SHRI DINESH NAGPAL, JAIPUR V. INCOME TAX OFFICER (T& J), JAIPUR

ITA 1017/JPR/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6207 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 21-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: POONAM RAI DCIT DHK
• Assessee Lawyers: ANURAG GOYAL CAS
• Keywords: Sale consideration of property below Jantri Value; Capital asset; Assessment record; Revised return
• Section: 50C; 54F; 139(5)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA NO. 1017/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14. SHRI DINESH NAGPAL, 3/67, JAWAHAR NAGAR, JAIPUR. CUKE VS. THE INCOME TAX OFFICER (T & J) O/S COMMISSIONER OF INCOME TAX-2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ABEPN 3819 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI ANIL GOYAL & SHRI ANURAG GOYAL (CAS) JKTLO DH VKSJ LS@ REVENUE BY : SMT. POONAM RAI (DCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 02.04.2018 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 04/04/2018. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 7 TH NOVEMBER, 2017 OF LD. CIT (A)-2, JAIPUR FOR THE ASSESSMENT YEAR 2013-14. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS :- 1. THE ORDERS OF LEARNED AO AND CIT (A) ARE BAD I N LAW AND AGAINST FACTS OF THE CASE. 2. THE LEARNED AO HAS ERRED IN COMPUTING THE INCOME OF THE ASSESSEE FOR LONG TERM CAPITAL GAINS AT RS. 5,98,46 4/- AFTER DISALLOWING THE CLAIM OF THE ASSESSEE FOR DEDUCTION OF RS. 5,98,464/- U/S 54F OF INCOME TAX ACT. LEARNED CIT ( A) HAS ERRED IN CONFIRMING THE ORDER OF LEARNED AO. 3. LEARNED AO AND CIT (A) HAVE ERRED IN NOT FOLLOWI NG BINDING CIRCULAR NO. 14(XI-35) OF 1955 DATED 11.4.55 OF CBD T SUPPORTED BY PLETHORA OF JUDGEMENTS FROM HONBLE SUPREME COUR T. 2 ITA NO. 1017//JP/2017 SHRI DINESH NAGPAL, JAIPUR. 4. LEARNED CIT (A) HAS ERRED IN NOT ALLOWING THE DE DUCTION U/S 54F OF RS. 5,98,464/- CLAIMED BY THE ASSESSEE BEFORE HI M EVEN THOUGH HE HAD ALL THE POWERS TO ENTERTAIN SUCH CLAI M. 5. THE ASSESSEE CRAVES HIS RIGHT TO ADD, ALTER, AME ND OR DELETE ANY GROUNDS OF APPEAL AT THE TIME OF HEARING OR EARLIER . 2. THE ONLY ISSUE ARISES IN THIS APPEAL OF THE ASSE SSEE IS REGARDING DENIAL OF DEDUCTION UNDER SECTION 54F FOR WANT OF FILING THE REVISED RETURN OF INCOME. THE ASSESSEE IS AN INDIVIDUAL AND RUNNING A PETROL PUMP IN THE NAME OF M/S. SAACHI HP AT BASSI TEHSIL, JAIPUR. THE ASSESSEE FILED HIS RE TURN OF INCOME ON 29.09.2013 DECLARING TOTAL INCOME OF RS. 3,86,100/-. DURING T HE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, THE AO NOTED THAT IN THE COMPUTATION O F INCOME THE ASSESSEE HAS DECLARED LOSS OF RS. 1,62,808/- ON ACCOUNT OF SALE OF LAND. THE AO ASKED THE ASSESSEE TO FURNISH THE COPY OF SALE DEED OF THE SO LD PROPERTY ON WHICH THE ASSESSEE HAS CLAIMED CAPITAL GAIN LOSS. IN RESPONS E, THE ASSESSEE FILED REVISED COMPUTATION OF INCOME AND HAS SHOWN INCOME OF RS. 5 ,98,464/- FROM SALE OF LAND UNDER THE HEAD INCOME FROM LONG TERM CAPITAL GAINS BY CONSIDERING DLC RATE AS FULL VALUE CONSIDERATION. THE ASSESSEE HAS ALSO SU BMITTED BEFORE THE AO THAT THE ASSESSEE HAS SURRENDERED THIS ADDITIONAL INCOME AND ALSO PAID DUE TAX ON THE SAME VIDE CHALLAN, COPY OF WHICH FILED BEFORE THE AO. T HE ASSESSEE HAD AGAIN FILED A REVISED COMPUTATION OF INCOME AND CLAIMED DEDUCTION UNDER SECTION 54F AGAINST THE HOUSE PURCHASED BY THE ASSESSEE ALONG WITH FATHER A ND TWO BROTHERS IN WHICH ASSESSEE CLAIMED TO HAVE 1/4 TH SHARE. THUS THE ASSESSEE CLAIMED A DEDUCTION UNDE R SECTION 54F AGAINST THE CAPITAL GAIN EARLIER OFFERE D TO TAX. THE AO REJECTED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAS FAILED TO FILE THE REVISED RETURN OF INCOME AS PER THE PROVISIONS OF SECTION 139(5) A ND, THEREFORE, THE AO RELIED UPON 3 ITA NO. 1017//JP/2017 SHRI DINESH NAGPAL, JAIPUR. THE DECISION OF THE HONBLE SUPREME COURT IN THE CA SE OF GOETZE (INDIA) LTD. VS. CIT (2006) 284 ITR 323 (SC) AND HELD THAT THE FRESH CLA IM CANNOT BE ALLOWED TO THE ASSESSEE WITHOUT A VALID REVISED RETURN. THE ASSES SEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT (A) BUT COULD NOT SUCCEED. 3. BEFORE US, THE LEARNED A/R OF THE ASSESSEE SUBMI TTED THAT THE CLAIM OF DEDUCTION UNDER SECTION 54F IS PURELY LEGAL IN NATU RE AND ALSO IN RESPECT OF THE INCOME WHICH WAS OFFERED TO TAX DURING THE COURSE O F ASSESSMENT PROCEEDINGS. THEREFORE, IT IS NOT A FRESH CLAIM WHICH REQUIRES A NY REVISED RETURN OF INCOME BUT THE CLAIM WAS AGAINST THE INCOME ASSESSED TO TAX BY THE AO AS PER THE REVISED COMPUTATION OF INCOME FILED BY THE ASSESSEE. THE L D. A/R FURTHER CONTENDED THAT THE LD. CIT (A) OUGHT TO HAVE ACCEPTED THE CLAIM OF THE ASSESSEE INSTEAD OF REJECTING THE SAME ON THE GROUND OF NON FILING OF RETURN OF INCOM E. IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPON THE DECISION OF HONBLE JURISDIC TIONAL HIGH COURT IN THE CASE OF CIT VS. RAJASTHAN FASTENERS P. LTD. 363 ITR 271 (RA J.) AND SUBMITTED THAT THE HONBLE HIGH COURT HAS HELD THAT THERE IS NO RESTRI CTION OR LIMITATION ON THE POWERS OF THE APPELLATE AUTHORITY TO ENTERTAIN AND CONSIDER A CLAIM WITHOUT FILING THE REVISED RETURN OF INCOME WHEN ALL THE RELEVANT FACTS WERE A LREADY AVAILABLE ON THE ASSESSMENT RECORD. THE LD. A/R HAS ALSO RELIED UPO N THE CBDT CIRCULAR NO. 14(XL- 35) OF 1955 DATED 11.04.1955 AND SUBMITTED THAT THE AO IS SUPPOSED TO ASSESS THE CORRECT INCOME AND SHOULD NOT TAKE THE ADVANTAGE OF ANY MISTAKE OF THE ASSESSEE IN NOT MAKING A CLAIM IN THE RETURN OF INCOME. 3.1. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED T HAT IT IS NOT A SIMPLE CASE OF CLAIM OF DEDUCTION UNDER SECTION 54F BUT THE ASSESS EE HAS INITIALLY TRIED TO CONCEAL THE FULL VALUE CONSIDERATION OF THE TRANSACTION OF SALE OF PROPERTY AND WHEN THE AO 4 ITA NO. 1017//JP/2017 SHRI DINESH NAGPAL, JAIPUR. HAS POINTED OUT, THE ASSESSEE HAS SURRENDERED THE I NCOME BY FILING A REVISED COMPUTATION. THE ASSESSEE THEN AGAIN FILED A SECON D REVISED COMPUTATION AND CLAIMED DEDUCTION UNDER SECTION 54F WHICH SHOWS THA T THE ASSESSEE DID NOT DISCLOSE THE TRANSACTION OF PURCHASE OF A NEW PROPERTY IN TH E ORIGINAL RETURN OF INCOME AND EVEN AT THE TIME OF FILING THE FIRST REVISED COMPUT ATION OF INCOME. THE ASSESSEE PURCHASED A NEW PROPERTY ON 14.8.2012 BUT THE SAME WAS NOT DISCLOSED IN THE RETURN OF INCOME FILED BY THE ASSESSEE SUBSEQUENT T O THAT PURCHASE. THE LD. D/R HAS ALSO OBJECTED FOR ADMISSION OF THIS CLAIM UNDER SEC TION 54F BY THE APPELLATE AUTHORITY ON THE GROUND THAT THE CLAIM INVOLVED LEGAL AS WELL AS FACTUAL ASPECTS AND, THEREFORE, IT REQUIRES VERIFICATION OF FACTS FOR ADJUDICATION OF THE ISSUE. THE LD. D/R HAS FURTHER CONTENDED THAT THE DECISION RELIED UPON BY THE ASSE SSEE IS NOT APPLICABLE IN THE FACTS OF THE PRESENT CASE. 3.2 IN RE-JOINDER, THE LD. A/R HAS SUBMITTED THAT T HE ASSESSEE HAS DULY DISCLOSED THE STAMP VALUATION OF THE