Sandeep Shukla, Kanpur V. Asstt. Commissioner of Income Tax-1, Kanpur

ITA 1/LKW/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4664 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 01-02-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 01-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revised return
• Section: 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.01/LKW/2015 ASSESSMENT YEAR:2006-07 A.C.I.T., KANPUR VS SHRI SANDEEP SHUKLA, 62/154, HARBANS MOHAL, KANPUR. PAN:AQJPS4535M (RESPONDENT) (APPELLANT) SHRI ASHISH JAISWAL, ADVOCATE APPELLANT BY SHRI AMIT NIGAM, D. R. RESPONDENT BY 01/02/2016 DATE OF HEARING 04/03/2016 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE OR DER PASSED BY LEARNED CIT(A)-II, KANPUR DATED 11/09/2014 FOR THE ASSESSME NT YEAR 2006-07. 2. THE ASSESSEE HAS RAISED AS MANY AS 6 GROUNDS BUT THE ONLY GRIEVANCE OF THE ASSESSEE IS REGARDING CONFIRMING THE PENALTY OF RS.4 LAC IMPOSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE ACT. 3. LEARNED A. R. OF THE ASSESSEE SUBMITTED THAT THE WRITTEN SUBMISSIONS FILED BEFORE CIT(A) ARE AVAILABLE ON PAGES 1 TO 12 OF THE PAPER BOOK. HE SUBMITTED THAT THE SAME SHOULD BE CONSIDERED HERE A LSO. IN ADDITION TO THIS, HE PLACED RELIANCE ON THE FOLLOWING JUDICIAL PRONOU NCEMENTS: 1. PRICE WATERHOUSE COOPERS (P) LTD. VS. CIT [2012] 25 TAXMANN.COM 400 (SC) 2. PADRA TALUKA CO-OP. COTTON SALE GINNING & PRESSING SOCIETY VS. ACIT [2005] 142 TAXMAN 22 (AHD.) 2 3. MAJORIT SINGH VS. ACIT [2012] 27 TAXMANN.COM 124 (C HANDIGARH TRIB) 4. CIT VS. COMPRO TECHNOLOGIES (P) LTD. [2015] 55 TAXM ANN.COM 180 (DELHI) 5. CHANDRA PAL BAGGA VS. I.T.A.T. [2003] 128 TAXMAN 63 2 (RAJ) 6. SARV PRAKASH KAPOOR VS. DCIT 54 SOT 185 (AGRA) (URO ) 7. CIT VS. S.M. CONSTRUCTION [2015] 60 TAXMANN.COM 135 (BOMBAY) 4. LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDER S OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT IT IS NOTED BY THE ASSESSING OFFICER IN THE PENALTY ORDER THAT AFT ER ALLOWING THE RELIEF GIVEN BY CIT(A), THE CAPITAL GAIN CAME TO RS.39.86 LAC AN D AS PER THE REVISED RETURN FILED BY THE ASSESSEE ON 22/03/2007, COPY AV AILABLE ON PAGES 37 TO 43 OF THE PAPER BOOK, THE ASSESSEE DECLARED CAPITAL GAIN OF RS.22.58 LAC AND IN COMPUTING SUCH CAPITAL GAIN OF RS.22.58 LAC, THE ASSESSEE HAS CLAIMED DEDUCTION U/S 54 OF THE ACT AT RS.47.28 LAC AND THI S DEDUCTION CLAIMED U/S 54 IS IN RESPECT OF INVESTMENT IN TWO HOUSES; ONE R S.30 LAC AND SECOND AT RS.17.28 LAC. IN THE RETURN OF INCOME FILED BY THE ASSESSEE AFTER ISSUE OF NOTICE U/S 148 OF THE ACT ON 05/-09/2008, THE ASSES SEE HAS CLAIMED EXEMPTION U/S 54 IN RESPECT OF ONE HOUSE ONLY TO TH E EXTENT OF RS.30 LAC AND IN THIS MANNER, THE ASSESSEE HAS DECLARED LONG TERM CAPITAL GAIN OF RS.39.86 LAC. HENCE, IT IS SEEN THAT THE ONLY DISP UTE FOR WHICH THE PENALTY HAS BEEN IMPOSED BY THE ASSESSING OFFICER IS REGARD ING CLAIM OF DEDUCTION U/S 54 IN RESPECT OF INVESTMENT IN SECOND HOUSE OF RS.17.28 LAC. NOW IN THE LIGHT OF THESE FACTS, WE EXAMINE THE PROVISIONS OF THE ACT AND WE FIND THAT IN