1 Stay Appl. No. 897/Del/2018
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: `Friday' NEW DELHI
BEFORE SHRI N.K. SAINI, VICE PRESIDENT
&
SMT. BEENA A PILLAI, JUDICIAL MEMBER
Stay Appl. No. 897/Del/2018
(In ITA No. 1286/Del/2017)
(ASSESSMENT YEAR-2012-13)
Sita Bhagi vs ACIT
83, Sukhdev Vihar, Circle 65(1)
New Delhi. New Delhi.
PAN NO. AAGPB2916E
(APPELLANT) (RESPONDENT)
Appellant by Sh. Sunil Kumar Gupta, CA
Respondent by Sh. S.L. Anuragi, Sr. DR
Date of Hearing 07/12/2018
Date of Pronouncement 12/12/2018
ORDER
PER BEENA PILLAI, JUDICIAL MEMBER:
Present stay application has been filed by applicant seeking
stay of outstanding demand of Rs. 24,70,569/-.
2. Brief facts are as under:
It has been submitted that assessee is a senior Govt. doctor and
earning a salary income. During the year under consideration
assessee filed her income tax return on 10.11.2012 declaring an
income of Rs. 20,59,962/-, comprising of
a) Rs. 20,58,291/- as the income from Salary
b) Rs. 77,48,487/- as the income from Long Term Capital Gain
2 Stay Appl. No. 897/Del/2018
c) Rs. 1,50,000/- as Loss from House Property
d) Rs. 2,71,671/- as Income from Other Sources
3. Ld. counsel submitted that out of income from Long Term
Capital Gain, assessee claimed Rs. 77,48,487/- as exemption u/s
54 of the Income Tax Act, 1961 and Rs. 1,20,000/- has been
claimed as deduction under Chapter VI-A.
It was submitted that during the year under consideration assessee
sold her house property in August, 2011 and wanted to claim
exemption from capital gain u/s 54. So, she invested a sum of Rs.
41,39,135/- in residential plot at Yamuna expressway. For
construction of house on residential plot, she opened capital gain
account and deposited Rs. 36,09,352/- into it.
It has been submitted that assessee being a doctor and not have
technical knowledge of income tax provisions, it took some time to
open the capital gain account in the bank due to various formalities
and furnishing of various documents.
It has been submitted that assessee opened capital gain account in
State Bank of India on 23.10.2012 and filed her Return of Income
on 10.11.2012 claiming exemption from capital gain on basis of
investment made in residential plot and amount deposited in
capital gain account.
Subsequently assessee is case was selected for scrutiny for the AY
2012-13 vide notice dated 12.08.2013. During assessment
proceedings u/s 143(3), assessee came to know that she was not
eligible to exemption u/s 54 due to technical default that capital
gain account should have been opened before 31.07.2012, but
3 Stay Appl. No. 897/Del/2018
account was opened on 23.10.2012 . It has been submitted that
due to circumstances beyond control of assessee, she could not
start construction at the Residential plot and therefore, no amount
was withdrawn from Capital Gain account.Ld. counsel submitted
that upon appraising assessee with the position and discharged
under law that is applicable to the transaction she immediately
withdrew exemption and filed revised computation to pay due tax
with interest on 16.02.2015 & 02.03.2015.
It is also submitted that assessee had taken housing loan for
purchase of flat whose possession is not given by builder, and that
assessee is paying interest on housing loan to the bank. It has been
submitted that assessee was under a bonafide belief that interest
paid on housing loan is deductible u/s 24(b), and accordingly
claimed deduction u/s 24(b) in respect of interest paid on housing
loan availed by her. Ld. counsel submitted that assessment order
was passed on 29.03.2015 disallowing exemption claimed u/s 54
and deduction claimed u/s 24(b). Ld.AO also made addition of
Rs.14,587/- on account of interest on saving bank account.
It has been submitted that assessee paid whole amount of tax with
interest before date of passing of assessment order and on date of
passing of assessment order demand against assessee was nil.
And aggrieved by the assessment order, assessee preferred appeal
before Ld.CIT (A) who confirmed the order passed by Ld.AO.
Aggrieved by the order of Ld.CIT (A) assessee is in appeal before this
Tribunal on following grounds:
Grounds of appeal:
4 Stay Appl. No. 897/Del/2018
1. "The order passed by Ld.CIT(Appeals)-21 is bad in law.
2. The Ld. CIT(A) 21, New Delhi has erred in confirming the order
passed by AO imposing penalty u/s271(1)(c ) when there is a
bonafide belief and reasonable cause for the default committed
by the Appellant.
3. The ld. CIT(A) failed to consider the fact that there was no
revenue loss and consequently no penalty u/s 271(1)(c ) can be
imposed.
4. That Ld.CIT(A) failed to consider the following judicial
pronouncements while passing the impugned order:
a) Reliance Petroproducts (P) Ltd. (SC) [2010] 189 Taxmann
322
b) CIT vs. Pricewaterhouse Coopers Pvt. Ltd. [SC] 2012-
ITRVSC-244
c) T. Ashok Pal vs. CIT [SC] [2007] 161 Taxmann 340
d) Madhushree Gupta vs. CIT Delhi (Delhi High Court)
e) Neenu Datta vs. CIT, Delhi XV 35 taxmann.com 454
f) Ravidnra Bahl vs. Assistant Director of Income Tax 42
taxmann.com 404
5. The appellant craves leave to add, amend, alter, withdraw any
ground of appeal anytime upto the hearing of this appeal."
Ld.Counsel submitted that assessee does not have wherewithals to
pay balance demand. Under these circumstances, it is prayed that
disputed demand may be stayed till disposal of appeal.
4. On the other hand, Ld.DR relying upon orders passed by
authorities below objected for a blanket stay to be granted to
assessee. He submitted that in the event stays granted certain
amount may be directed to be deposited against the balance
outstanding demand as on date.
5. We have perused the submissions advanced by both the sides
and the light of the records placed before us.
6. We are of considered opinion that assessee has made out
prima facie case on merits, and balance of convenience shifts in
5 Stay Appl. No. 897/Del/2018
favour of assessee. We are therefore inclined to grant stay to
assessee for year under consideration for a period of six
months(180 days) or till passeg of order, whichever is earlier,,
subject to making payment of Rs.5 Lacs on or before 31/12/18
and. On making afore stated payment within stipulated time,
registry is directed to fix appeal in ITA No.1286/del/2017 for
hearing on 06/03/2018. Needless to say that assessee shall not
seek any adjournment unless there being a cogent reason,
otherwise this stay shall stand automatically vacated.
Order pronounced in the open court on 12/12/2018
Sd/- Sd/-
(N.K. SAINI) (BEENA A PILLAI)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 12/12/2018
*Kavita Arora
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT NEW DELHI
6 Stay Appl. No. 897/Del/2018
Date
1. Draft dictated on 07/12/2018
2. Draft placed before author 11/12
3. Draft proposed & placed before the
second member
4. Draft discussed/approved by Second
Member.
5. Approved Draft comes to the 12/12
Sr.PS/PS
6. Kept for pronouncement on 12/12
7. File sent to the Bench Clerk & order 12/12
uploaded on
8. Date on which file goes to the AR
9. Date on which file goes to the Head
Clerk.
10. Date of dispatch of Order.
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