PRAFULLA J. MOKADAM, Nagpur V. THE ITO, WARD-4(2), Nagpur

ITA 77/NAG/2017

• Counselvise Citation: [2014] 129 COUNSELVISE.COM (IT) 9940 (ITAT-NAGPUR)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 23-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 02-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR MILIND BHUSARI
• Keywords: Principle of natural justice; Benefit of exemption; Set aside
• Section: 234B; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI RAM LAL NEGI, JUDICIAL MEMBER ITA NO.77/NAG./2017 ( ASSESSMENT YEAR : 200809 ) LATE M/S. NIRMALA GANPATRAO MOKADAM THROUGH LEGAL HEIR PRAFULLA J. MOKADAM 20, FARM LAND, CENTRAL BAZAR ROAD NEW RAMDASPETH, NAGPUR 440 010 PAN ABIPM0209J APPELLANT V/S INCOME TAX OFFICER WARD4(2), NAGPUR .... RESPONDENT ASSESSEE BY : SHRI K.P. DEWANI REVENUE BY : DR. MILIND BHUSARI DATE OF HEARING 09.05.2018 DATE OF ORDER 11.05 .2018 O R D E R PER SHAMIM YAHYA, A.M. THIS APPEAL BY THE ASSESSEE IS AGAINST THE IMPUGNED ORDER DATED 29 TH DECEMBER 2016, PASSED BY THE LEARNED CIT(A)4, NAG PUR, RELEVANT TO THE ASSESSMENT YEAR 200809. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE REPRODUCED B ELOW: 1. THE CLAIM OF ASSESSEE AS REGARD TO EXEMPTION U/ S 54 OF IT. ACT 1961 IN RESPECT TO AMOUNT AT RS.50,00,000/- DEPOSIT ED IN CAPITAL GAIN ACCOUNT SCHEME OUGHT TO HAVE BEEN ALLOWED AS C LAIMED. 2. THE DISALLOWANCE OF EXEMPTION U/S 54 OF I.T. ACT 1961 AT RS.50 LACS IS UNJUSTIFIED, UNWARRANTED AND BAD IN LAW. 2 LATE M/S. NIRMALA GANPATRAO MOKADAM 3. THE LEARNED CIT(A) ERRED IN UPHOLDING THE DENIAL OF EXEMPTION U/S 54 OF IT. ACT 1961 IN RESPECT TO AMOUNT DEPOSIT ED IN CAPITAL GAIN ACCOUNT SCHEME. 4. THE ASSESSEE DENIES LIABILITY TO PAY INTEREST U/ S 234A, 234B AND 234C OF IT. ACT 1961. WITHOUT PREJUDICE LEVY OF INTEREST U/S 234A, 234B AND 234C OF IT. ACT 1961 IS UNJUSTIFIED, UNWARRANTED AND EXCESSIVE. 2. ON THE IMPUGNED ISSUE, THE ASSESSEE HAS MADE FOLLOW ING SUBMISSIONS BEFORE THE LEARNED CIT(A): IN ORDER TO CLAIM DEDUCTION U/S 54 OF THE INCOME T AX ACT, 1961 THE ASSESSEE HAD DEPOSITED A SUM OF ` 50,00,000 IN CAPITAL GAIN ACCOUNT SCHEME WITH BANK OF BARODA, DHARAMPETH, NAG PUR. THE ASSESSEE BEING QUITE AN OLD LADY AND STAYING ALONE COULD NOT PROPERLY REPRESENT THE CASE BEFORE THE INCOME TAX O FFICER. IT IS, THEREFORE, REQUESTED THAT THE MATTER MAY PLEASE BE REMANDED BACK TO THE A.O. FOR VERIFICATION. DETAILS OF DEPOSITS U/S 54 (CAPITAL GAIN ACCOUNT SC HEME) ARE AS UNDER: CAPITAL GAIN ACCOUNT SCHEME NUMBER 04650100015547 WITH BANK OF BARODA, DHARAMPETH, NAGPUR DATE OF OPENING AN ACCOUNT 26/10/2017 AMOUNT DEPOSITED IN CAPITAL GAIN ACCOUNT SCHEME ` 50,00,000 3. THE LEARNED CIT(A) WAS, HOWEVER, NOT CONVINCED AND HE HELD AS UNDER: 7.1 NO FURTHER DETAILS OF CAPITAL GAIN ACCOUNT SCH EME OR THE DEPOSITS MADE THEREIN HAVE BEEN GIVEN BY THE APPELL ANT. A PERUSAL OF ASSESSMENT ORDER SHOWS THAT THE AO HAS A LLOWED DEDUCTION U/S 54EC TO THE TUNE OF RS. 50,00,000/-. IN ABSENCE OF ANY FURTHER DETAIL PERTAINING TO THE DEPOSITS IN CA PITAL GAIN ACCOUNT IT IS NOT POSSIBLE FOR ME TO ADJUDICATE THI S ISSUE. 7.2 CONSIDERING THAT NO COPY OF ACCOUNT ETC. OF CAP ITAL GAIN ACCOUNT SCHEME HAS BEEN PROVIDED AND ALSO CONSIDERI NG THAT THE ASSESSMENT ORDER IS SHOWING THAT THE APPELLANT HAS BEEN GIVEN 3 LATE M/S. NIRMALA GANPATRAO MOKADAM DEDUCTION U/S 54EC AMOUNTING TO RS. 50,00,000/-. TH IS GROUND OF APPEAL IS DISMISSED. 4. BEING AGGRIEVED BY THE AFORESAID ORDER OF THE LEARNED CIT(A), THE ASSESSEE IS IN FURTHER APPEAL BEFORE THE T RIBUNAL. 5. BEFORE US, THE LEARNED COUNSEL FOR ASSESSEE SUMMARIZED HIS SUBMISSIONS AS UNDER: ASSESSES HAS DEPOSITED SUM OF RS.50 LACS UNDER CAP ITAL GAIN ACCOUNT SCHEME. DETAILS OF SAME IS AS FOLLOWS: CAPI TAL GAIN SCHEME A/C NO. 04650100015547 BANK NAME & BRANCH : BANK OF BARODA, DHARAMPETH BRANCH, NAGPUR DATE OF DEPOSIT : 26/10/2007 B) BEFORE THE HON'BLE CIT(A) DETAILS WERE SUBMITTED WITH A REQUEST THAT THE CLAIM OF ASSESSEE BE REMANDED TO A.O. FOR VERIFICATION IN ORDER TO GRANT BENEFIT OF EXEMPTION U/S 54 IN RESPE CT TO LONG TERM CAPITAL GAIN ASSESSED ON SALE OF RESIDENTIAL HOUSE AT THE HANDS OF ASSESSEE. C) THE HON'BLE CIT(A) AT PARA 7.1 HAS DISMISSED THE APPEAL BY OBSERVING THAT ASSESSEE HAS BEEN ALLOWED DEDUCTION U/S 54EC OF INCOME TAX ACT 1961 AND CONSIDERING THAT NO COPY OF ACCOUNT OF CAPITAL GAIN ACCOUNT SCHEME HAS BEEN PROVIDED. GROU NDS OF APPEAL OF APPELLANT ARE DISMISSED. THERE IS DISPUTE AMONG THE LEGAL HEIR THEREFORE COP Y OF CAPITAL GAIN ACCOUNT SCHEME COULD NOT BE PRODUCED ALL THOUGH THE COMPLETE DETAILS ARE PROVIDED INCLUDING A/C NO. AND BANK AND BRANCH OF BANK BEFORE HON'BLE CIT(A). CLAIM OF ASSESSEE OUGHT TO H AVE VERIFIED AND NOT DISMISSED CONSIDERING THE PRINCIPLE OF NATURAL JUSTICE. ON ABOVE UNDISPUTED FACTS THE CLAIM OF EXEMPTION U/S 54 BE A LLOWED OR ALTERNATIVELY SAME BE RESTORED TO THE FILE OF A.O. FOR GRANT OF EXEMPTION U/S 54 IN RESPECT TO CAPITAL GAIN ACCOUNT SCHEME ON VERIFICATION OF SAME. 6. PERCONTRA, THE LEARNED DEPARTMENTAL REPRESENTATIVE DID NOT HAVE ANY SERIOUS OBJECTION IN THE MATTER BEING REST ORED TO THE FILE OF THE A.O. FOR EXAMINATIONS OF THE DETAILS SUBMITTED BY THE ASSESSEE. 4 LATE M/S. NIRMALA GANPATRAO MOKADAM 7. AFTER HEARING BOTH THE PARTIES AND ON A CAREFUL CON SIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE NOTE TH AT THE ASSESSEE HAS MADE A CLAIM OF DEPOSIT OF ` 50 LAKH UNDER CAPITAL GAIN SCHEME. THE ASSESSEE HAS SUBMITTED DETAILS LIKE NAME OF BANK & I TS BRANCH, CAPITAL GAIN SCHEME ACCOUNT NUMBER AND DATE OF DEPOSIT. THE ASSESSEE HAS NOT BEEN ABLE TO PRODUCE EVIDENCE OF RELEVANT ENTRY . IN VIEW OF THIS, THE ASSESSEE NOW SEEKS AN OPPORTUNITY TO BE GRANTED TO CANVAS THE ISSUE. UPON CAREFUL CONSIDERATION AND IN THE INTERES T OF JUSTICE, WE SET ASIDE THE IMPUGNED ORDER PASSED BY THE LEARNED CIT( A) AND RESTORE THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER DIRECTING HIM TO EXAMINE THE EVIDENCES FILED BY THE ASSESSEE AND THE SUBMISSIONS OF THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COO PERATE WITH THE ASSESSING OFFICER IN THIS REGARD. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11.05.2018 SD / - RAM LAL NEGI JUDICIAL MEMBER SD/ - SHAMIM YAHYA ACCOUNTANT MEMBER NAGPUR, DATED: 11.05.2018 5 LATE M/S. NIRMALA GANPATRAO MOKADAM COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, NAGPUR CITY CONCERNED; (5) THE DR, ITAT, NAGPUR; (6) GUARD FILE. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (SR. P.S./P.S.) ITAT, NAGPUR