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TMI Blog2017 (10) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of being heard and only thereafter pass an order on the entire aspect relating to income under the head Capital Gains in accordance with law. - ITA NO.2167/MUM/2017 - - - Dated:- 25-9-2017 - SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER For The Appellant : Shri Sunil Nahta For The Respondent : Shri V.Vidhyadhar ORDER PER G.S.PANNU,A.M: The captioned appeal filed by the assessee pertains to assessment year 2011-12 is directed against an order passed by CIT(A)-36, Mumbai dated 08/11/2016, which in turn, arises out of an order passed by the Assessing Officer under section 144 r.w.s. 147 of the Income Tax Act, 1961 (in short the Act ) dated 21/03/2014. 2. The assessee has raised the following Grounds of appeal:- The Grounds of Appeal set out below are without prejudice to each other: 1(a) On the facts and in the circumstances of the case and in law, the learned authorities below erred in charging to income tax the Long Term Capital Gains of ₹ 66,42,023/- u/s. 45 of the Income Tax Act, 1961 and the reasons assigned for doing so are wrong and contrary to the facts and circumstances of the case, the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of delay. The Ld.Representative for the assessee pointed out that the delay was unintentional, inasmuch as, assessee himself is a senior citizen and at the relevant point of time, assessee s father-in-law passed away and he was involved in performing the rituals. Thus, there was a delay in 33 days in filing of the appeal, which may be condoned considering the unintended reasons explained. 3.1 The Ld. Departmental Representative has not assailed the bonafides of the reasons advanced by the assessee. 3.2 Considering the explanation furnished, we hereby condone the delay in filing the appeal and accordingly both the parties were heard on the issues raised in the appeal. 4. In brief, the relevant facts are that assessee alongwith his wife jointly owned a flat in Vandana Co-operative Society Ltd., Andheri, Mumbai. At the stage of assessment proceedings, there was no appearance by the assessee and, therefore, on the basis of the Individual Transaction Statement, the Assessing Officer treated an amount of ₹ 1,03,05,000/- received by the assessee on sale of immovable property as income from other sources. Before the CIT(A), assessee made detailed submissions and furnished a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal Gain on sale of the impugned flat was declared. The return of income for Assessment Year 2012-13 was filed considering the effective date of sale as 31.5.2011 and the fact that assessee had deposited an amount of ₹ 65,00,000/- in the Capital Gains scheme account and invested in purchase of new flat; the purchase was done before filing of return of income for Assessment Year 2012-13, and net income under the head Capital Gains for Assessment Year 2012-13 was declared at NIL, after claiming deduction u/s 54 of the Act. In support of his proposition, the learned representative has referred to various recitals of the agreement to justify that the event of transfer has taken place in the subsequent assessment year. On the point of law, reliance has been placed on the following decisions :- i) CIT vs. Geetadevi Pasari, ITA No. 861 of 2007 dated 10.7.2008 (Bombay High Court); ii) Dr. Arvind S. Phadke vs. Addl. Commissioner of Income-tax, [2014] 46 taxmann.com 335 (Pune Trib); iii) Smt. Raj Rani Devi Ramna vs. Commissioner of Income-tax, 201 ITR 1032 (Patna High Court); and iv) Ajay Kumar Shah Jagati vs. Commissioner of Income-tax, [2008] 168 taxman 53 (SC) 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oever relating to the Said Flat up to the date of handing over the possession of the Said Flat to the TRANSFEREE. 11. The sale shall be completed on receipt of the full and final consideration from the TRANSFEREE by the TRANSFERORS as provided in Clause 2 hereinabove against the TRANSFERORS handing over the peaceful and vacant possession of the Said Flat to the TRANSFEREE and further documents for more perfectly transferring the right, title and interest in respect of the Said Flat together with the benefits of the deposit money, sinking fund or any other deposits lying credited with the society/local authority in respect of the Said Flat in favour of the TRANSFEREE. 12. On receiving full and final consideration the TRANSFERORS hereby relinquish and surrender all their rights, title and interest in the membership of the said Society, the Share Certificate and the Said Flat in favour of the TRANSFEREE forever. 13. On receiving full and final consideration the TRANSFERORS will hand over all their original documents along with the Original Share Certificate pertaining to the Said Flat to the TRANSFEREE. 8. According to the learned representative, the possession ..... X X X X Extracts X X X X X X X X Extracts X X X X
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