LATE SHRI NAGINDAS JECHAND SHAH LEGAL HEIRS NILESH N. SHAH, MUMBAI V. ITO 17 (2)(4), MUMBAI

ITA 7343/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0127 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 21-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AJAY PRATAP SINGH
• Keywords: Set aside
• Section: 143(3); 143(1); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI , ! BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER . 7343 / / 2018 (%. .2010-11 ) ITA NO. 7343/MUM/2018 (A.Y.2010-11) LATE SHRI NAGINDAS JECHAND SHAH LEGAL HEIRS NILESH N. SHAH, 159, SWASTIK RUBBER INDUSTRIES NAGDEVI STREET, MASJID BUNDER, MUMBAI 400 003 PAN:AAEPS 5677B / VS. : / APPELLANT THE ITO 17(2)(4), AAYKAR BHAVAN, M.K.ROAD, MUMBAI 400 020 : / RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI AJAY PRATAP SINGH / DATE OF HEARING : 12/10/2020 / DATE OF PRONOUNCEMENT : 21/12/2020 / ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-58, MUMBAI (IN SHORT THE CIT(A)) DATED 04/09/2018 FOR THE ASSESSMENT YEAR 2010-11, 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RE CORDS ARE: THE ASSESSEE FILED HIS RETURN OF INCOME FOR THE IMPUGNED ASSESSM ENT YEAR ON 31/07/2010 2 ITA NO. 7343/MUM/2018 (A.Y.2010-11) DECLARING TOTAL INCOME OF RS.11,53,650/-. THE RETUR N OF THE ASSESSEE WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME TAX AC T, 1961 (IN SHORT THE ACT). THEREAFTER, ASSESSMENT WAS REOPENED ON THE GROUND T HAT ASSESSEE HAS FAILED TO DISCLOSE LONG TERM CAPITAL GAIN (LTCG) OF RS.8,9 7,862/- IN THE RETURN OF INCOME NOR ANY EVIDENCE HAS BEEN ADDUCED TO SUBSTAN TIATE THAT THE AFORESAID LTCG IS EXEMPT FROM TAX. IN REASSESSMENT PROCEEDIN GS THE ASSESSEE EXPLAINED THAT THE ASSESSEE HAD EARNED LTCG OF RS.8,97,313/- ON INDIA REIT. TAX HAS BEEN PAID ON THE SAID AMOUNT BY REIT. SINCE, LONG TERM C APITAL GAIN WAS RECEIVED NET OF TAXES, THE SAME WAS NOT DISCLOSED IN THE RETURN OF INCOME BY THE ASSESSEE. ASSESSING OFFICER WAS NOT CONVINCED WITH THE SUBMIS SIONS OFFERED BY THE ASSESSEE AND MADE ADDITION OF LONG TERM CAPITAL GAI N RS.8,97,862/- IN THE HANDS OF THE ASSESSEE. AGGRIEVED BY THE ASSESSMENT ORDER DATED 30/03/2015 PASSED UNDER SECTION 147 R.W.S. 143(3) OF THE ACT, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF ASSESSEE HOLDING THAT THE ASSESSEE HAS FAILED TO SUBSTANTIATE, LONG TERM CAPI TAL GAIN EARNED FROM INDIA REIT IS EXEMPT FROM TAX. 3. SHRI AJAY PRATAP SINGH, REPRESENTING THE DEPARTM ENT VEHEMENTLY DEFENDED THE IMPUGNED ORDER AND PRAYED FOR DISMISSI NG THE APPEAL OF ASSESSEE. 4. THE SUBMISSIONS MADE BY LD. DEPARTMENTAL REPRESE NTATIVE HEARD, ORDERS OF AUTHORITIES BELOW EXAMINED. THE SOLITARY ISSUE RAISED IN THE PRESENT APPEAL BY ASSESSEE IS AGAINST ADDITION MADE IN RESPECT OF LONG TERM CAPITAL GAIN RS.8,97,862/- EARNED BY THE ASSESSEE ON INDIA REIT FUND. 5. THE CONTENTION OF THE ASSESSEE IS THAT THE TAX O N LTCG ARISING FROM INDIA REIT HAS BEEN PAID BY REIT AS REPRESENTATIVE OF THE ASSESSEE. IT IS OBSERVED THAT BEFORE THE ASSESSING OFFICER, THE ASSESSEE HAS REFERRED TO ONE LETTER DATED 3 ITA NO. 7343/MUM/2018 (A.Y.2010-11) 16/9/2009 FROM INDIA REIT STATING THAT TAX HAS BEEN PAID ON BEHALF OF ASSESSEE. HOWEVER, IT IS NOT EMANATING FROM RECORDS THAT THE COPY OF SAID LETTER WAS FURNISHED BY THE ASSESSEE EITHER BEFORE THE ASSESSI NG OFFICER OR BEFORE THE CIT(A). IN ABSENCE OF COGENT EVIDENCE TO SUPPORT TH E CONTENTIONS RAISED, ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE CIT(A). 6. TAKING INTO CONSIDERATION ENTIRE FACTS OF THE CA SE, I DEEM IT APPROPRIATE TO RESTORE THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER FOR RECONSIDERING ASSESSEES CLAIM. THE ASSESSEE IS DIRECTED TO FURNI SH DOCUMENTARY EVIDENCE BEFORE THE ASSESSING OFFICER TO SUBSTANTIATE THAT T AX ON LTCG ARISING FROM INDIA REIT FUND HAS BEEN PAID BY REIT ON BEHALF OF THE AS SESSEE. 7. THE ASSESSING OFFICER SHALL GRANT REASONABLE OP PORTUNITY TO THE ASSESSEE TO PRODUCE RELEVANT EVIDENCE IN SUPPORT OF HIS CLAI M BEFORE DECIDING THE ISSUE AFRESH, IN ACCORDANCE WITH LAW. 8. THE IMPUGNED ORDER IS SET ASIDE AND APPEAL OF T HE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE IN THE TERMS AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON MONDAY THE 21 ST DAY OF DECEMBER, 2020. SD/- (VIKAS AWASTHY) / JUDICIAL MEMBER / MUMBAI, (%/ DATED: 21/12/2020 VM , SR. PS(O/S) 4 ITA NO. 7343/MUM/2018 (A.Y.2010-11) COPY OF THE ORDER FORWARDED TO : 1. ) / THE APPELLANT , 2. *+ / THE RESPONDENT. 3. ,+ ( )/ THE CIT(A)- 4. ,+ CIT 5. -.*+% , . . . , / DR, ITAT, MUMBAI 6. ./012 / GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI