Dr. Arvind S. Phadke, V. Additional Commissioner of Income-tax,

MA 74/PUN/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2902 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 9 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 20-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B C MALAKAR
• Assessee Lawyers: MRS M N KULKARNI
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER MA NO.74/PN/2014 (ARISING OUT OF ITA NO.236/PN/2013) (ASSESSMENT YEAR : 2008-09) DR. ARVIND S. PHADKE, 799/A, BHANDARKAR ROAD, PUNE 411 004. PAN : ABQPP0889B . APPELLANT VS. ADDL. COMMISSIONER OF INCOME TAX, RANGE- 5, PUNE. . RESPONDENT ASSESSEE BY : MRS. M. N. KULKARNI DEPARTMENT BY : MR. B. C. MALAKAR DATE OF HEARING : 06-02-2015 DATE OF PRONOUNCEMENT : 20-02-2015 ORDER PER G. S. PANNU, AM BY WAY OF THE PRESENT MISCELLANEOUS APPLICATION, AS SESSEE HAS CONTENDED THAT CERTAIN MISTAKES APPARENT FROM RECOR D WITHIN THE MEANING OF SECTION 254(2) OF THE INCOME TAX ACT, 1962 (IN SHOR T THE ACT) HAVE CREPT INTO ORDER OF THE TRIBUNAL DATED 30.04.2014. 2. THE MISCELLANEOUS APPLICATION READS AS UNDER :- HONOURABLE BENCH HAS NOTED THE FACTS IN PARA 5 OF THE ORDER. IN BRIEF THOSE ARE, ASSESSEE HAS MADE INVESTMENT U/S 54EC AS UNDER. ON 28.03.2008 RS. 50 LAKHS IN BONDS OF NHAI ON 22.08.2008 RS. 50 LAKHS IN BONDS OF REC LTD ASSESSEE CLAIMED THE DATE OF TRANSFER OF PROPERTY U /S 2(47) OF IT ACT 1961, AS DATE OF HANDING OVER POSSESSION TO PURCHASER I.E. 0 1.03.2008. WHEREAS ASSESSING OFFICER PREPONED THE SAME TO 13.0 9.2007 BEING DATE OF REGISTRATION OF DEVELOPMENT AGREEMENT. CIT (A) CONF IRMED ASSESSING OFFICER'S ACTION RESULTING BOTH THE INVESTMENTS U/S 54 EC BEYOND SIX MONTHS FROM THE DATE OF ALLEGED TRANSFER 13.09.2007. HONOURABLE BENCH IS PLEASED TO CONFIRM THE DATE OF TRANSFER AS 01.03.2008 AS CLAIMED BY THE ASSESSEE. MA NO.74/PN/2014 HOWEVER, IN PARA 5 OF THE ORDER, HONOURABLE BENCH M AY BE THROUGH INADVERTENCE HAS MISTAKEN IN NOTING 'AS PER THE ASSESSING OFFICER, THE INVESTMENT IN TH E BONDS OF NHAI MADE ON 28.03.2008 OF RS. 50 LAKHS WAS WITHIN THE SPECIFIED PERIOD' IN FACT IN PARA 4.4 AND 4.11 OF THE ASSESSING OFFICER'S ORDER, HE HAS CLEARLY STATED THAT THEY ARE OUT OF TIME AND NOT ELIGIBLE F OR EXEMPTION. ALSO THERE ARE TYPOGRAPHICAL ERRORS OF DATE OF PURC HASE OF REC BONDS, WRONGLY TAKEN AS 28.02.2008 AGAINST CORRECT DATE 22 .08.2008 BECAUSE OF MISTAKEN UNDERSTANDING THAT ASSESSING OF FICER HAS ALLOWED CLAIM OF INVESTMENT IN NHAI BONDS, INVESTED ON 28.03.2008 , IN PARA 20 OF THE ITAT ORDER APPELLANT'S CLAIM ONLY IN RESPECT OF REC BOND S OF RS. 50 LAKHS IS ALLOWED. APPELLANT IN FACT ALSO HAS RELIED ON PUNE ITAT DECISION IN CASE OF KIRANKUMAR POPATLAL SHAH ITA NO 285/PN/2013 DATED 31.01.2014 THERE IS MISTAKE APPARENT ON STATEMENT IN ITAT ORDE R THAT 'ASSESSING OFFICER HAS ALLOWED CLAIM OF NHAI BONDS PURCHASED ON 28.03.2008' IN FACT HAS NOT ALLOWED. SINCE ASSESSING OFFICER & CIT (A) HAVE NOT ALLOWED THE