ITO 12(3)(3), MUMBAI V. ANIL P. MUKHI, MUMBAI

ITA 6803/MUM/2010

• Counselvise Citation: 680319914 RSA 2010
• Duration Of Justice: 1 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-02-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 27-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B MENON
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'A' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NO. 6803/MUM/2010 (ASSESSMENT YEAR: 2007-08) INCOME TAX OFFICER - 12(3)(3) SHRI ANIL P. MUKHI ROOM NO. 138, 1ST FLOOR C/O. KALYANIWALLA &MISTRY AAYAKAR BHAVAN, M.K. ROAD VS. ARMY & NAVI BLDG., 3RD FLOOR MUMBAI 400020 148 M.G. ROAD, FORT, MUMBAI 001 PAN - AAHPM 2388 J APPELLANT RESPONDENT APPELLANT BY: SHRI P.K.B. MENON RESPONDENT BY: SHRI M.M. GOLVALA/ SHRI ZAREER N. MEHTA DATE OF HEARING: 16.02.2012 DATE OF PRONOUNCEMENT: 16.02.2012 O R D E R PER D. MANMOHAN, V.P. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) XXIII, MUMBAI DATED 30.07.2010 AND IT PERTAI NS TO A.Y. 2007-08. 2. THE FOLLOWING GROUNDS WERE URGED BY THE REVENUE IN THE APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN TO GRANT EXEMPTION U/S 54 OF TH E I.T. ACT, 1961, IN RESPECT OF THE PROPERTY PURCHASED IN FOREIGN COU NTRY CANADA. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) HAS IGNORED THE DECISION OF THE HON'BLE ITAT , AHMEDABAD IN THE CASE OF LEENA J. SHAH. 3. THE ISSUE CONCERNS INTERPRETATION OF PROVISIONS OF SECTION 54 OF THE ACT. ASSESSEE CONTENDED THAT IN ORDER TO CLAIM EXEM PTION ASSESSEE HAS TO INVEST THE CAPITAL GAIN IN PURCHASE OF ANOTHER RESI DENTIAL HOUSE WITHOUT ANY EMBARGO AS TO WHETHER THE HOUSE TO BE PURCHASED IS LOCATED IN INDIA OR NOT. THE A.O. REJECTED THE CONTENTION OF THE ASSESSEE WH EREAS THE LEARNED CIT(A), FOLLOWING THE DECISION OF THE ITAT MUMBAI BENCH IN THE CASE OF PREMA P. ITA NO. 6803/MUM/2010 SHRI ANIL P. MUKHI 2 SHAH AND SANJIV P. SHAH VS. ITO 282 ITR (AT) 211, H ELD THAT EVEN IF THE PROPERTY PURCHASED IS SITUATED IN A FOREIGN COUNTRY , IT SATISFIES THE CONDITIONS LAID DOWN IN SECTION 54 OF THE ACT AND A CCORDINGLY HE ACCEPTED THE PLEA OF THE ASSESSEE. REVENUE IS IN APPEAL BEFO RE US CONTENDING, INTER ALIA, THAT THE ITAT MUMBAI BENCH HAS IGNORED THE DE CISION OF THE ITAT AHMEDABAD BENCH IN THE CASE OF LEENA J. SHAH VS. AC IT IN ITA NO. 2467I(AHM) OF 2000 DATED 10.11.2005. 4. THE LEARNED COUNSEL, ON THE OTHER HAND, SUBMITTED T HAT THE ITAT MUMBAI BENCH HAD ANOTHER OCCASION TO CONSIDER THE S AME ISSUE WHEREIN THE DEPARTMENT HAS PRESSED INTO SERVICE THE DECISIO N OF THE ITAT AHMEDABAD BENCH (SUPRA) BUT THE ITAT G BENCH MUMB AI, IN THE CASE OF ITO VS. DR. GIRISH M. SHAH IN ITA NO. 3582/MUM/2009 DATED 17.02.2010, PREFERRED TO FOLLOW THE DECISION TAKEN BY THE MUMBA I BENCH IN THE CASE OF PREMA P. SHAH. HE ALSO SUBMITTED THAT THE TRIBUNAL HAS CHOSEN TO APPLY THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF C IT VS. VEGETABLE PRODUCTS LTD. 88 ITR 192 TO HOLD THAT EVEN IF THERE ARE TWO VIEWS POSSIBLE ON THE ISSUE, THE ONE WHICH IS FAVOURABLE TO THE ASSESSEE HAS TO BE TAKEN AND ACCORDINGLY SUPPORTED THE VIEW TAKEN BY THE LEARNED CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSE D THE RECORD. IN THE LIGHT OF THE SUBSEQUENT DECISION OF THE ITAT MU MBAI BENCH (SUPRA) WE ARE OF THE VIEW THAT THE ORDER PASSED BY THE LEARNE D CIT(A) DOES NOT CALL FOR ANY INTERFERENCE. ACCORDINGLY, AS PRONOUNCED IN THE OPEN COURT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH FEBRUARY 2012. SD/- SD/- (B. RAMAKOTAIAH) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 16 TH FEBRUARY 2012 ITA NO. 6803/MUM/2010 SHRI ANIL P. MUKHI 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XXIII, MUMBAI 4. THE CIT XII, MUMBAI CITY 5. THE DR, A BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.