DCIT CEN CIR 7(3), MUMBAI v. RADHIKA CHETAN MEHRA, MUMBAI

ITA 1059/MUM/2016 | 2010-2011
Pronouncement Date: 29-11-2017 | Result: Dismissed

Appeal Details

RSA Number 105919914 RSA 2016
Assessee PAN AIZPM8435A
Bench Mumbai
Appeal Number ITA 1059/MUM/2016
Duration Of Justice 1 year(s) 8 month(s) 28 day(s)
Appellant DCIT CEN CIR 7(3), MUMBAI
Respondent RADHIKA CHETAN MEHRA, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 29-11-2017
Appeal Filed By Department
Tags No record found
Order Result Dismissed
Bench Allotted Not Allotted
Tribunal Order Date 29-11-2017
Assessment Year 2010-2011
Appeal Filed On 02-03-2016
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D MUMBAI BEFORE SHRI D.T. GARASIA (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 1059 /MUM/2016 ASSESSMENT YEAR: 2010 - 11 DCIT CC - 7(3) ROOM NO. 655 6 TH FLOOR AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400020. VS. SMT. RADHIKA CHETAN MEHRA 20 MOTI MAHAL DINSHAW WACHA ROAD CHURCHGATE MUMBAI - 400020. PAN NO. AIZPM8435A APPELLANT RESPONDENT REVENUE BY : MS. B. PRUSETH DR ASSESSEE BY : MR. ANUJ KISNADWALA A R DATE OF HEARING : 13 /09/2017 DATE OF PRONOUNCEMENT : 29/11/2017 ORDER PER N.K. PRADHAN A.M. THIS IS AN APPEAL FILED BY THE REVENUE . THE RELEVANT ASSESSMENT YEAR IS 2010 - 11 . THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISS IONER OF INCOME TAX (APPEALS) - 49 MUMBAI AND ARISES OUT OF THE ASSESSMENT COMPLETED U/S 143(3) R.W.S 153A OF THE INCOME TAX ACT 1961 (THE ACT). 2. THE ONLY GROUND FILED BY THE REVENUE IN THIS APPEAL IS THAT THE LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.2 41 72 654/ - ON ACCOUNT OF LONG TERM CAPITAL GAIN RELYING ON THE DECISION OF THE BOMBAY HIGH COURT IN THE CASE OF ALL CARGO GLOBAL LOGISTIC LTD. WITHOUT APPRECIATING THE FACTS THAT THE ABOVE SAID DECISION OF THE HIGH COURT SMT. RADHIKA CHETAN MEHRA ITA NO. 1059/MUM/2016 2 HAS NOT BEEN ACCEPTED BY THE DEPARTMENT AND SLP HAS BEEN FILED IN THE SUPREME COURT AND THE SAME IS PENDING. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HER RETURN OF INCOME U/S 139 FOR T HE AY 2010 - 11 ON 25.07.2010 DECLARING TOTAL INCOME AT RS.1 63 480/ - . A SEARCH AND SEIZURE ACTION U/S 132(1) WAS CONDUCTED IN THE BHARTI SHIPYARD G ROUP OF CASES BY THE INCOME TAX DEPARTMENT ON 24.11.2011. THE ASSESSEE BEING AN ENTITY CONNECTED TO BHARTI SH IPYARD G ROUP WAS ALSO COVERED IN THE SAID SEARCH AND SEIZURE ACTION. IN COMPLIANCE TO THE NOTICE U/S 153A (1) (A) THE ASSESSEE FILED HER RETURN OF INCOME ON 16.05.2013 DECLARING TOTAL INCOME OF RS.1 63 480/ - . DURING THE YEAR THE ASSESSEE HAD SOLD HER 50 % SHARE IN RESIDENTIAL FLAT AT PALLONJI MANSION FOR CONSIDERATION OF RS.4 74 00 000/ - AND COMPUTED THE CAPITAL GAINS OF RS.2 87 79 106/ - AFTER REDUCING INDEXED COST OF ACQUISITION AND COST OF IMPROVEMENT . TO CLAIM EXEMPTION FROM CAPITAL GAIN S TAX THE ASSE SSEE MADE INVESTMENT U/S 54 AS FOLLOWS: SR. NO. NATURE OF INVESTMENT AMOUNT INVESTED RS. 1. AMOUNT INVESTED IN PURCHASE OF LAND AND BUILDING A PANGOLI LONAVALA 85 00 000/ - 2. AMOUNT DEPOSITED IN SBI CAPITAL GAIN DEPOSIT SCHEME 2 11 00 000/ - TOTAL AMOUNT INVESTED UNDER SECTION 54 2 96 00 000/ - IN THE ASSESSMENT ORDER THE AO HAS MADE THE FOLLOWING ADDITIONS WITH RESPECT TO INCOME FROM CAPITAL GAINS: 1. IN ABSENCE OF PROOF OF REGISTRATION AND OTHER CHARGES AND DOCUMENTS FOR COST OF IMPROV EMENT OF THE FLAT SOLD THE SAME IS DISALLOWE D ; SMT. RADHIKA CHETAN MEHRA ITA NO. 1059/MUM/2016 3 2. IN ABSENCE OF PROOF OF REGISTRATION AND OTHER CHARGES PA ID FOR PURCHASE OF LAND AT PANG OLI LO NAVALA THE SAME IS DISALLOWED. THE AO ALLOWED THE CLAIM OF THE ASSESSEE MADE WITH RESPECT TO THE AMOUNT INVESTED IN PURCHASE OF LAND AND BUILDING AT PANGOLI LONAVALA BUT DISALLOWED THE CLAIM MADE ON AMOUNT INVESTED IN PURCHASE OF FLAT AT 21 MOTI MAHAL CHURCHGATE MUMBAI - 400020 ON THE FOLLOWING GROUNDS: 1. THE ASSESSEE IS ENTITLED FOR EXEMPTION U/S 54 ONLY FOR ONE HOUS E PROPERTY. 2. THE ASSESSEE BY INVESTING IN LAND AND BUILDING AT PANGOLI LONAVALA MADE HER CHOICE OF THE ASSET FOR CLAIMING EXEMPTION U/S 54. 3. THE AMOUNT DEPOSITED IN CAPITAL GAIN SCHEME HAS BEEN UTILIZED FOR INVESTMENT IN PROPERTY OTHER THAN LAND AND BUIL DING AT PANGOLI LONAVALA. 4. AGGRIEVED BY THE ORDER OF THE AO THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A). WE FIND THE LD. CIT(A) HAS HELD : I FIND THAT THE APPELLANT HAS FILED RETURN OF INCOME U/S.139 FOR A.Y. 2010 - 11 ON 25.07.2010 DECLARING TOTAL INCOME OF RS163 480/ - . NO NOTICE U/S. 143(2) HAS BEEN ISSUED TILL THE EXPIRY OF THE TIME PRESCRIBED U/S 143 TO ISSUE SUCH NOTICE I.E. UPTO 30.9.2011. SEARCH WAS CONDUCTED U/S. 132(1) IN THE CASE OF THE APPELLANT ON 24/11/2011. THUS THE RETURN OF INC OME OF THE APPELLANT CAN BE TREATED AS HAVING BEEN ACCEPTED AND ATTAINED FINALITY. AS A RESULT NO ASSESSMENT WOULD BE PENDING ON THE DATE OF SEARCH I.E. 24/11/2011 AND THEREFORE THE ASSESSMENT FOR THIS ASSESSMENT YEAR HAD NOT ABATED. RELIANCE IS PLACED O N THE DECISION OF THE ITAT DELHI F BENCH IN THE CASE OF PACL INDIA LTD VS. ACIT CENTRAL CIRCLE - 4 DELHI IN ITA NO. 2637/DEL/2010 WHEREIN IT WAS HELD THAT THE TIME