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TMI Blog2024 (9) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Dharan Gandhi, Advocate For the Revenue : Ms. Rajeshwari Menon, Sr. DR ORDER PER GIRISH AGRAWAL, ACCOUNTANT MEMBER: This appeal filed by the assessee is against the order of Ld. CIT(A)-56, Mumbai vide order no. ITBA/APL/S/250/2023- 24/1058549399(1), dated 07.12.2023, passed against the assessment order by Assistant Commissioner of Income Tax (OSD) (IT) - 2(2)(1), Mumbai, u/s.144 r.w.s. 147 of the Income-tax Act, 1961 (hereinafter referred to as the Act ), dated 26.12.2017 for AY 2010-11. 2. Grounds taken by the assessee are reproduced as under: 1. The assessment order u/s 144 r.w.s 147 dated 26.12.2017 is bad in law and without jurisdiction. 2. The reassessment proceeding initiated by issuing notice u/s 148 of the Act is bad in law. 3. The Ld. CIT(A) erred in upholding the notice u/s 148 of the Act issued by the Ld. AO as no valid notice was served upon the appellant under section 148 of the Act and, hence the reassessment proceedings are null and void. 4. The Ld. CIT(A) erred in confirming the action of the Ld. AO in making addition of Rs. 2,00,00,000/- in respect of capital gains on sale of immovable property 5. The Ld. CIT(A) erred in not even allowing the deduction of inde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was entitled for claiming deduction under Section 54 of the Act in her return of income of Assessment Year 2010 11. 4.1. In conclusion, in the remand report, ld. Assessing Officer stated that since assessee had not filed her return of income, claim of assessee for deduction u/s. 54 of the Act is not allowable. For this reliance was placed on the decision of Hon ble Supreme Court in the case of Goetze (India) Ltd vs. CIT [2006] 284 ITR 323 (SC). 5. CIT(A), after considering the submissions made assessee and since assessee did not file the return of income, held that her claim of deduction u/s. 54 amounting to ₹ 93,17,462/- is not an allowable. Aggrieved, assessee is in appeal before the Tribunal. 6. In respect of non-filing of return by the assessee, Ld. counsel submitted that assessee was of the view that there was no taxable long-term capital gains and hence it was not necessary to file the return for the year under consideration. Further, it was submitted that assessee had made an application with the office of ITO(IT)-3(1) for issuance of certificate u/s. 197 of the Act which was issued on 17.03.2010 for Nil TDS on the impugned sale transaction. It was submitted that by ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of reference. 9.1 The assessee had purchased a residential house property i.e. Flat No. 202. 201 floor, Vasundhara, Janki Kutir, Juhu Tata Road, Mumbai 100 010 from Mr. Mein B Marwah vide deed of transfer dated 170106 107 for a consideration of Rs 52,00,000/- and registration charges of Rs 20,110/- and stamp duty of Rs 1,74,777 mentioned on the said deed. Accordingly, total cost of acquisition of this flat comes at Rs. 55,94,810/- 9.1.1 The assessee had sold out the above mentioned property to Mr. Minor V Pimple and Mrs Alpa K. Vora vide registered deed of sale dated 29.03.2010 for a consideration of Rs. 2,00,00,000/- and as per bank statement submitted try the assessee the cheque of the said amount was credited on 31.03.2010 in the joint bank account of the assessee and his husband Mr. Sameer Belani having account no. 0000005133702520 maintained with M/s DNP Paribas. 9.1.2 The assessee had purchased an immovable property being residential house (i.e. Flat No. 14, 8th floor, Nav Reshma Apartment CHS Ltd., Pali Hill. Bandra- West, Mumbai-400050) from Mr. Samir Narain Bhojwani vide registered deed of sale dated 10.05.2010 for a consideration of Rs. 10,00,00,000/- and registration ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndividual or a Hindu undivided family), the capital gain arises from the transfer of a long-term capital asset), being buildings or lands appurtenant thereto, and being a residential house, the income of which is chargeable under the head Income from house property (hereafter in this section referred to as the original asset), and the assessee has within a period of one year before or two years after the date on which the transfer took place purchased, or has within a period of three years after that date constructed, one residential house in India), then), instead of the capital gain being charged to income-tax as income of the previous year in which the transfer took place, it shall be dealt with in accordance with the following provisions of this section, that is to say, i. if the amount of the capital gain [is greater than the cost of the residential house)] so purchased or constructed (hereafter in this section referred to as the new asset)), the difference between the amount of the capital gain and the cost of the new asset shall be charged under section 45 as the income of the previous year, and for the purpose of computing in respect of the new asset any capital gain arisin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration for the purchase of new house was much more than the amount of sale consideration received by the assessee on transfer of her immovable property on which capital gain had accrued. 9.1. Conditions specified for claiming deduction u/s. 54 against the long-term capital gain accruing on transfer of a residential house property has been stated to be satisfied by the Ld. Assessing Officer in his remand report. Admittedly, assessee had failed to claim the benefit in her return but made all the efforts by furnishing the required details with corroborative documentary evidences before the First Appellate Authority as well as before the Ld. Assessing Officer in the remand proceedings. These are admitted facts and the denial of the claim is only on technical grounds that assessee had not furnished return of income claiming such deduction. Substantively, when law confers benefit on the assessee under statute, it cannot be taken away by the authority on mere technicalities. In this regard, reference is made to Article 265 of the Constitution of India in terms of which it is a settled position of law that no tax can be levied / recovered without the authority of law. 9.2. Similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt is warranted. The respondent No. 2 is directed to reassess the taxable income of the petitioner, by taking into consideration the benefit available to her under s. 54F of the IT Act and pass appropriate order. 9.3. Ld. Counsel also referred to Taxpayers Charter dealt by section 119A of the Act. From the same, we note that there are two parts to it, first being commitment by the Income Tax Department and second being expectations from the Taxpayers. Clause 6 and clause 9 from the commitment by the Income Tax Department are relevant to the present case which are as under: Clause 6. Collect the correct amount of tax The Department shall collect only the amount due as per the law. Clause 9. Hold its authorities accountable The Department shall hold its authorities accountable for their actions. 9.4. Similarly, clause 1 and clause 5 are relevant in the present case from the expectations from Taxpayers which are as under: Clause 1. Be honest and compliant Taxpayer is expected to honestly disclose full information and fulfil his compliance obligations. Clause 5. Respond in time Taxpayer is expected to make submissions as per tax law in timely manner. 9.5. Keeping the above two parts in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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