9911796707
TMI Blog2022 (4) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... f Commissioner of Income Tax(Appeals)-7, Mumbai [in short 'the CIT(A)'], dated 15/11/2019 for the respective assessment years. ITA NO.7109/MUM/2012(A.Y.2004-05): 2. This appeal by the assessee is against the order of Commissioner of Income Tax (Appeals)-3, Mumbai [ in short 'the CIT(A)] dated 27/03/2012 for the assessment year 2004-05. The assessee in appeal has raised as many as ten grounds. The issues that emerges from the grounds of appeal are valuation of property as on 01/04/1981 and consequent determination of Long Term Capital Gain(LTCG) and denial of exemption under section 54F of the Income Tax Act, 1961 ( in short 'the Act'). 3. This appeal is time barred by 185 days. The assessee has filed an application seeking condonation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The ld. Representative for the assessee referred to para 24 of Tribunal order dated 10/12/2019(supra). 5. Shri B.K.Bagchi representing the Department defended the impugned order. However, the ld.Departmental Representative fairly admitted that the issue relating to exemption u/s. 54F has been decided by the Tribunal in the case of assessee's father who was joint owner of the property. 6. We have heard the submissions of rival sides and have examined the orders of authorities below. The solitary issue urged in the present appeal by the ld. Representative for the assessee is with regard to assessee's claim of exemption under section 54F of the Act. Undisputedly, the assessee was joint owner of property having 27% share. The 73% share in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elopment agreement was entered by the assesse along with his son with share of 73:27 between them and it is clear that there exist 2 penthouses and two individual assessees. Therefore, each assessee will get separate exemption u/s 54F of the Act. This benefit is legally available to both the assessees. There are catena of cases in which courts have held that when there exists two portion of flats with one kitchen then the whole combined portion of the area will be treated as one single unit for the purpose of granting exemption u/s 54 as well as 54F. Accordingly, we direct the AO to grant exemption u/s 54F of the Act to each assessee and as per their choice. On record, assessee prefers to get penthouse occupied by his daughter as exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tmental Representative representing the Department vehemently supported the assessment order, however, the ld.Departmental Representative admitted that the issue has been adjudicated by the Tribunal in the case of assessee's father in assessment year 2004-05. 11. Both sides heard. The Assessing Officer has disputed the claim of assessee in respect of sale of land as Long Term Capital Gain. The Assessing Officer rejected the contention of assessee that sale consideration includes consideration for land. In First Appellate proceedings, the CIT(A) granted relief to the assessee by following the order of his predecessor in the case of assessee's father and the decision of Tribunal in the case of ACIT vs. Jaimal K. Shah, 137 ITD 376. The CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale proceeds into sale proceeds attributable to the land and super structure. Accordingly, we reject the contentions of the revenue and dismiss the grounds of appeal raised by the revenue." The Revenue has not been able to controvert the aforesaid findings. Thus, in view of undisputed facts of the case and the aforesaid decision by the Tribunal, we find no merit in the appeal by the Revenue, hence, the same is dismissed being devoid of any merits. ITA NO.91/MUM/2020, A.Y. 2011-12: ITA NO.92/MUM/2020, A.Y. 2012-13: 12. The ld. Authorized Representative of the assessee submitted that the CIT(A) has decided the appeals for 2011-12 and 2012-13 in an ex-parte proceedings. These appeals were originally fixed for hearing before CIT(A) -4, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tedly served as well. The assessee has only submitted written submissions and none appeared on behalf of the assessee for personal hearing. Taking into consideration entirety of facts, we deem it appropriate to restore these appeals back to the file of CIT(A) for denovo adjudication after affording reasonable opportunity of hearing to the assessee, in accordance with law. The assessee is directed to appear before the First Appellate Authority on service of notice and co-operate in the proceedings. The impugned orders for assessment year 2011-12 and 2012-13 are set-aside and the appeals by the assessee are allowed for statistical purpose. 15. To sum up: ITA NO.7109/Mum/2012 is partly allowed, ITA No. 2414/Mum/2015 is dismissed and ITA No.91 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