PERIOD FOR ISSUING NOTICE U/S 143(2) WAS ALREADY EXPIRED PRIOR TO THE DATE OF SEARCH. THE REFORE THE PROCEEDINGS DO GET ABATED BY VIRTUE OF PROVISO TO SECTION 153A. SMT. RADHIKA CHETAN MEHRA ITA NO. 1059/MUM/2016 4 THE APPELLANT HAS SUBMITTED THAT NO INCRIMINATING MATERIAL HAS BEEN FOUND DURING THE COURSE OF SEARCH TO JUSTIFY THE ADDITIONS M ADE IN THE ASSESSMENT ORDER U/S 153A OF THE ACT. I F IND THAT THE A.O. HAS MADE ADDITION OF RS.241 72 654/ - AS NOTED IN PARA 10.1 10.2 AND 10.3 ABOVE WITHOUT MAKING REFERENCE TO ANY INCRIMINATING MATERIAL FOUND AS A RESULT OF THE SEARCH. THE ADDITIONS AND DISALLOWANCES HAVE BEEN WORKED OUT ON THE BASIS O F DETAILS FILED BY THE ASSESSEE AND AIR INFORMATION AVAILABLE WITH THE AO. IN VIEW OF THE DECISION OF THE SPECIAL BENCH OF ITAT MUMBAI IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD. VS. DCIT (2012) 137 ITD 287(SB)(MUM) AS DISCUSSED IN PARA 6.2 ABOVE FO R A.Y.2009 - 10 SINCE THE ASSESSMENT HAD NOT ABATED FOR A.Y.2010 - 11 THERE IS NO JUSTIFICATION FOR MAKING ADDITIONS AMOUNTING TO RS.2 41 72 654/ - WITHOUT THE FOUNDATION OF ANY INCRIMINATING MATERIAL EMANATING FROM THESE SEARCH PROCEEDINGS. THEREFORE I AM OF THE CONSIDERED OPINION THAT THE ABOVE SAID ADDITIONS OF RS.2 41 72 654/ - WAS NOT JUSTIFIED AND THE SAME ARE DELETED . THIS GROUND IS ALLOWED. 5. BEFORE US THE LD. DR SUPPORTS THE ORDER PASSED BY THE AO WHEREAS THE LD. COUNSEL OF THE ASSESSEE RELIES ON THE ORDER PASSED BY THE LD. CIT(A). 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. EVEN IN THE CASE OF CIT VS. GURINDER SINGH BAWA (2016) 386 ITR 483 (BOM) THE ASSESSMENT WAS U/S 143(1) AND THE HONBLE HIGH COURT HEL D THAT THE SCOPE OF ASSESSMENT AFTER SEARCH U/S 153A WOULD BE LIMITED TO THE INCRIMINATING EVIDENCE FOUND DURING THE SEARCH AND NO FURTHER. THE HONBLE HIGH COURT HAS FOLLOWED THE RATIO LAID DOWN IN CIT VS. CONTINENTAL WAREHOUSING CORPORATION (2016) 374 I TR 645 (BOM) . RECENTLY T HE ABOVE POSITION OF LAW HAS BEEN REITERATED BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. SKS ISPAT & POWER LTD. (ITA NO. 1874 OF 2014 DATED 12.07.2017). SMT. RADHIKA CHETAN MEHRA ITA NO. 1059/MUM/2016 5 IN VIEW OF THE ABOVE DECISIONS WE UPHOLD THE ORDER OF THE LD. CIT(A). 7. IN THE RESULT THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29/11/2017. SD/ - SD/ - ( D.T. GARASIA ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 29/11/2017 RAHUL SHARMA SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR ITAT MUMBAI 6. GUARD FILE . BY ORDER //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT MUMBAI