Mirza Arif Beg, Gorakhpur V. ACIT, Range - 1, Gorakhpur

ITA 100/VNS/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 1071 (ITAT-VARANASI)
• Duration Of Justice: 3 year(s) 1 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 09-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUBHASH CHA ND
• Keywords: Additional evidence; Set aside; Capital Gains
• Section: 139; 143(3); 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VARANASI CIRCUIT BENCH, VARANASI BEFORE HON’BLE SH.VIJAY PAL RAO, JUDICIAL MEMBER AND HON’BLE SH. RAMIT KOCHAR, ACCOUNTANT MEMBER ITA No.100/VNS/2019 Assessment Year: 2014-15 Mirza Arif Beg, H. No. 184-B, New Colony, New Beniganj Chowk, Jafra Bazar, Gorakhpur, U.P. PAN-ABXPB6421C v. Commissioner of Income Tax, Range-1, Gorakhpur (Appellant) (Respondent) Appellant by: Sh. Subhash Chand, Advocate Respondent by: Sh. A.K. Singh, Sr. DR Date of hearing: 26.05.2022 Date of pronouncement: 26.05.2022 O R D E R SHRI VIJAY PAL RAO, JUDICIAL MEMBER: This appeal by the assessee is directed against the order dated 21.12.2018 of CIT(A) for the assessment year 2014-15. The assessee has raised the following grounds:- “1. Because the ACIT Range-1 has erred in law on facts in completing the assessment u/s 143(3) of the I.T. Act, 1961 at income of Rs. 66,99,010/-. 2. Because the Commissioner of Income Tax Appeal has erred in law of facts in confirming the addition of Rs. 20,95,910/- on account of long term capital gains. 3. Because the Commissioner of Income Tax Appeal has erred in law of facts in confirming the addition of Rs. 3,39,900/- on account of Commission. 4. Because the Commissioner of Income Tax Appeal has erred in law of facts in confirming the addition of Rs. 10,65,509/- on Caretaker Expenses. 5. Because in view of factual and legal position no addition is called for and addition made by the ACIT is erroneous. 6. Because the order against is contrary to law facts and principals of natural justice. ITA No.100/VNS/2019 Mirza Arif Beg 2 7. Assessee may amend, alter or add any grounds of appeal before or at the time of appeal.” 2. The assessee has filed an application under Rule 29 of the ITAT Rules, 1963 for admission of additional evidence. The learned AR of the assessee has submitted that the AO has denied the claim of deduction under section 54F on the ground that the assessee has purchased an agricultural land and therefore, not eligible under section 54F of the Income Tax Act. The learned AR has submitted that the assessee has also purchased a land vide sale deed dated 31 st July, 2015 and thereafter constructed the house. Thus, the learned AR has submitted that the assessee is entitled for deduction under section 54F in respect of this investment made for the residential plot and construction of house thereupon. He has further submitted that the capital gain arises on sale of various piece of land on 30 th July, 2013, 29 th August, 2013, 29 th August, 2013 and 20 th November, 2013 and the assessee has purchased the land on 31 st July, 2015 and thereafter constructed a house upon the same. Thus, the learned AR has submitted that the investment was made within the time period prescribed under section 54F of the Income Tax Act. He has further contended that the Hon’ble Punjab & Haryana High Court in the case of Commissioner of Income Tax vs. M/s Jagriti Aggarwal 339 ITR 610 has held that if the investment is made before the due date of the filing of the return under section 139 which includes the due date under section 139(4), then the assessee is eligible for deduction under section 54F of the Income Tax Act. The learned AR has further contended that the assessee invested the money in construction of the residential house within the period as prescribed under section 54F and merely because construction was not completed in all respect, the deduction under section 54F cannot be denied. He has relied upon the judgment of Hon’ble Karnataka High Court in the case of Commissioner of Income Tax vs. Sri. Sambandam Udaykumar 206 taxman 150. Thus, the learned AR has submitted that the additional evidence filed by the ITA No.100/VNS/2019 Mirza Arif Beg 3 assessee is very much relevant to the claim of the deduction under section 54F of the Income Tax Act and the same may be admitted. 3. On the other hand, the learned DR has submitted that the assessee was having sufficient time and opportunity to file its evidence before the authorities below and then claim the deduction under section 54F of the Income Tax Act. However, the assessee has not explained the reasons for not filing this evidence before the authorities below. He has relied upon the orders of the authorities below. 4. We have considered the rival submissions as well as the relevant material on record. The main dispute is regarding denial of deduction under section 54F of the Act and the other grounds raised by the assessee are only consequential when after the claim of deduction under section 54F the capital gain is computed by the AO by making certain disallowances / additions. Therefore, the decision on the issue of deduction under section 54F shall have the bearing on the other grounds raised by the assessee. In case the deduction under section 54F is allowed then the other grounds raised by the assessee might become irrelevant and infructuous. The assessee is seeking admission of the additional evidence filed alongwith the application under Rule 29 of the ITAT Rules, 1963. The additional evidence is comprising of the sale deed dated 30.07.2015, whereby the assessee has purchased the residential plot upon which the assessee has stated to have constructed a residential house. Since this evidence was not available before the authorities below and therefore, the same was neither examined by the CIT(A) nor verified by the AO. 5. Prime facie, we find that the additional evidence sought to be filed by the assessee is relevant so far as the claim of deduction under section 54F is concerned. Therefore, in the facts and circumstances of the case and in the interest of justice, when the additional evidence filed by the assessee is a ITA No.100/VNS/2019 Mirza Arif Beg 4 registered sale deed, the same is admitted and the matter is remanded to the record of the AO for the verification and consideration of the same while deciding the issue of deduction under section 54F of the Income Tax Act. Since the matter is set aside to the record of the AO for deciding the issue of deduction under section 54F of the Income Tax Act after consideration of the additional evidence filed by the assessee therefore, we refrain to give opinion on the merits of the issue and case law relied upon by the assessee. The same may be considered by the AO while deciding the issue of deduction under section 54F of the Act. The other grounds raised by the assessee are left open and to be agitated in the appropriate proceedings after the fresh order passed by the AO, if need arises. 6. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on conclusion of hearing on 26.05.2022. Sd/- Sd/- [RAMIT KOCHAR] [VIJAY PAL RAO] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 26/05/2022 Varanasi Sh Copy forwarded to: 1. Appellant- Mirza Arif Beg 2. Respondent-CIT, Range-1 Gorakhpur 3. CIT(A),Varanasi 4. CIT 5. DR By order Sr. P.S. 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