SECTION 54(1), THE EARLIER PROVISIONS WERE THAT THE DEDUCTION IS ALLOWABLE TO THE ASSESSEE IF THE ASSESSEE HAS WITHIN A PERIOD OF ONE YEAR BEFORE OR TWO YEARS AFTER PURCHASED OR WITHIN A PERIOD OF THREE Y EARS AFTER HAS CONSTRUCTED A RESIDENTIAL HOUSE IN INDIA. AS PER FINANCE (NO. 2) ACT, 2014 WITH EFFECT FROM 01/04/2015, THERE IS AMENDMENT IN THE PROVISIO NS OF SECTION 54(1) AS PER WHICH NOW IT HAS BEEN MADE SPECIFIC THAT INSTEA D OF A RESIDENTIAL HOUSE, 3 INVESTMENT HAS TO BE IN ONE HOUSE IN INDIA. HENCE, IT IS SEEN THAT BY THE AMENDMENT WITH EFFECT FROM 01/04/2015, IT HAS BEEN MADE CLEAR THAT THE INVESTMENT, WHICH IS ELIGIBLE FOR DEDUCTION U/S 54 IS ONLY FOR INVESTMENT IN ONE RESIDENTIAL HOUSE BUT BEFORE THAT, THERE WAS SC OPE OF AMBIGUITY WHICH WAS CLARIFIED BY THIS AMENDMENT WITH EFFECT FROM 01 /04/2015. IN VIEW OF THIS LEGAL POSITION, WE ARE OF THE CONSIDERED OPINI ON THAT FOR THE PERIOD PRIOR TO THIS AMENDMENT BY FINANCE (NO. 2) ACT, 2014, DIS ALLOWANCE IN RESPECT OF CLAIM OF DEDUCTION U/S 54 IS ALL RIGHT IF THE DEDUC TION IS CLAIMED FOR INVESTMENT IN MORE THAN ONE RESIDENTIAL HOUSE BUT B ECAUSE OF SCOPE OF AMBIGUITY IN THE PROVISIONS ITSELF, THE PENALTY U/S 271(1)(C) IS NOT JUSTIFIED FOR SUCH CLAIM BY THE ASSESSEE FOR DEDUCTION U/S 54 (1) ON ACCOUNT OF INVESTMENT IN MORE THAN ONE HOUSE PARTICULARLY WHEN SUCH FACT HAS BEEN MADE CLEAR IN THE RETURN OF INCOME ITSELF THAT THE DEDUCTION IS CLAIMED FOR INVESTMENT IN MORE THAN ONE RESIDENTIAL HOUSE. IN THE PRESENT CASE, AS PER THE REVISED RETURN FILED ON 22/03/2007, COPY AVAILA BLE ON PAGES 37 TO 43 OF THE PAPER BOOK, ON PAGE NO. 41 OF THE PAPER BOOK WH ERE STATEMENT OF LONG TERM CAPITAL GAIN IS AVAILABLE, IT HAS BEEN CLEARLY SPELT OUT THAT THERE IS INVESTMENT OF RS.30 LAC IN RESIDENTIAL FLAT AT BANG ALORE AND THERE IS INVESTMENT OF RS.13 LAC IN ANOTHER LAND PURCHASED A ND THERE IS COST OF CONSTRUCTION OF RS.4.28 LAC. THEREFORE, IT IS CLEA R THAT IN THE RETURN OF INCOME ITSELF, THIS FACT HAS BEEN CLEARLY SPELT OUT BY THE ASSESSEE THAT THE DEDUCTION HAS BEEN CLAIMED FOR INVESTMENT IN MORE T HAN ONE RESIDENTIAL HOUSE. WE HAVE ALREADY SEEN THAT BEFORE AMENDMENT BY FINANCE (NO. 2) ACT, 2014, THERE WAS SCOPE OF SOME AMBIGUITY AND TH E SAME WAS REMOVED BY THIS AMENDMENT AND THEREFORE, FOR THE PERIOD BEF ORE THIS AMENDMENT, WHERE THE ASSESSEE HAS DISCLOSED ALL THE MATERIAL F ACTS, PENALTY IS NOT JUSTIFIED IF THE ASSESSEE HAS MADE CLAIM FOR DEDUCT ION U/S 54 OF THE ACT IN RESPECT OF INVESTMENT IN MORE THAN ONE RESIDENTIAL HOUSE ALTHOUGH THE MATTER MAY BE DIFFERENT FROM ASSESSMENT YEAR 2015-1 6 IN VIEW OF THE AMENDMENT BY FINANCE (NO. 2) ACT, 2014 AS PER WHICH THIS SCOPE OF 4 AMBIGUITY HAS BEEN REMOVED. IN THE PRESENT CASE, T HE ASSESSMENT YEAR INVOLVED IS 2006-07 AND THEREFORE, WE HOLD THAT IN THE FACTS OF THE PRESENT CASE, PENALTY U/S 271(1)(C) IS NOT JUSTIFIED. WE, THEREFORE, DELETE THE SAME. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GAROD IA ) JUDICIAL MEMBER ACCOUNTANT MEMB ER DATED:04/03/2016 *SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR