Income TAx Officer Ward-6(2)(3), Bangalore V. Mr.Amrutlal Pachan Patel , Bangalore

ITA 833/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1396 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 16-03-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Additional evidence; Set aside; Capital Gains

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI N.V VASUDEVAN, VICE PRESIDNET AND SHRI B.R BASKARAN, ACCOUNTANT MEMBER ITA NO.833/BANG/2018 ASSESSMENT YEAR : 2012-13 THE INCOME-TAX OFFICER, WARD-6(2)(3), BANGALORE. VS. MR. AMRUTLAL PACHAN PATEL, PATEL TIMBER, NO.2/4, 1 ST PHASE, PEENYA INDUSTRIAL AREA, BANGALORE-560 058. PAN AAZPP 1174 H. APPELLANT RESPONDENT CO NO.79/BANG/2018 ASST. YEAR : 2012-13 (BY ASSESSEE ) APPELLANT BY : DR. P.V PRADEEP KUMAR, ADDL. CIT RESPONDENT BY : SHRI H SIVAPRASAD REDDY, C.A DATE OF HEARING : 06.06.2019 DATE OF PRONOUNCEMENT : 12.06.2019 O R D E R PER B.R BASKARAN, ACCOUNTANT MEMBER THE REVENUE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 30/10/2017 PASSED BY LD CIT(A)-6, BENGALURU AND IT RELATES TO ASST. YEAR 2013. 2. THE REVENUE IS AGGRIEVED BY THE ACTION OF LD CIT (A) IN GRANTING RELIEF ALLEGEDLY BY ADMITTING ADDITIONAL E VIDENCES IN VIOLATION OF RULE 46A OF THE ITAT RULES. ITA NO.833/BANG/2018 PAGE 2 OF 6 3. WE HEARD PARTIES AND PERUSED THE RECORD. 4. IN THE RETURN OF INCOME FILED, THE ASSESSEE CLAI MED EXEMPTION U/S 54D OF THE ACT, WHICH IS ALLOWABLE AGAINST THE CAPITAL GAINS ARISING ON SALE OF INDUSTRIAL UNDERTAKING. THE AO NOTICED THAT THERE IS DIFFERENCE IN THE ADDRESS OF THE PROPERTY WHICH WAS CLAIMED TO BE INDUSTRIAL UNDERTAKING AND WHICH WAS ACTUALLY SOLD. SINCE THE ASSESSEE DID NOT CLARIFY THE POSSESSION, THE AO DIS ALLOWED THE CLAIM OF DEDUCTION U/S 54D OF THE ACT. THE LD CIT(A) NOT ICED THAT THERE HAS BEEN CHANGE IN THE ADDRESS OF THE PLOT AS PER K ARNATAKA GAZETTE NO.C1429SPQ211 DATED 22/2/2012. HE ALSO NOT ICED THAT THE ADDRESS AND WARD NO. OF VILLAGE PEENYA, DASARAH ALLI HAVE BEEN USED INTERCHANGEABLY BY THE REVENUE AUTHORITIES. ACCORDINGLY THE LD CIT(A) HELD THAT DISALLOWANCE OF DEDUCTION CLAIM ED US/ 54D IS NOT SUSTAINABLE. ACCORDINGLY HE ALLOWED THE CLAIM OF THE ASSESSEE. THE REVENUE IS AGGRIEVED BY THE SAID DECISION OF LD CIT(A) ON THE PLEA THAT THE LD CIT(A) HAS ADMITTED ADDITIONAL EVI DENCES IN VIOLATION OF RULE 46A OF THE IT RULES. 5. THE LD DR SUBMITTED THAT THE LD CIT(A) HAS ADMIT TED ADDITIONAL EVIDENCE WITHOUT CONFRONTING THE SAME BY THE AO. HE FURTHER SUBMITTED THAT THE ASSESSEE HAD CLAIMED EXE MPTION U/S 54D OF THE ACT IN SUCCEEDING ASST. YEAR AND THE ASS ESSEE HAS ACTUALLY FILED THE RELEVANT DETAILS ONLY IN THAT Y EAR. THE LD DR SUBMITTED THAT IT IS WELL SETTLED PROPOSITION THAT EACH ASST. YEAR IS SEPARATE AND THE PRINCIPLE OF RES JUDICATA WILL NO T APPLY TO INCOME-TAX PROCEEDINGS. ACCORDINGLY, THE LD DR SUB MITTED THAT THE ASSESSEE SHOULD HAVE FURNISHED NECESSARY DETAILS IN THIS ASST. YEAR ITA NO.833/BANG/2018 PAGE 3 OF 6 ALSO BEFORE THE AO. ACCORDINGLY HE SUBMITTED THAT THE LD CIT(A) SHOULD HAVE CONFRONTED THE DETAILS WITH THE AO. 5. ON THE CONTRARY, THE LD AR SUBMITTED THAT THE AS SESSEE HAS FURNISHED ALL THE DETAILS BEFORE THE AO DURING THE COURSE OF ASST. PROCEEDINGS OF THE YEAR UNDER CONSIDERATION. HE SU BMITTED THAT THE AO, HOWEVER, HAS FAILED TO CONSIDER THOSE DETAILS. HE SUBMITTED THAT THE LD CIT(A) HAS EXAMINED THOSE DETAILS AND A CCORDINGLY GIVEN RELIEF TO THE ASSESSEE. ACCORDINGLY HE SUBMITTED T HAT THERE IS NO VIOLATION OF RULE 46A OF THE ITAT RULES, AS CONTEND ED BY THE REVENUE. THE LD AR FURTHER SUBMITTED THAT THE ASSE SSEE HAS CLAIMED EXEMPTION ON THE SALE OF VERY SAME INDUSTRI AL PLOT U/S 54D OF THE ACT IN THE SUCCEEDING ASST. YEAR AND THE SAM E HAS BEEN ALLOWED BY THE AO. THE LD AR FURTHER SUBMITTED TH AT THE BROTHER OF THE ASSESSEE WAS THE CO-OWNER OF THE PLOT AND HE HA D ALSO CLAIMED SIMILAR EXEMPTION ON HIS SHARE IN ASST. YEAR 2012-1 3 AND 2013-14. HE SUBMITTED THAT THE CLAIM MADE BY THE ASSESSEES BROTHER HAS BEEN ALLOWED BY HIS AO. ACCORDINGLY THE AR SUBMITT ED THAT THERE IS NO DISPUTE WITH REGARD TO THE NATURE OF LAND AS WEL L AS ADDRESS OF THE LAND AND HENCE THE ORDER PASSED BY LD CIT(A) DO ES NOT CALL FOR ANY INTERFERENCE. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. ADMITTEDLY THE AO HAS NOT EXAMINED THE RELEVANT DET AILS RELATING TO DEDUCTION CLAIMED BY THE ASSESSEE U/S 54D OF THE AC T DURING THE YEAR UNDER CONSIDERATION. IT IS AN ADMITTED FACT T HAT THE AO HAS ALLOWED DEDUCTION U/S 54D IN THE SUCCEEDING ASST. Y EAR IN RESPECT OF VERY SAME PLOT ON WHICH THE DEDUCTION WAS CLAIME D DURING THE ITA NO.833/BANG/2018 PAGE 4 OF 6 YEAR UNDER CONSIDERATION. HENCE, THE ISSUE UNDER C ONSIDERATION BOILS DOWN TO ONLY EXAMINATION OF RELEVANT DETAILS FOR THE YEAR UNDER CONSIDERATION. 7. THE LD AR HAS SUBMITTED THAT THE AO HAS ALREADY CONSIDERED RELEVANT FACTS IN THE SUCCEEDING YEAR AND HENCE THE AO SHALL ALLOW DEDUCTION U/S 54D OF THE ACT FOR THE YEAR UNDER CON SIDERATION ALSO, IF THE MATTER IS RESTORED TO THE HIS FILE. UNDER T HE SET OF FACTS WE ARE OF THE VIEW THAT NO PREJUDICE WOULD BE CAUSED TO TH E ASSESSEE IF THIS ISSUE IS RESTORED TO THE FILE OF THE AO FOR THE PUR POSE OF EXAMINING THE RELEVANT DETAILS RELATING TO DEDUCTION U/S 54D OF THE ACT. ACCORDINGLY WE SET ASIDE THE ORDER PASSED BY THE LD CIT(A) AND RESTORE THE ISSUE TO THE FILE OF THE AO FOR EXAMINI NG RELEVANT DETAILS RELATING TO DEDUCTION CLAIMED U/S 54D OF THE ACT. 8. IN THE CROSS OBJECTION, THE ASSESSEE HAS SUPPORT ED THE ORDER PASSED BY THE LD CIT(A). IN VIEW OF THE ORDER PASS ED BY US IN THE APPEAL OF THE REVENUE, THE CROSS OBJECTION DOES NOT REQUIRE ADJUDICATION. 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS TREATED AS ALLOWED AND THE CROSS-OBJECTION FILED BY THE ASSESS EE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 T H JUNE, 2019. SD/ - (N.V VASUDEVAN) VICE PRESIDENT SD/ - (B.R BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED, 12 TH JUNE, 2019. / VMS / ITA NO.833/BANG/2018 PAGE 5 OF 6 COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3 . THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER A SST. REGISTRAR, ITAT, BANGALORE. ITA NO.833/BANG/2018 PAGE 6 OF 6 1. DATE OF DICTATION 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO SR.P.S .. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER .. 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE.. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO .. 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DATE ON WHICH ORDER GOES FOR XEROX & ENDORSEMENT 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 11. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER . 12. THE DATE ON WHICH THE FILE GOES TO DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER . 13. DATE OF DESPATCH OF ORDER. ..