SHASHI G. NOTANI, MUMBAI V. ITO WD 19(1)(4), MUMBAI

ITA 8141/MUM/2010

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8166 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2017
• Appeal Filed By: Assessee
• Bench Allotted: E
• Next Hearing Date: 06-03-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 25-11-2010
• Court: TRIBUNAL
• Department Lawyers: SRIDHAR E
• Assessee Lawyers: KEYURI DESAI
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & SHRI PAWAN SINGH (JM) I.T.A. NO. 8141 /MUM/20 10 (ASSESSMENT YEAR 20 07 - 08 ) SHASHI G. NOTANI 601, THE ARK S.V. ROAD SANTACRUZ WEST MUMBAI - 400 054. VS. ITO WARD 19(1) (4) PIRAMAL CHAMBERS PAREL MUMBAI - 400 012. ( APPELLANT ) ( RESPONDENT ) PAN NO . AAEPN0404B ASSESSEE BY SHRI VIPUL JOSHI & MS. KEYURI DESAI DEPARTMENT BY S HRI SRIDHAR E. DATE OF HEARING 9 . 2 . 201 7 DATE OF PRONOUNCEMENT 15 .2 . 201 7 O R D E R P ER B.R. BASKARAN (AM) : - THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 15.9.2010 PASSED BY THE LEARNED CIT(A) - 30, MUMBAI AND IT RELATES TO A.Y. 2007 - 08. THE ISSUE URGED BY THE ASSESSEE RELATES TO THE DEDUCTION ALLOWABLE U/S 54 OF THE ACT WHILE COMPUTIN G LONG TERM CAPITAL GAINS ON SALE OF TWO FLATS. 2. WE HEARD THE PARTIES AND PERUSED THE RECORD. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE SOLD TWO FLATS , VIZ., F LAT NO. 1502 & 1503 LOCATED AT OBEROI PARK. THE ASSESSEE ENTERED INTO AN AGREEMENT FOR PURCHASING TWO FLATS NAMELY 1201 & 1202 IN THE APARTMENT NAMED LIVING ESSENCE. THE ASSESSEE ALSO ENTERED INTO AN AGREEMENT TO PURCHASE A FLAT JOINTLY WITH HIS MOTHER AT IMPERIAL HEIGHTS . THE ASSESSEE CLAIMED EXEMPTION U/S. 54 OF THE ACT ON THE VALUE OF THE FLATS PROPOSED TO BE PURCHASED. THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS PAID A SUM OF ` 21,60,597/ - ONLY IN RESPECT OF FLAT NO. 1201 & 1202 IN LIVING ESSENCE BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME. FURTHER, T HE ASSESSEE DID NOT FURNISH COPY OF PURCHASE AGREEMENT IN RESPECT OF SHASHI G. NOTANI 2 FLATS PURCHASED ALONG WITH HER MOTHER AT IMPERIAL HEIGHTS. HENCE, THE ASSESSING OFFICER DID NOT RECOGNIZE THE PAYMENT MADE TOWARDS IMPERIAL HEIGHTS FLATS AND ACCORDINGLY RESTRICTED THE DE DUCTION U/S. 54 OF THE ACT TO ` 21,60,597/ - , BEING THE AMOUNT PAID IN RESPECT OF LIVING E SSENCE FLATS BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME. THE APPEAL FILED BY THE ASSESSEE CHALLENGING THE ASSESSMENT ORDER WAS DISMISSED BY THE LEARNED CIT(A) AND HENCE THE ASSESSEE HAS FILED THIS APPEAL BEFORE US. 3. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. AT THE TIME OF HEARING LEARNED AR SUBMITTED THAT THE ASSESSING OFFICER HAS CLUBBED THE SALE VALUE OF BOTH THE FLATS NAMELY FLAT NO. 1502 & 1503 OB EROI PARK AND COMPUTED LONG TERM CAPITAL GAINS BY ALLOWING DEDUCTION U/S. 54 OF THE ACT IN RESPECT OF BOTH THE FLATS. LEARNED AR SUBMITTED THAT THE FLATS PURCHASED IN LIVING ESSENCE MAY BE CONSIDERED FOR ALLOW ING DEDUCTION U/S. 54 OF THE ACT AGAINST SALE OF FLAT NO. 1502 IN OBEROI PARK. ACCORDINGLY HE SUBMITTED THAT THE F LAT PURCHASED AT IMPERIAL HEIGHTS MAY BE CONSIDERED FOR ALLOWING DEDUCTION U/S. 54 AGAINST SALE OF FLAT NO. 1503, OBEROI PARK . LEARNED AR ALSO SUBMITTED THAT THE ASSESSEE HAS FURNISHED C OPY OF SALE AGREEMENT PERTAINING TO IMPERIAL HEIGHTS AT PAGE NO. 105 TO 241 OF THE PAPER BOOK. ACCORDINGLY, HE SUBMITTED THAT THE MATTER MAY BE RESTORED TO THE ASSESSING OFFICER FOR COMPUTING CAPITAL GAINS AS WELL AS DEDUCTION U/S. 54 OF THE ACT AFRESH. T HE LD A.R ALSO PLACED RELIANCE ON SEVERAL CASE LAWS TO CONTEND THAT BOTH THE FLATS PURCHASED AT LIVING ESSENCE SHOULD BE CONSIDERED AS A RESIDENTIAL HOUSE FOR THE PURPOSE OF COMPUTING DEDUCTION U/S 54 OF THE ACT. 4. WE HAVE HEARD LEARNED DEPARTMENTAL REPR ESENTATIVE AND PERUSED THE RECORD. HAVING REGARD TO THE SUBMISSIONS MADE BY THE ASSESSEE, WE FIND MERIT IN THE SUBMISSIONS SO MADE. ACCORDINGLY, WE SET ASIDE THE ORDER PASSED BY THE LEARNED CIT(A) AND RESTORE THE ISSUE S TO THE FILE OF THE ASSESSING OFFICER . AS SUBMITTED BY LD A.R THE LONG TERM CAPITAL GAIN ON SALE OF TWO FLATS SHOULD BE COMPUTED SEPARATELY AND THE DEDUCTION U/S. 54 OF THE ACT MAY BE CONSIDERED AGAINST THE NEW FLATS AS PER SUBMISSIONS MADE BY LEARNED AR (SUPRA). AFTER SHASHI G. NOTANI 3 C ONSIDERING THE INFORM ATION AND EXPLANATION S FURNISHED BY THE ASSESSEE, THE ASSESSING OFFICER MAY TAKE APPROPRIATE DECISION IN ACCORDANCE WITH LAW. 5. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BE EN PRONOUNCED IN TH E COURT ON 15 . 2 .201 7. SD/ - SD/ - (PAWAN SINGH ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 15 / 2 / 20 1 7 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) PS ITAT, MUMBAI