECT OF TH E GAIN ACCRUING ON TRANSFER OF PROPERTY AT KHARGHAR IN ACCORDANCE WITH LAW. ITA NO. 662/PN/2013 A.Y. 2009-10 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ABOVE DECISION WAS ANNOUNCED IN THE OPEN COURT AT THE CONCLUSION OF THE HEARING IN THE PRESENCE OF BOTH THE PARTIES ON 29 TH NOVEMBER, 2013. SD/- SD/- (SHAILENDRA KUMAR YADAV) (G . S. PANNU) JUDICIAL MEMBER ACCOUNT ANT MEMBER PUNE, DATED : 02 ND DECEMBER, 2013 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-I, THANE; 4) THE CIT-I, THANE; 5) THE DR, B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE