ITO WD 24(1)(3), MUMBAI v. ANOOP WADHWA, MUMBAI

ITA 4306/MUM/2009 | 2006-2007
Pronouncement Date: 21-05-2010 | Result: Allowed

Appeal Details

RSA Number 430619914 RSA 2009
Assessee PAN INMAY2005O
Bench Mumbai
Appeal Number ITA 4306/MUM/2009
Duration Of Justice 10 month(s) 5 day(s)
Appellant ITO WD 24(1)(3), MUMBAI
Respondent ANOOP WADHWA, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 21-05-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted A
Assessment Year 2006-2007
Appeal Filed On 16-07-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A : MUMBAI BEFORE SHRI D.MANMOHAN HONBLE VICE PRESIDENT AND SHRI J.SUDHAKAR REDDY ACCOUNTANT MEMBER ITA. NO. 4306/MUM/2009 ASSESSMENT YEAR 2006-2007 ITO-24 (1) (3) MUMBAI 400 051. VS. SHRI ANOOP WADHWA MUMBAI 400 064 PAN AAMPW-8755-E (APPELLANT) (RESPONDENT) FOR APPELLANT : S/SHRI SS. RANA/PEEYUSH JAIN(D R) FOR RESPONDENT : -NONE- ORDER PER D.MANMOHAN V.P. 1. THIS APPEAL FILED AT THE INSTANCE OF THE ASSES SEE IS DIRECTED AGAINST THE ORDER DATED 12-5-2009 PASSED B Y THE CIT(A)- XXIV MUMBAI AND IT PERTAINS TO THE ASSESSMENT YEAR 2006-2007. FOLLOWING GROUNDS WERE URGED BY THE REVENUE. 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE CIT (A) ERRED IN DIRECTING THE A.O. TO TAKE THE DATE OF PAYMENT OF THE LAST INSTALLMENT AS THE DATE OF PURCHASE AND COMPUTE THE CAPITAL GAIN ON LONG TERM CAPITAL GAIN INSTEAD OF SHORT TERM CAPITAL GAIN DETERMINED BY THE A.O. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE CIT (A) ERRED IN RELYING ON THE ADDITIONAL EVI DENCES FILED BY THE ASSESSEE DURING THE APPELLATE PROCEEDI NGS WITHOUT CALLING FOR A REMAND REPORT IN CONTRAVENTIO N OF RULE 46A OF I.T. RULES 1962. 2 3. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE ASSESSIN G OFFICER BE RESTORED. 2. THOUGH NOTICES WERE SENT TO THE ASSESSEE BY RPA D NONE APPEARED ON BEHALF OF THE ASSESSEE. THEREFORE WE P ROCEED TO DISPOSE OF THE APPEALS EX-PARTE QUA THE ASSESSEE. 3. WE HAVE HEARD THE LEARNED DR AND CAREFULLY PERU SED THE RECORD. 4. IN RESPECT OF THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION THE ASSESSEE DECLARED TOTA L INCOME OF RS. 2.16 LAKHS. HE HAS SOLD A FLAT IN DELHI IN MAY 2005 ON WHICH HE WORKED OUT LONG TERM CAPITAL LOSS OF RS.8 98 887/-. DURING THE COURSE OF SCRUTINY PROCEEDINGS THE ASSESSING OFFICER CALL ED UPON THE ASSESSEE TO FURNISH DETAILS WITH REGARD TO DATE OF PURCHASE OF THE PROPERTY COST OF THE ASSET AND THE DATE OF SALE. A SSESSEE SUBMITTED THE DOCUMENT FOR SALE AND PURCHASE OF THIS FLAT BUT DESPITE NUMBER OF OPPORTUNITIES ISSUED DURING THE COURSE OF SCRUTINY PROCEEDINGS THE ASSESSEE DID NOT FURNISH FURTHER DETAILS. THEREFORE THE ASSESSING OFFICER PROCEEDED TO EXAMINE THE FACTS AS AVAILABLE ON RECORD. HE NOTICED THAT AS PER THE SALE DEED DATED 5-5-2005 D ATE OF PURCHASE OF THE SAID FLAT WAS NOTED AS 5-4-2005 AND AS PER THE ASSESSEES OWN ADMISSION POSSESSION OF THE FLAT WAS RECEIVED ON 11 -10-2004 IN WHICH EVENT AMOUNT RECEIVED ON SALE OF THE ASSET IS ASSES SABLE TO TAX UNDER THE HEAD SHORT TERM CAPITAL GAINS. AFTER ADJUSTIN G THE COST PRICE AGAINST THE SALE CONSIDERATION ASSESSING OFFICER A RRIVED AT A CAPITAL GAIN OF RS.14 25 780/- WHICH WAS BROUGHT TO TAX IN THE ORDER PASSED UNDER SECTION 143 (3) OF THE ACT. 3 5. AGGRIEVED ASSESSEE CONTENDED BEFORE US THAT TH E ASSESSING OFFICER HAS NOT AFFORDED SUFFICIENT OPPOR TUNITY OF BEING HEARD. DURING THE COURSE OF HEARING IT WAS SUBMITTE D THAT ASSESSEE AGREED TO PURCHASE THE FLAT UNDER AN AGREEMENT DATE D 11-1-1995 AND RECEIVED THE OFFER OF POSSESSION VIDE LETTER DATED 6-7-2000. THE TOTAL COST OF THE FLAT WAS RS.30 24 220/- WHEREAS THE ASS ESSEE PAID MORE THAN 90% WHILE GETTING THE OFFER OF POSSESSION. SIN CE ASSESSEE WAS MOSTLY LIVING IN USA HE COULD NOT TAKE POSSESSION O F THE FLAT IMMEDIATELY. HOWEVER BY 15-3-2001 THE ASSESSEE HAD MADE TOTAL PAYMENT AND GOING BY THE SAID DATE SALE OF THE PROP ERTY TOOK PLACE AFTER A GAP OF MORE THAN 3 YEARS. LEARNED CIT(A) OB SERVED THAT TAKING ACTUAL POSSESSION OF THE FLAT AND ITS REGISTRATION ARE MERE FORMALITIES. IN THE LIGHT OF DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. BEENA K. JAIN 217 ITR 363 HE OBSERVED TH AT AGREEMENT OF PURCHASE OF A FLAT CAN BE SAID TO HAVE TAKEN PLACE WHEN FULL CONSIDERATION WAS PAID. THUS BY ADMITTING THE ADDIT IONAL EVIDENCE HE ACCEPTED THE PLEA OF THE ASSESSEE AND DIRECTED THE ASSESSING OFFICER TO RECOMPUTE THE CAPITAL GAIN ON SALE OF FLAT BY TAKIN G SUCH DATE AS DATE OF PURCHASE OF THE FLAT. 5. AGGRIEVED REVENUE IS IN APPEAL BEFORE US. THE CASE OF THE LEARNED DR IS THAT SUFFICIENT OPPORTUNITY WAS NOT G IVEN TO THE ASSESSING OFFICER BEFORE ADMITTING THE ADDITIONAL E VIDENCE AND THUS ADMISSION OF THE ADDITIONAL EVIDENCE IS IN CONTRAVE NTION OF RULE 46-A OF I.T. RULES 1962. 6. HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE WE DEEM IT FAIR AND REASONABLE TO SET ASIDE THE ISS UE TO THE FILE OF THE ASSESSING OFFICER WHO IS DIRECTED TO VERIFY THE ADD ITIONAL EVIDENCE AND RECONSIDER THE MATTER IN ACCORDANCE WITH LAW. NEEDL ESS TO OBSERVE THAT THE DECISION OF THE HONBLE BOMBAY HIGH COURT REFER RED TO BY THE LEARNED CIT(A) WOULD BE BORNE IN MIND WHILE RECONSI DERING THE ISSUE. 4 ITA. NO. 4306/MUM/2009 7. IN THE RESULT APPEAL FILED BY THE REVENUE IS T REATED AS ALLOWED FOR STATISTICAL PURPOSES. SD/- SD/- (J.SUDHAKAR REDDY) (D.MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI DATE 21 ST MAY 2010. VBP/- COPY TO 1. ITO 24 (1) (3) C-13 5 TH FLOOR PRATYAKSHKAR BHAVAN BANDRA-KURLA COMPLEX BANDRA EAST MUMBAI - 400 051. 2. SHRI ANOOP WADHWA 501 BLUE DIAMOND NEW LINK R OAD CHINCHOLI BUNDER MALAD WEST MUMBAI 400 064 PAN AAMPW-8755-E 3. CIT (A)-XXIV C-10 R.NO. 709 PRATYAKSHA KAR BH AVAN BANDRA- KURLA COMPLEX BANDRA EAST MUMBAI 400 051. 4. CIT-XXIV MUMBAI. 5. D.R. A BENCH 6. GUARD FILE. (TRUE COPY) BY ORDER ASST. REGISTRAR ITAT MUMBAI BENCHES MUMBAI.