Income Tax Appellate Tribunal - Mumbai
Rajee Patwa, Mumbai vs Ito 25(3)(3), Mumbai on 11 December, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL,
MUMBAI BENCH "SMC", MUMBAI
BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER
ITA No.1735/M/2017
Assessment Year: 2012-13
Shri Rajee Patwa, Income Tax Officer - 25(3)(3),
B-1102, Parimal Appts, Mumbai
Opp Roopdar 'D' Bldg,
Gulmohur Road, Vs.
Near Juhu Lane,
Andheri (West),
Mumbai-400 056
PAN: ABUPL 4599G
(Appellant) (Respondent)
Present for:
Assessee by : Shri Govind Javeri, A.R.
Revenue by : Shri Saurabh K. Rai, D.R.
Date of Hearing : 22.09.2017
Date of Pronouncement : 11.12.2017
ORDER
Per D.T. Garasia, Judicial Member:
The present appeal has been preferred by the assessee against the order dated 16.01.2017 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2012-13.
2. During the course of hearing, the Ld. A.R. has filed the admission of additional evidence under rule 29 of the Appellate Tribunal Rules, 1963.
3. The short facts of the case are as under:
The assessee had purchased the flat no.901 in the building known as "Woodbine" situate at Balkum, Thane from M/s. National 2 ITA No.1735/M/2017 Shri Rajee Patwa Dyes, the developers, in the month of December 2005. The developers issued allotment letter dated 04.12.2005 and also issued letter dated 07/12/2005 welcoming the assessee for becoming part of their project of "Everest World". The formal agreement for purchase of the said flat was entered between the assessee and the developers on 05.12.2009. The said flat purchased by the assessee was sold on 11.07.2011 for consideration of Rs.37,00,000/-. Since the assessee was allotted flat number 901 vide allotment letter dated 04/12/2005, the assessee computed a period of holding from that date and treated it as "long-term capital asset". The income arising therefrom on its sale made on 11.07.2011 was offered to tax as long term capital gain in the return of income filed by the assessee on 23/04/2015. The assessee had claimed exemption under section 54 of the Act from the long-term gain earned by her. While completing assessment, the assessing officer called for details pertaining to the transaction of capital gain and the same were furnished by the representative of the assessee including the letter dated 07/12/2005 issued by the developers. It is the case of the assessing officer that since the letter dated 07/12/2005 did not contain the relevant particulars such as flat number, building name, etc. it cannot be said that the assessee had acquired any right in the impugned flat. The assessing officer has further held that the assessee can be said to have acquired the flat On 05.12.2009 i.e. the date on which agreement for sale was executed between the developers and assessee. Accordingly, he treated the 3 ITA No.1735/M/2017 Shri Rajee Patwa said flat as short-term capital asset and computed the gain arising therefrom as short-term capital gain. Consequentially, the benefit of indexation and exemption available u/s. 54 of the Act were not granted to the assessee. The assessee has filed the following document in paper book before us. The Ld. A.R. submitted that this crucial document which establishes that assessee was allotted a flat in December 2005 with flat No.901 in "Everest World" project. The Ld. A.R . submitted that this document was given to Ld. A.R. but he had not given this document before the AO and the Ld. CIT(A).
Moreover, bank statement reflecting payment of money to developers towards purchase of the flat was not filed before the lower authorities. Therefore, all these documents show that all these documents are vital for deciding the appeal, therefore, this additional evidence may be admitted.
4. The Ld. D.R. objected to it.
5. We have heard the rival contentions of both the parties. We find that assessee has submitted the additional evidence before us. The assessee has submitted the confirmation and he submitted the 5 additional evidences before us. We find that assessee has produced following documents before us:
Sr. Particulars Date Page No. Filed before No. A.O. CIT(A)
1. Allotment letter 04.12.2005 1-2 No Yes issued by National 4 ITA No.1735/M/2017 Shri Rajee Patwa Dyes for booking of flat no.901 in building Woodbine in project 'Everest World'.
2. Welcome letter 07.12.2005 3 Yes No issued to the appellant for becoming member of 'Everest World'.
3. Bank statement 4 No No showing initial payment made to National Dyes on 12/06/2005 towards booking of aforesaid flat.
4. Statement showing 5 Yes No payments made by the appellant towards the booking of aforesaid flat 5 Agreement for Sale 05.12.2009 6-25 Yes No between National Dyes and the appellant of the aforesaid flat (relevant pages only)
6. We find that at Sl. No.2 it has been mentioned that welcome letter was produced before the AO but it was not produced before the Ld. CIT(A). The bank statement showing initial payment to National Dyes on 12.06.05 towards booking the said flat this evidence was not filed before lower authorities. The statement showing the payment 5 ITA No.1735/M/2017 Shri Rajee Patwa was furnished before the AO but it was not furnished before the Ld. CIT(A). Similarly agreement to sale was also produced before the AO but assessee could not produce it before the Ld. CIT(A). We find that all these evidences go to the route of the case. Therefore, I am of the view that these documents require verification at the end of the AO. Therefore, we admit the same and restore this matter back to the file of AO and AO is directed to dispose the matter as per law.
7. In the result, appeal is allowed for statistical purposes.
Order pronounced in the open court on 11.12.2017.
Sd/-
(D.T. Garasia) JUDICIAL MEMBER Mumbai, Dated: 11.12.2017.
* Kishore, Sr. P.S. Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The CIT (A) Concerned, Mumbai The DR Concerned Bench //True Copy// [ By Order Dy/Asstt. Registrar, ITAT, Mumbai.