Sri Chandra Mohan Gupta, Kolkata V. I.T.O Wd - 30(2),kolkata., Kolkata

MA 211/KOL/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1195 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 08-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAYANTA KHANRA
• Keywords: Capital receipt
• Section: 54F; 254(2); 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B, BENC H KOLKATA BEFORE SHRI S.S.GODARA, JM & DR. A.L.SAINI, AM M.A. NO.211/KOL/2019 (ARISING OUT OF ./ITA NO.1282/KOL/2013) ( / ASSESSMENT YEAR: 2009-10) SHRI CHANDRA MOHAN GUPTA 3, ANIL ROY ROAD, KOLKATA VS. ITO, WARD-30(2), KOLKATA ./ ./PAN/GIR NO.: AECPG 0836 Q (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI AKKAL DUDHWEWALA, FCA RESPONDENT BY : SHRI JAYANTA KHANRA, JCIT SR. DR / DATE OF HEARING : 06/12/2019 /DATE OF PRONOUNCEMENT : 18/12/2019 / O R D E R PER DR. A. L. SAINI: BY WAY OF THE CAPTIONED APPLICATION, THE ASSESSEE HAS SOUGHT TO POINT OUT THAT A MISTAKE APPARENT FROM RECORD WITHIN THE MEAN ING OF SECTION 254(2) OF THE INCOME TAX ACT (IN SHORT THE ACT) HAS CREPT IN TH E ORDER OF THE TRIBUNAL DATED 23.10.2019. SHRI CHANDRA MOHAN GUPTA MA NO. 211/KOL/2019 (ARISING OUT OF I.T.A. NO. 1282/KOL/2013) A.Y: 2009-10 P PP PA AA AG GG GE EE E | || | 2 22 2 2. THE CASE OF THE ASSESSEE IN THIS MISCELLANEOUS A PPLICATION IS THAT THE ASSESSEE HAD FILED AN APPEAL AGAINST THE ORDER PASSED BY THE CIT(A)-XIV, KOLKATA DATED 14 TH MARCH, 2013 FOR THE A.Y. 2009-10 WHICH WAS DISPOSE D BY B BENCH OF THE TRIBUNAL ON 23.10.2019 IN ITA NO. 1282/KOL/2013. IN THE INCOME TAX ASSESSMENT U/S 143(3), THE ASSESSING OFFICER HAD ASSESSED RS. 75,00,000/- AS ASSESSEES INCOME UNDER THE HEAD OTHER SOURCES. ON APPEAL, THE LD. CIT(A) HAD UPHELD THE ORDER OF THE ASSESSING OFFICER. 3. IN THE GROUNDS OF APPEAL TAKEN BEFORE THE TRIBUN AL, THE ASSESSEE OBJECTED TO THE LD. CIT(A)S ACTION OF UPHOLDING THE ASSESSING OFFI CERS ORDER ASSESSING THE SAID SUM UNDER THE HEAD OTHER SOURCES. IN THE GROUNDS OF APPEAL THE ASSESSEE HAD CLAIMED THAT THE SUM OF RS. 75,00,000/- WAS RECEIVE D BY THE ASSESSEE FOR TRANSFER OF HIS GOODWILL AND THEREFORE THE SAID AMOUNT COULD NOT BE ASSESSED UNDER THE RESIDUARY HEAD OF INCOME. THE ASSESSEE HAD ALSO RAI SED A GROUND NO. 4 IN WHICH IT WAS CLAIMED THAT SINCE THE SUM RECEIVED WAS INVESTE D IN CAPITAL GAIN DEPOSIT SCHEME ACCOUNT, EXEMPTION PERMISSIBLE IN LAW U/S 54 OF THE ACT SHOULD ALSO BE ALLOWED TO THE ASSESSEE. IN THE COURSE OF HEARING OF APPEAL, THE A/R OF THE ASSESSEE HAD FILED DOCUMENTS EVIDENCING INVESTMENTS MADE IN MAKING DEPOSIT WITH CANARA BANK UNDER CGDS SCHEME AND WITH REFERENCE TO THESE DOCUMENTS THE A/ R OF THE ASSESSEE ORALLY AS WELL AS IN THE WRITTEN NOTE FILED CLAIMED THAT IF T HE RECEIPT IS NOT HELD TO BE CAPITAL RECEIPT BUT LIABLE TO ASSESSMENT UNDER THE HEAD LO NG TERM CAPITAL GAIN, THEN EXEMPTION U/S 54F SHOULD BE ALLOWED. THE BENCH IN ITS ORDER HAS ALLOWED GROUND NOS. 1 TO 3 OF THE APPEAL BY HOLDING THAT THE SUM OF RS. 75 LACS RECEIVED BY THE ASSESSEE WAS TOWARDS TRANSFER OF GOODWILL AND THEREFORE CHARGEABLE TO TAX UNDER THE HEAD CAP ITAL GAIN BUT INADVERTENTLY THE BENCH HAS NOT ADJUDICATED GROUND NO. 4 WHICH RELATE S TO EXEMPTION U/S 54F OF THE ACT. SHRI CHANDRA MOHAN GUPTA MA NO. 211/KOL/2019 (ARISING OUT OF I.T.A. NO. 1282/KOL/2013) A.Y: 2009-10 P PP PA AA AG GG GE EE E | || | 3 33 3 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. WE NOTE THAT IN TRIBUNALS ORDER DATED 23.10.2019 THE GROUND NO. 4 HAS NOT BEEN EXPRESSLY ADJUDICATED THEREFORE, IT IS AN APPARENT MISTAKE CREPT IN THE ORDER OF THE TRIBUNAL. NOW WE RECTIFY THIS MISTAKE. SO FAR THE ASSESSEES CLAIM FOR EXEMPTION U/S 54F IS CONCERNED, WHICH ALSO SHOULD HAVE BEEN A LLOWED BY THE TRIBUNAL SINCE THE CONDITIONS PRESCRIBED IN THAT SECTION WERE FULF ILLED BY THE ASSESSEE, THEREFORE, THE ASSESSEE IS ENTITLED TO CLAIM EXEMPTION U/S 54F OF THE ACT. THEREFORE, WE DIRECT THE ASSESSING OFFICER TO ALLOW EXEMPTION U/S 54F OF THE ACT. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 18.12.201 9. SD/- ( S.S.GODARA ) SD/- (A.L.SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 18/12/2019 ( SB, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. SHRI CHANDRA MOHAN GUPTA 2. ITO, WARD-30(2), KOLKATA 3. C.I.T(A)- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 6. GUARD FILE. TRUE COPY BY ORDER ASSIST ANT REGISTRAR ITAT, KOLKA TA BENCHES SHRI CHANDRA MOHAN GUPTA MA NO. 211/KOL/2019 (ARISING OUT OF I.T.A. NO. 1282/KOL/2013) A.Y: 2009-10 P PP PA AA AG GG GE EE E | || | 4 44 4