DEDUCTION FOR THE CLAIM OF PURCHASE OF NHAI BONDS, THE SAME NEED BE A DJUDICATED BY THE HONOURABLE BENCH. APPELLANT PRAYS FOR ADJUDICATION IN RESPECT OF THE SAME. 3. THE FIRST MISTAKE POINTED OUT BY THE ASSESSEE IS THAT IN PARA 5 OF THE ORDER, THE DATE OF INVESTMENT IN THE BONDS OF REC L TD. HAS BEEN NOTED AS 28.02.2008, WHICH IS INCORRECT. IT IS SUBMITTED TH AT THE CORRECT DATE IS 22.08.2008. IN THIS CONTEXT, REFERENCE HAS BEEN MA DE TO THE DISCUSSION IN THE ASSESSMENT ORDER TO SUBSTANTIATE THAT THE DATE OF I NVESTMENT OF RS.50,00,000/- MADE IN THE BONDS OF REC LTD. IS INDEED 22.08.2008. SECONDLY, IT IS POINTED OUT THAT IN PARA 5 ITSELF, THE TRIBUNAL HAS WRONGLY NOTED THAT THE INVESTMENT MADE IN THE BONDS OF NHAI ON 23.02.2008 OF RS.50,00 ,000/- WAS HELD BY THE ASSESSING OFFICER WITHIN THE PERIOD PRESCRIBED IN S ECTION 54EC OF THE ACT. IN THIS CONTEXT, THE LD. REPRESENTATIVE FOR THE ASSESS EE POINTED OUT THAT THE ASSESSING OFFICER DENIED THE CLAIM OF DEDUCTION U/S 54EC OF THE ACT IN RELATION TO BOTH THE INVESTMENTS I.E. INVESTMENT MADE IN THE BONDS OF NHAI ON 28.03.2008 OF RS.50,00,000/- AS WELL AS THE INVESTM ENT OF RS.50,00,000/- MADE IN THE BONDS OF REC LTD. ON 22.08.2008. IN TH IS MANNER, IT IS POINTED OUT THAT THE CIT(A) HAD ALSO SUSTAINED THE ACTION OF TH E ASSESSING OFFICER DENYING MA NO.74/PN/2014 THE CLAIM OF DEDUCTION U/S 54EC OF THE ACT WITH RES PECT TO BOTH THE INVESTMENTS. 4. THE AFORESAID ERRORS IN PARA 5 OF THE ORDER OF T HE TRIBUNAL POINTED OUT BY THE APPLICANT HAVE NOT BEEN CONTESTED OR CONTROVERT ED BY THE LD. DEPARTMENTAL REPRESENTATIVE. 5. IN-FACT, ASSESSEE HAD MADE INVESTMENT OF RS.50,0 0,000/- IN THE BONDS OF REC LTD. ON 22.08.2008. THE AFORESAID CLAIM OF THE ASSESSEE WAS DENIED ON THE GROUND THAT THE PROPERTY GIVING RISE TO CAPI TAL GAINS WAS TRANSFERRED ON 13.09.2007 AND THEREFORE THE INVESTMENTS MADE FOR C LAIMING EXEMPTION U/S 54EC OF THE ACT WERE NOT MADE WITHIN SIX MONTHS FRO M THE SAID DATE OF TRANSFER I.E. 13.09.2007. THE CLAIM OF THE ASSESSE E WAS THAT THE DATE OF TRANSFER OF PROPERTY HAS TO BE UNDERSTOOD AS 01.03. 2008 AND THEREFORE BOTH THE INVESTMENTS WERE WITHIN THE PERIOD OF SIX MONTH S FROM THE DATE OF TRANSFER AND THUS ELIGIBLE FOR THE CLAIM OF EXEMPTION U/S 54 EC OF THE ACT. THE TRIBUNAL IN ITS ORDER DATED 30.04.2014 (SUPRA) UPHELD THE PL EA OF THE ASSESSEE THAT THE DATE OF TRANSFER OF THE PROPERTY IS TO BE UNDERSTOO D AS 01.03.2008 AND AS A CONSEQUENCE, THE IMPUGNED INVESTMENTS IN THE BONDS OF NHAI AND REC LTD. QUALIFIED FOR EXEMPTION U/S 54EC OF THE ACT. HOWEV ER, THE TRIBUNAL INADVERTENTLY CONSIDERED THAT THE INVESTMENT OF RS. 50,00,000/- MADE IN THE INVESTMENT OF NHAI BONDS ON 28.03.2008 STOOD ALLOWE D BY THE ASSESSING OFFICER. THE TRIBUNAL MERELY DIRECTED FOR THE ALLO WANCE OF DEDUCTION U/S 54EC OF THE ACT IN RELATION TO THE INVESTMENT OF RS.50,0 0,000/- MADE IN THE BONDS OF REC LTD. ON 22.08.2008. THEREFORE, ON THIS ASPECT ALSO, THE ASSESSEE HAS POINTED OUT THAT THE ERROR NEEDS TO BE CORRECTED. MA NO.74/PN/2014 6. OSTENSIBLY, THE LD. DEPARTMENTAL REPRESENTATIVE CONVERGED WITH THE STAND OF THE ASSESSEE THAT THE AFORESAID MISTAKES A RE WITHIN THE PURVIEW OF SECTION 254(2) OF THE ACT. 7. AS A CONSEQUENCE, WE DIRECT THE FOLLOWING MODIFI CATION IN THE ORDER OF THE TRIBUNAL DATED 30.04.2014 (SUPRA). 8. THE FOLLOWING PORTION OF PARA 5 : 5. .. AS PER THE ASSESSING OFFICER, THE INV ESTMENT IN THE BONDS OF NHAI MADE ON 28.03.2008 OF RS.50,00,00 0/- WAS WITHIN THE SPECIFIED PERIOD WHEREAS THE BALANCE INVESTMENT OF RS.50,00,000/- MADE IN THE BONDS OF REC LTD. ON 28.02.2008 WAS BEYOND THE PERIOD PRESCRIBED IN SECTION 54EC OF THE ACT. ACCORDINGLY, HE ALLOWED E XEMPTION TO THE EXTENT OF RS.50,00,000/- RELATING TO THE INVESTMENT IN THE BO NDS OF NHAI AND THE BALANCE OF RS.50,00,000/- INVESTED IN THE BONDS OF REC LTD. ON 28.02.2008 WAS DENIED. THE CIT(A) HAS ALSO SUSTAINED THE ACTI ON OF THE ASSESSING OFFICER ON THE GROUND THAT THE INVESTMENT MADE IN T HE BOND OF REC LTD. OF RS.50,00,000/- ON 22.08.2008 WAS NOT WITHIN SIX MON THS FROM THE DATE OF TRANSFER OF ASSET, AND ACCORDINGLY CLAIM OF RS.50,0 0,000/- WAS DENIED. THE ASSESSEE IS IN APPEAL BEFORE US ON THE AFORESAID IS SUE. SHALL BE SUBSTITUTED BY THE FOLLOWING : 5. ... AS PER THE ASSESSING OFFICER, THE IN VESTMENTS IN THE BONDS OF NHAI MADE ON 28.03.2008 OF RS.50,00 ,000/- AND RS.50,00,000/- IN THE BONDS OF REC LTD. ON 22.08.20 08 WAS BEYOND THE PERIOD PRESCRIBED IN SECTION 54EC OF THE ACT. ACCO RDINGLY, HE DISALLOWED EXEMPTION RELATING TO THE INVESTMENT IN THE BONDS O F NHAI AND REC LTD. THE CIT(A) HAS ALSO SUSTAINED THE ACTION OF THE ASSESSI NG OFFICER AND ACCORDINGLY, THE ASSESSEE IS IN APPEAL BEFORE US ON THE AFORESAI D ISSUE. 9. SIMILARLY, FOLLOWING PORTION APPEARING IN PARA 2 0 OF THE ORDER : 20. IN THIS VIEW OF THE MATTER, THE INVEST MENTS IN THE BONDS OF REC LTD. OF RS.50,00,000/- MADE BY THE ASS ESSEE ON 22.08.2008 IS WITHIN THE PERIOD OF SIX MONTHS FROM THE DATE OF TR ANSFER AS PRESCRIBED IN SECTION 54EC OF THE ACT AND ACCORDINGLY THE ASSESSE E IS ELIGIBLE FOR DEDUCTION OF RS.50,00,000/- U/S 54EC OF THE ACT ALSO. MA NO.74/PN/2014 SHALL BE SUBSTITUTED BY THE FOLLOWING : 20. IN THIS VIEW OF THE MATTER, THE INVEST MENTS IN THE BONDS OF NHAI AND REC LTD. OF RS.50,00,000/- MADE B Y THE ASSESSEE ON 28.03.2008 AND 22.08.2008 RESPECTIVELY ARE WITHIN T HE PERIOD OF SIX MONTHS FROM THE DATE OF TRANSFER AS PRESCRIBED IN SECTION 54EC OF THE ACT AND ACCORDINGLY THE ASSESSEE IS ELIGIBLE FOR DEDUCTION OF RS.1,00,00,000/- U/S 54EC OF THE ACT. 10. AS A CONSEQUENCE, THE MISCELLANEOUS APPLICATION IS ALLOWED, AS ABOVE. ORDER PRONOUNCED ON 20 TH FEBRUARY, 2015. SD/- SD/- (SUSHMA CHOWLA) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 20 TH FEBRUARY, 2015. SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-III, PUNE; 4) THE CIT-III, PUNE; 5) THE DR A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE