NEELAM N. CHHABRIA, MUMBAI V. ITO 24(2)(1), MUMBAI

ITA 8732/MUM/2010

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3609 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-07-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 14-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIVAJI B GHODE
• Assessee Lawyers: M SUBRAMANIAN
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI B BENCH, MUMBAI BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER. ITA. NO. 8732/MUM/2010 (ASSESSMENT YEAR:2006-07) NEELAM N. CHHABRIA B-503, SKY WALKER CHS LTD., 4 TH CROSS, LOKHANDWALLA COMPLEX, ANDHERI (W), MUMBAI 400 053 APPELLAN T VS. INCOME TAX OFFICER, 24(2)(1), MUMBAI RESPONDENT PAN: AADPC1242K /BY APPELLANT : SHRI M. SUBRAMANIAN, A.R. /BY RESPONDENT : SHRI SHIVAJI B. GHODE, D.R. /DATE OF HEARING : 03.08.2016 /DATE OF PRONOUNCEMENT : 23.08.2016 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-34, MUMBAI, DA TED 24.02.2010 FOR A.Y. 2009-10 ON FOLLOWING GROUND: ITA NO.8732/MUM/10 A.Y. 06-07 [NEELAM M. CHHABRIA VS. ITO] PAGE 2 1. THE LEARNED CIT(APPEALS) WAS NOT JUSTIFIED IN CONFIRMING THE ACTION OF THE LEARNED ITO IN RESTRIC TING THE EXEMPTION U/S 54 TO RS.25,24,280/- IN PLACE OF RS.42,26,650/- CLAIMED BY THE APPELLANT. ACCORDING LY, HE HAS ERRED IN BRINGING TO TAX AN AMOUNT OF RS.17,02,370/- AS LONG TERM CAPITAL GAINS. 2. ASSESSEE HAS CHALLENGED THE ASSESSMENT OF CAPITAL G AIN ON SALE OF RESIDENTIAL HOUSE AT RS.17,02,370/- AS AGAI NST NIL RETURN FILED BY ASSESSEE. THE STAND OF ASSESSEE HAS BEEN THAT ASSESSING OFFICER HAS NOT CONSIDERED THE REINVESTMENT IN HOUS E OF RS.52LACS, WHEREAS CAPITAL GAIN ON SALE OF HOUSE WA S RS.42,26,650/-. ACCORDING TO ASSESSEE, ASSESSING O FFICER HAS ERRED IN RESTRICTING THE DEDUCTION U/S.54(2) OF THE ACT TO RS.25,24,280/- INSTEAD OF RS.42,26,650/- CLAIMED BY ASSESSEE. ASSESSING OFFICER OBSERVED THAT OUT OF RS.52LACS IN VESTMENT IN NEW HOUSE RS.29,50,000/- WAS TAKEN AS LOAN FROM BAN K ONLY RS.22,50,000/- WAS INVESTED OUT OF SALE CONSIDERATI ON. ASSESSING OFFICER AFTER CONSIDERING THE REGISTRATION CHARGES AND STAMP DUTY HAS RESTRICTED THE DEDUCTION U/S.54(2) OF THE ACT T O THE EXTENT OF RS.25,24,280/-. 2.1 IN APPEAL, STAND OF ASSESSEE HAS BEEN THAT FACT S SHOULD BE CONSIDERED IN TOTALITY AND REPAYMENT OF LOAN OF RS. 19,50,000/- SHOULD ALSO BE CONSIDERED FOR ALLOWING DEDUCTION U/ S.54(2) OF THE ACT. CIT(A) HELD THAT IN VIEW OF PLAIN LANGUAGE OF SECTION 54(2) OF THE ACT THAT THE AMOUNT NOT UTILIZED FOR PURCHASE O F NEW ASSET SHALL BE CHARGED TO INCOME TAX. ASSESSING OFFICER WAS NOT JUSTIFIED IN CONSIDERING THE TOTAL INVESTMENT IN NE W RESIDENTIAL HOUSE U/S.54(2) OF THE ACT AMOUNTED TO RS.52LACS, W HEREBY CAPITAL GAIN ON SALE OF OLD RESIDENTIAL HOUSE WAS O NLY ITA NO.8732/MUM/10 A.Y. 06-07 [NEELAM M. CHHABRIA VS. ITO] PAGE 3 RS.42,26,650/-. IN VIEW OF THIS, ASSESSING OFFICER WAS NOT JUSTIFIED IN RESTRICTING THE DEDUCTION U/S.54(2) OF THE ACT TO RS.25,24,280/- INSTEAD OF RS.42,26,650/- AS CLAIMED BY ASSESSEE. ASSESSING OFFICER IS DIRECTED ACCORDINGL Y. 3. IN THE RESULT, THE APPEAL FILED BY ASSESSEE IS A LLOWED. PRONOUNCED IN THE OPEN COURT ON THIS THE 23 RD DAY OF AUGUST, 2016. SD/- SD/- ( RAJESH KUMAR ) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBE R MUMBAI: DATED 23/08/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. / ASSESSEE 3. !'!#$ % / CONCERNED CIT 4. %- / CIT (A) 5.-./00#$, #$, !' / DR, ITAT, MUMBAI 6./4567 / GUARD FILE. BY ORDER / , / !, #$, !'