MADHU HASMUKH MEHTA, MUMBAI V. ITO WARD -19(2)(NOW ASSESSED BY CIT-30, MUMBAI, MUMBAI

MA 454/MUM/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5619 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-12-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 07-08-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PRATIK H. MEHTA
• Section: 54; 54F; 201; 20

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) & SHRI RAMLAL NEGI (JM) M.A.NO. 454/MUM/2019 ARISING OUT OF I.T.A. NO. 845 /MUM/ 201 9 (ASSESSMENT YEAR 20 15 - 1 6 ) MRS. MADHU HASMUKH MEHTA 101, MANOKAMNA BUILDING CHEMBUR EAST MUMBAI - 400 071. PAN : AFTPM4284L V S . ACIT - 1((2) NOW CIT - 30 207, MATRU MANDIR TARDEO ROAD, GRANT ROAD - WEST MUMBAI - 400 007. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI PRATIK H. MEHTA DEPARTMENT BY SHRI V. VINOD KUMAR DATE OF HEARING 04 . 1 0 . 201 9 DATE OF PRONOUNCEMENT 09 . 1 2 . 201 9 O R D E R PER SHAMIM YAHYA (AM) : - THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE IS ARISING OUT OF THE ITAT ORDER IN ITA NO. 845/MUM/2019 FOR A.Y. 2015 - 16 VIDE ORDER DATED 6.5.2019. 2. IN THE AFORESA ID ORDER ISSUE WAS ELIGIBILITY OF THE ASSESSEE FOR DEDUCTION U/S. 54 OF THE I.T. ACT REGARDING UNUTILIZED AMOUNT OF RS. 7,70,000/ - WHICH WAS REQUIRED TO BE DEPOSITED IN THE CAPITAL GAIN ACCOUNT SCHEME OF ANY BANK. SINCE THE ASSESSEE KEPT UNTILIZED AMOUNT OF RS. 7,70,000/ - IN HER SAVINGS BANK ACCOUNT INSTEAD OF DEPOSITING THE SAME IN A SPECIFIED CAPITAL GAIN SCHEME ACCOUNT, THE ASSESSING OFFICER DENIED DEDUCTION OF RS. 7,70,000/ - . THE ITAT IN THE AFORESAID CASE CONFIRMED THE ORDER OF LEARNED CIT(A) WHERE T HE ASSESSEE WAS DENIED BENEFIT OF INVESTMENT OF RS. 7,70,000/ - . THE ITAT HAS CONSIDERED THE ISSUE BY RELYING UPON THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF HUMAYUN SULEMAN MERCHANT (387 ITR 421), WHEREIN IT WAS HELD THAT WHERE ASSESSEE HAD F ILED RETURN OF INCOME AND ENTIRE AMOUNT WHICH WAS SUBJECTED TO CAPITAL GAIN TAX HAD NOT BEEN UTILIZED FOR PURPOSE OF CONSTRUCTION MRS.MADHU HASMUKH MEHTA 2 OF NEW HOUSE NOR WERE UNUTILIZED AMOUNTS DEPOSITED IN NOTIFIED BANK ACCOUNTS BEFORE FILING RETURN OF INCOME, THE ASSESSING OF FICER RIGHTLY RESTRICTED EXEMPTION UNDER SECTION 54F OF THE ACT PROPORTIONATELY TO AMOUNT INVESTED. THE ITAT HAS FURTHER RELIED UPON THE DECISION OF HON'BLE APEX COURT IN THE CASE OF M/S. DILIP KUMAR & COMPANY (CIVIL APPEAL NO. 3327 OF 2007 VIDE ORDER DA TED 30.7.2018). 3. NOW THE ASSESSEE BY THIS MISCELLANEOUS APPLICATION CONTEND S THAT THIS ITAT IN ANOTHER CASE IN ITA NO. 4756 & 4748/MUM/2017 IN THE CASE OF GEETA AJAY GAWLI AND SHRI YOGESH ARUN GAWLI HAD IN SIMILAR SITUATION GRANTED RELIEF TO THE ASSES SEE. HENCE, THE ASSESSEE PRAYS THAT THE ITAT ORDER IN THIS CASE SHOULD BE RECAL L ED AND HEARD AFRESH IN AS MUCH AS THE ASSESSEE HAS A GOOD CASE AND IF SUFFICIENT OPPORTUNITY IS GRANTED THE ASSESSEE WILL PROVE THAT THE APPEAL OF THE DEPARTMENT DOES NOT HAVE MERITS ON THE FACTS. 4. UPON CAREFUL CONSIDERATION, WE FIND THAT THE AFORESAID DECISION OF THE ITAT REFERRED BY LEARNED COUNSEL OF THE ASSESSEE WAS NOT REFERRED OR SITED BY LEARNED COUNSEL BEFORE THE ITAT. HENCE, THE DECISION OF THE ITAT WHICH WAS NEVER REFERRED BEFORE ANOTHER ITAT BENCH CANNOT BECOME PRECEDENT. MOREOVER AS REFERRED ABOVE DECISION IN THE PRESENT CASE HAS BEEN RENDERED BY THE ITAT AFTER CONSIDERING THE HON'BLE JURISDICTIONAL HIGH COURT AND HON'BLE APEX COURT DECISIONS. IN THIS VIEW OF THE MATTER, WE FIND THAT BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSESSEE SEEKS REVIEW OF THE ORDER NOT PERMISSIBLE IN LAW. HENCE, THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE STANDS DISMISSED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 09 . 1 2 . 201 9 . SD/ - SD/ - ( RAMLAL NEGI ) (SH A MIM YAHYA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 9 / 1 2 / 20 1 9 MRS.MADHU HASMUKH MEHTA 3 COPY OF THE ORDER FORWARDED TO : 1. T HE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI