THE INCOME TAX OFFICER, WARD2(3)(4), MUMBAI v. SHRI. JOY SURENDRA KAPOOR, MUMBAI

ITA 6458/MUM/2008 | 2005-2006
Pronouncement Date: 30-04-2010 | Result: Dismissed

Appeal Details

RSA Number 645819914 RSA 2008
Assessee PAN AHBPK9977G
Bench Mumbai
Appeal Number ITA 6458/MUM/2008
Duration Of Justice 1 year(s) 5 month(s) 23 day(s)
Appellant THE INCOME TAX OFFICER, WARD2(3)(4), MUMBAI
Respondent SHRI. JOY SURENDRA KAPOOR, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 30-04-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted J
Tribunal Order Date 30-04-2010
Date Of Final Hearing 26-04-2010
Next Hearing Date 26-04-2010
Assessment Year 2005-2006
Appeal Filed On 06-11-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI J BENCH MUMBAI BEFORE SHRI N.V. VASUDEVAN (JUDICIAL MEMBER) AND SHRI PRAMOD KUMAR (ACCOUNTANT MEMBER) ITA NO.6458/MUM./2008 ASSESSMENT YEAR : 2005-06 DATE OF HEARING 26.4.2010 THE INCOME TAX OFFICER WARD 2(3)(4) 552 AAYAKAR BHAVAN M.K. ROAD MUMBAI 400020 .. APPELLANT VS SHRI JOY SURENDRA KAPOOR 3 UNION CO. OP. INS. BUILDING 23 SIR P.M. ROAD FORT MUMBAI 400 001 AHBPK9977G RESPONDENT APPELLANT BY : SHRI L.K. AGRAWAL RESPONDENT BY : SHRI M. SUBRAMANIAN O R D E R PER PRAMOD KUMAR A.M. 1. IN THIS REVENUES APPEAL AGAINST LEARNED CIT(A) S ORDER DATED 29 TH AUGUST 2008 FOR THE ASSESSMENT YEAR 2005-06 FOLLOWING GR IEVANCES ARE RAISED. [2] 1. THE LEARNED CIT(A) HAS ERRED IN ALLOWING DEDUCT ION U/S 54F WITHOUT APPRECIATING THE FACT THAT ASSESSEE HAD FAI LED TO CLAIM DEDUCTION U/S 54F IN THE RETURN OF INCOME NOR HE HA D FILED REVISED RETURN OF INCOME CLAIMING IT AS REQUIRED AS PER RAT IO OF SUPREME COURT DECISION IN THE CASE OF GOETSE INDIA LTD. 284 ITR 323 (SC). 2. THE LEARNED CIT(A) ERRED IN DIRECTING THE ASSESS ING OFFICER TO INCLUDE DONATION IN THE COST OF THE ACQUISITION WIT HOUT APPRECIATING THE FACTS THAT ASSESSEE HAD FAILED TO FILE ANY DOCUMENT ARY EVIDENCE FOR PAYMENT OF DONATION TO THE SOCIETY. 2. AS FAR AS FIRST GRIEVANCE IS CONCERNED THE MATERIA L FACTS ARE AS FOLLOWS. DURING THE RELEVANT PREVIOUS YEAR THE ASSESSEE HAD SOLD LAND AT VILLAGE TUNGARLI LONAVALA AND CLAIMED DEDUCTION U/S 54EC IN RESPECT OF THE SAME BY INVESTING ENTIRE SALE PROCEEDS IN THE ELIGIBLE BONDS. HOWEVER DURIN G THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS IT WAS SUBMITTED BY THE ASS ESSEE THAT HE HAD INVESTED AN AMOUNT EQUIVALENT TO ENTIRE CAPITAL GAINS IN A NEW HOUSE AND HE IS ALSO ELIGIBLE FOR DEDUCTION U/S 54F OF THE ACT. THE ASSESSING OFFICER DID NOT ENTERTAIN THAT CLAIM ON THE GROUND THAT THE ASSESSEE HAS NOT MADE THE SAID CLAIM BY WAY OF A REVISED RETURN WITHIN TIME ALLOWED U/S 139(5). AGGRIEVED ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LEARNED CIT(A) WHO ADMITTED THE SAID CLA IM AND ACCEPTED IT ON MERITS. THE ASSESSING OFFICER IS AGGRIEVED OF THE LEARNED C IT(A) SO ADMITTING THE CLAIM FOR EXEMPTION U/S 54F AND RELIES UPON HON'BLE SUPREME C OURTS JUDGMENT IN THE CASE OF GOETZE INDIA LTD. VS CIT 284 ITR 323 (SC) IN S UPPORT OF THE PROPOSITION THAT THE CLAIM COULD ONLY HAVE BEEN MADE BY THE ASSESSEE IN ORIGINAL OR EVEN REVISED INCOME TAX RETURN. 3. RIVAL CONTENTIONS ARE HEARD AND RECORDS HAVE BEEN P ERUSED. 4. WE HAVE NOTED THAT IN GOETZES CASE (SUPRA) HON'BL E SUPREME COURT DID HOLD THAT AN ASSESSEE CAN MAKE A CLAIM FOR DEDUCTION WHI CH HAS NOT BEEN MADE IN THE ORIGINAL TAX RETURN BY WAY OF FILING REVISED RETUR N WITHIN PERMISSIBLE TIME LIMIT BUT THEIR LORDSHIPS ALSO CLARIFIED THAT THE POWERS OF T HE TRIBUNAL U/S 254 TO ADMIT [3] ADDITIONAL GROUND REMAINS UNAFFECTED BY THAT JUDGME NT. THE DECISION WAS THUS CONFINED TO THE POWERS OF THE ASSESSING OFFICER AND NOT AN APPELLATE AUTHORITY. IN THE CASE OF CIT VS KANPUR COAL SYNDICATE 53 ITR 22 5 HON'BLE SUPREME COURT HAS HELD THAT THE POWERS OF THE LEARNED CIT(A) SITTING IN APPEAL OVER AN ASSESSMENT WERE PLENARY AND CONTERMINOUS WITH THOSE OF THE ASS ESSING OFFICER AND HE CAN DO WHAT THE ASSESSING OFFICER CAN DO AND ALSO DIRECT T HE ASSESSING OFFICER TO DO WHAT THE ASSESSING OFFICER HAS FAILED TO DO. HON'BLE BOM BAY HIGH COURT IN THE CASE OF CIT VS PRABHU STEEL INDUSTRIES P. LTD. 171 ITR 530 HA S HELD THAT WHERE AN ASSESSEE HAS MADE A CLAIM NOT IN HIS INCOME TAX RETURN BUT IN T HE ASSESSMENT PROCEEDINGS IT IS OPEN TO THE FIRST APPELLATE AUTHORITY TO ENTERTAIN THAT CLAIM. IN VIEW OF THESE DISCUSSIONS WE SEE NO INFIRMITY IN LEARNED CIT(A) S ADMITTING THE CLAIM OF EXEMPTION U/S 54F AND ADJUDICATING UPON THE GROUND ON MERITS. WE APPROVE AND AFFIRM HIS ACTION AND DECLINE TO INTERFERE IN THE M ATTER. 5. GROUND NO.1 IS DISMISSED. 6. AS FAR AS SECOND GRIEVANCE OF THE ASSESSING OFFICER IS CONCERNED THE ASSESSING OFFICER MADE DISALLOWANCE ON THE GROUND T HAT NO DOCUMENTARY EVIDENCE IS PLACED ON RECORD IN SUPPORT OF THE ARGUMENT THAT PAYMENT OF TRANSFER FEES IS COMPULSORY AND THAT THE PAYMENT HAS BEEN EFFECTED F ROM ASSESSEES OWN BANK ACCOUNT . ON APPEAL THE LEARNED CIT(A) DELETED THE DISALLO WANCE AND OBSERVED THAT THE FACTS CLEARLY REVEAL THAT THE PAYMENT OF RS.6. 00 LAKHS HAS BEEN MADE THROUGH BANK CHEQUE TO THE SOCIETY ON BEHALF OF THE SELLER OF THE PROPERTY AS DONATION WHICH APPEARS TO BE PART OF THE ACQUISITION PROCESS. THE LEARNED CIT(A) ACCORDINGLY CONCLUDED THAT THE SAID SUM OF RS.6.00 LAKHS MADE B Y THE ASSESSEE TO BE INCLUDED IN THE COST OF ACQUISITION. THE ASSESSING OFFICER IS A GGRIEVED OF THE STAND SO TAKEN BY THE LEARNED CIT(A) AND IS IN APPEAL BEFORE US. [4] 7. HAVING HEARD THE RIVAL CONTENTION AND HAVING PERUSE D THE MATERIAL ON RECORD WE SEE NO REASONS TO INTERFERE ON THIS ASPECT OF TH E MATTER EITHER. WE HAVE NOTED THAT AS EVIDENT FROM A PLAIN READING OF THE GROUND OF APPEAL THE SHORT GRIEVANCE OF THE ASSESSING OFFICER THAT THERE IS NO EVIDENCE FOR PAYMENT OF DONATION TO THE SOCIETY BUT THEN IN THE ASSESSMENT ORDER ITSELF THE ASSESSING OFFICER HAD NOTED THE ASSESSEES CONTENTION THAT PAYMENT IS MADE FROM BAN K ACCOUNT OF MRS. RASNA KAPOOR ASSESSEES WIFE AND THE ASSESSING OFFICERS LIMITED OBJECTION WAS THAT THERE IS NO EVIDENCE TO THE EFFECT THAT THE PAYMENT HAS BEEN EFFECTED FROM THE ASSESSEES OWN (EMPHASIS SUPPLIED BY ASSESSING OFFICER ALSO) BANK ACCOUNT . IT IS THUS FUTILE TO CONTEND THAT THERE WAS NO EVIDENCE OF PAYMENT AT AL L AS THE ISSUE WAS CONFINED TO ON THIS ASPECT AS TO FROM WHOSE ACCOUNT THE PAYMEN T WAS MADE. GRIEVANCE RAISED BY THE ASSESSING OFFICER NOW THUS IS DEVOID OF AN Y SUBSTANCE. WE REJECT THE SAME. 8. GROUND NO.2 IS ALSO THEREFORE DISMISSED. 9. IN THE RESULT APPEAL IS DISMISSED. PRONOUNCED IN T HE OPEN COURT TODAY ON 30 TH DAY OF APRIL 2010. SD/- (N.V. VASUDEVAN) JUDICIAL MEMBER SD/- (PRAMOD KUMAR) ACCOUNTANT MEMBER MUMBAI; 30 TH DAY OF APRIL 2010 [5] COPIES OF THE ORDER FORWARDED TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT MUMBAI (4) CIT(A) MUMBAI (5) DR J BENCH (6) GUARD FILE TRUE COPY BY ORDER ETC. ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PRADEEP J. CHOWDHURY MUMBAI BENCHES SR. PRIVATE SECRETARY [6] DATE INITIAL 1. DRAFT DICTATED ON 26.4.2010 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 27.4.2010 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 27.4.2010 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 27.4.2010 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 27.4.2010 SR.PS/PS 6. DATE OF PRONOUNCEMENT 30.4.2010 SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER