SHIBANI GAIND,MUMBAI vs. ITO WD 3(3), THANE

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ITA 3152/MUM/2016Status: DisposedITAT Mumbai24 March 2017AY 2009-103 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the CIT(A) failed to consider the assessee's arguments and relevant case law regarding the capital gains claim. The CIT(A) also did not properly address the delay in filing the appeal.

What were the facts?

The assessee's appeal was filed with a delay of 16 days. The CIT(A) did not admit the appeal due to this delay and also upheld the AO's disallowance of long-term capital gains under section 54.

What were the issues?

Whether the CIT(A) erred in not admitting the appeal due to a short delay and in disallowing the claim of long-term capital gains without properly considering the assessee's arguments and case law.

Which sections of the Income-tax Act were involved?

Section 54

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI

For Appellant: Shri B.N. Rao and Ms. Vyoma Rao
Hearing: 20.03.2017Pronounced: 24.03.2017

O R D E R

PER D. KARUNAKARA RAO, AM:

1.

This appeal filed by the assessee on 4.5.2016 is against the order of the CIT (A)-2, Thane dated 26.2.2016 for the assessment year 2009-2010. In this appeal, assessee raised the following ground which reads as under:- “The Ld CIT (A) erred in upholding the order f the AO by disallowing the claim of long term capital gains under section 54 of the Act.”

2. During the proceedings before the Tribunal, assessee raised an additional ground and the same reads as under:- “The Ld CIT (A) erred in not admitting the appeal on account of short delay in filing of appeal by 16 days. He ought to have brought to the notice of the appellant during the course of hearing which could have been rectified immediately.”

3. In connection with the above extracted additional ground, Ld Counsel for the assessee mentioned that the facts regarding the delay was not brought to the notice of the assessee by the CIT (A) before denying the admitting of the appeal. The details for the delay and the request for condoning is furnished before us vide letter dated 20.3.2017. Further, Ld AR submitted that the additional ground may be admitted and the issue may be remanded to the file of the CIT (A). Further also, Ld AR submitted that the issue raised in the appeal gets covered in favour of the assessee by virtue of the Tribunal’s order in the case of General Glass Co. P. Ltd vs. DCIT (2007) 108 TTJ 0854. The said Tribunal’s order refers to the situation where the clauses of agreement provides for a condition upon which, on fulfilment of the same only, assessee gets rights on the property. Such legal proposition goes in favour of the assessee so far as the claim u/s 54 of the Act is concerned. CIT (A) while not admitting the appeal, adjudicated the issue on merits against the assessee by not attending to the above said argument of the assessee and the citations mentioned above.

4.

After hearing both the parties and on perusal of the orders of the Revenue Authorities as well as the cited decisions of the Tribunal (supra), I am of the view, the CIT (A) did not attend to the crucial argument of the assessee and merely ignored the said decision of the Tribunal (supra) by mentioning the cases relied upon by the assessee are distinguishable on facts. CIT (A) has not given the reasons as to which of the facts are distinguishable and how the ratio laid down by the said decisions are not applicable to the facts of the present case. Considering the same, I am of the opinion, the CIT (A) should be directed to admit the appeal and adjudicate the issue afresh after applying the said citations on the subject, if any, and after granting a reasonable opportunity of being heard to the assessee as per the set principles of natural justice. Accordingly, regular ground and the additional ground raised

by the assessee are allowed statistical purposes.

5. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 24th March, 2017. Sd/- (D. KARUNAKARA RAO) ACCOUNTANT MEMBER भुंफई Mumbai; ददनांक 24.03.2017 व.नन.स./ OKK , Sr. PS आदेश की प्रतिलऱपि अग्रेपिि/Copy of the Order forwarded to : 1. अऩीराथी / The Appellant

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