Smt. Pritiben Gautambhai Adani, Ahmedabad V. The Dy,CIT.,Circle-10, Ahmedabad

ITA 808/AHD/2012

• Counselvise Citation: 80820514 RSA 2012
• Duration Of Justice: 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 12-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B K S PANDYA
• Assessee Lawyers: VARTIK R CHOKSHI
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD B BENCH BEFORE: SHRI D.K. TYAGI, JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ITA NO.808 OF 2012 A.Y. 2008-09 SMT. PRITIBEN GAUTAMBHAI ADANI AHMEDABAD PAN-AASPA4937E APPELLANT VS. DCIT, CIRCLE-10 AHMEDABAD RESPONDENT WITH ITA NO.809 OF 2012 A.Y. 2008-09 SMT. PUSHPABEN VASANTBHAI ADANI AHMEDABAD PAN-AASPA4940P APPELLANT VS. DCIT, CIRCLE-10 AHMEDABAD RESPONDENT DEPARTMENT BY : SHRI B.K.S. PANDYA, SR. D.R. ASSESSEE BY : SHRI VARTIK R. CHOKSHI, A.R. DATE OF HEARING : 06.06.2012 DATE OF PRONOUNCEMENT 06.06.2012 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER THESE TWO APPEALS HAVE BEEN FILED BY THE ASSESSEES AGAINST THE SEPARATE ORDERS PASSED U/S 263 OF THE ACT BY LD. CI T DATED 09.03.2012 ON SIMILAR FACTS. THE GROUNDS OF APPEALS IN BOTH THE APPEALS ARE ALSO COMMON, SO FOR THE I.T.A. NO.808/AHD/2012, A. Y. 2008-09 WITH I.T.A. NO.809/AHD/2012, A. Y. 2008-09 2 SAKE OF CONVENIENCE BOTH THE APPEALS ARE BEING DISP OSED OF BY PASSING A CONSOLIDATED ORDER TAKING THE FACTS IN ITA NO.808 O F 2012. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE, DURI NG THE YEAR UNDER APPEAL, SOLD 70,109/- SHARES OF ADVANTAGE RETAIL PVT. LTD. ON 27.12.2007 FOR A TOTAL CONSIDERATION OF RS.6,16,95,920/-. FOR TAKING BENE FIT OF SECTION 54EC OF THE ACT, THE ASSESSEE PURCHASED BONDS ISSUED BY RURAL ELECTR IFICATION CORPORATION OF INDIA FOR A SUM OF RS.50/- LAKHS IN THE MONTH OF MARCH, 2 008 I.E. IN THE FINANCIAL YEAR 2007-08. THEREAFTER THE ASSESSEE FURTHER INVESTED A SUM OF RS.50/- LAKHS IN NATIONAL HIGHWAY AUTHORITIES OF INDIA BONDS IN THE MONTH OF MAY, 2008 I.E. IN THE FINANCIAL YEAR 2008-09. THIS INVESTMENT OF RS.1 CRO RE WAS DEDUCTED FROM THE CAPITAL GAIN WHILE COMPUTING THE INCOME UNDER THE H EAD CAPITAL GAINS AND RETURN OF INCOME WAS FILED. THE RETURN INCOME FILED BY THE A SSESSEE WAS ACCEPTED BY THE A.O. VIDE ASSESSMENT ORDER DATED 7 TH MAY, 2010 PASSED U/S 143(3) OF THE ACT. 3. SUBSEQUENTLY, ON 12 TH APRIL, 2011 THE CIT, AHMEDABAD-V ISSUED A SHOW CAUSE NOTICE U/S 263 OF THE ACT INTIMATING THA T AS PER THE PROVISO TO SECTION 54EC(1), THE INVESTMENT MADE IN LONG TERM SPECIFIED ASSETS DURING ANY FINANCIAL YEAR SHOULD NOT EXCEED RS.50 LAKHS. THE CIT FURTHE R EXPRESSED THAT THE ASSESSEE CLAIMED DEDUCTION FOR INVESTMENT OF RS.1 CRORE WHIC H WAS ALLOWED BY THE A.O. AND, THEREFORE, THE ASSESSMENT ORDER WAS ERRONEOUS AND P REJUDICIAL TO THE INTEREST OF THE REVENUE. LD. CIT, ACCORDINGLY, SHOW CAUSED THE ASSESSEE TO MAKE SUBMISSIONS ON THIS ISSUE. DETAILED WRITTEN SUBMISSIONS WERE FI LED BEFORE LD. CIT AND ASSESSEES REPRESENTATIVE ALSO ATTENDED BEFORE HIM AND THE FAC TUAL AND LEGAL POSITIONS WERE EXPLAINED TO HIM. AFTER TAKING ALL THESE INTO CONS IDERATION LD. CIT SET ASIDE THE I.T.A. NO.808/AHD/2012, A. Y. 2008-09 WITH I.T.A. NO.809/AHD/2012, A. Y. 2008-09 3 ORDER DATED 7 TH MAY, 2010, PASSED BY THE A.O. AND DIRECTED HIM TO REFRAME THE ASSESSMENT ORDER AFTER VERIFYING THE BOND CERTIFICA TE AND AFTER GIVING ADEQUATE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. HE FUR THER DIRECTED THAT THE ASSESSMENT ORDER MAY BE REFRAMED IN ACCORDANCE WITH LAW. 4. AGGRIEVED BY THIS ORDER OF LD. CIT, THESE APPEA LS HAS BEEN FILED BEFORE US. AT THE TIME OF HEARING LD. COUNSEL OF THE ASSE SSEES ONLY GRIEVANCE WAS THAT LD. CIT, WHILE DIRECTING THE A.O. TO REFRAME THE ASSESS MENT ORDER IN ACCORDANCE WITH LAW, HAS ALSO MADE CERTAIN OBSERVATIONS IN HIS ORDE R ON THE ISSUE OF ALLOWABILITY OF DEDUCTION U/S 54EC OF THE ACT WHICH ARE CONTRARY TO THE DECISION OF HONBLE ITAT, AHMEDABAD BENCH IN THE CASE OF SHRI ASPI GINWALA AN D SHRI RUSTOM GINWALA IN ITA NO.3226 AND 3227/AHD/2011 FOR THE ASSESSMENT YE AR 2008-09. HE, THEREFORE, SUBMITTED THAT THE DIRECTION OF LD. CIT MAY KINDLY BE MODIFIED TO THE EXTENT THAT THE A.O. WILL REFRAME HIS ASSESSMENT ORDER IN ACCOR DANCE WITH LAW IGNORING THE OBSERVATION MADE BY LD. CIT ON ALLOWABILITY OF DEDU CTION U/S 54EC OF THE ACT. LD. D.R. DID NOT OBJECT TO THIS SUBMISSION OF THE ASSES SEE. THEREFORE, THE DIRECTION OF LD. CIT IS MODIFIED AND THE A.O. IS DIRECTED TO REF RAME THE ASSESSMENT ORDER IN ACCORDANCE WITH LAW IGNORING THE OBSERVATION OF LD. CIT ON ALLOWABILITY OF DEDUCTION U/S 54EC OF THE ACT. 5. IN THE RESULT, THE ASSESSEES APPEALS ARE ALLOW ED. ORDER PRONOUNCED IN OPEN COURT ON 06.06.2012 SD/- SD/- (T.R. MEENA) (D.K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER I.T.A. NO.808/AHD/2012, A. Y. 2008-09 WITH I.T.A. NO.809/AHD/2012, A. Y. 2008-09 4 TRUE COPY N.K. CHAUDHARY, SR. P.S. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A) 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '# *