SALE TRANSACTION AS PER THE COPY OF THE SALE DEED AT PAGE 36 OF THE PAPER BOOK WHICH CLEARLY SHOWS THE DLC RA TES ON WHICH THE STAMP DUTY WAS PAID. THEREFORE, THERE IS NO CONCEALMENT BY THE ASSESSEE OF ANY PARTICULARS OF INCOME OR FACTS. IN RESPECT OF THIS TRANSACTION, T HE LD. A/R HAS FURTHER SUBMITTED THAT THE ASSESSEE ACCEPTED THE FULL VALUE CONSIDERA TION AS THE VALUE ADOPTED BY THE STAMP VALUATION AUTHORITY AND ACCORDINGLY SURRENDER ED THE INCOME AND PAID THE DUE TAX. THUS THE ASSESSEE HAS FULLY CO-OPERATED WITH T HE ASSESSING AUTHORITY AND HAS ACTED IN BONAFIDE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. IN THE ORIGINAL RETURN OF INCOME FILED BY T HE ASSESSEE, THE ASSESSEE HAS SHOWN THE SALE CONSIDERATION OF THE PROPERTY AS PER THE SALE DOCUMENT WITHOUT 5 ITA NO. 1017//JP/2017 SHRI DINESH NAGPAL, JAIPUR. CONSIDERING THE FULL VALUE CONSIDERATION IN TERMS O F SECTION 50C OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS WHEN THE AO AS KED THE ASSESSEE TO GIVE THE DETAILS OF THE DLC RATES OF THE PROPERTY, THE ASSES SEE CAME OUT WITH SURRENDER OF THE INCOME ON ACCOUNT OF SALE OF THE PROPERTY IN QUESTI ON BY ACCEPTING THE FULL VALUE CONSIDERATION AS THE VALUE ADOPTED BY THE STAMP VAL UATION AUTHORITY. THUS THE INCOME SURRENDERED BY THE ASSESSEE DURING THE ASSES SMENT PROCEEDINGS AS PER THE DEEMING PROVISION OF SECTION 50C AND IT IS NOT THE CASE OF THE AO THAT THE ASSESSEE HAS RECEIVED SALE CONSIDERATION MORE THAN THE CONSI DERATION SHOWN IN THE SALE DEED. THE AO HAS ALSO NOT CONDUCTED ANY ENQUIRY ON THIS P OINT AND ACCEPTED THE INCOME SURRENDERED BY THE ASSESSEE. THE ASSESSEE THEN ALS O CLAIMED DEDUCTION UNDER SECTION 54F ON ACCOUNT OF PURCHASE OF NEW PROPERTY BY THE ASSESSEE. THE SALE DEED THROUGH WHICH THE ASSESSEE PURCHASED THE NEW PROPER TY WAS ALSO FILED BEFORE THE AO. HOWEVER, THE AO DID NOT ENTERTAIN THE CLAIM OF THE ASSESSEE ON TECHNICAL GROUND THAT THE ASSESSEE HAS NOT FILED THE REVISED RETURN OF INCOME. ON APPEAL, THE LD. CIT (A) HAS ALSO DECLINED TO ENTERTAIN THE CLAI M OF THE ASSESSEE AND REJECTED THE SAME ON THRESHOLD AS UNDER :- AS REGARDS DEDUCTION U/S 54F IT IS SEEN THAT NO CLAIM WHAT SO EVER WAS FILED BEFORE THE AO IN THE ORIGINAL RETURN NOR A REVISED RETURN WAS FILED. NO CLAIM FOR DEDUCTION CAN BE MADE AT THE AP PELLATE STAGE UNLESS THERE ARE REASONS WHICH PREVENTED THE ASSESSEE FROM SUCH ACTION AND NO SUCH REASONS HAVE BEEN BROUGHT OUT. AS REGARDS C ONSIDERING THE CLAIM IN APPEAL PROCEEDINGS HONORABLE SUPREME COURT IN THE CASE OF GOETZE INDIA LTD. VS. CIT 284 ITR 323 ALLOWED ITAT TO CONSIDER SUCH CLAIM WHICH WAS NOT MADE BY WAY OF RETURN OF INCOME . HOWEVER, APEX COURT DID NOT ALLOW THE SAME LIBERTY TO THE CIT (A) WHOSE POWERS ARE CO TERMINUS WITH THE ASSESSING OFFICER. IN VIEW OF THE SAME THE CLAIM UNDER SECTION 54F IS REJECTED. 6 ITA NO. 1017//JP/2017 SHRI DINESH NAGPAL, JAIPUR. THUS IT IS CLEAR THAT NEITHER THE AO NOR THE LD. CI T (A) HAS EXAMINED THE CLAIM OF THE ASSESSEE ON MERITS BUT REJECTED THE SAME IN LIMINI FOR WANT OF FILING THE REVISED RETURN OF INCOME. IT IS PERTINENT TO NOTE THAT THE CLAIM UNDER SECTION 54F WAS NOT MADE BY THE ASSESSEE AGAINST THE INCOME WHICH WAS O FFERED TO TAX IN THE RETURN OF INCOME SO THAT THE CONDITION OF FILING THE REVISED RETURN CAN BE ATTRACTED. IN THIS CASE THE AO PROPOSED TO MAKE AN ADDITION AS PER PROVISIO NS OF SECTION 50C WHICH WAS ACCEPTED BY THE ASSESSEE AND SURRENDERED THE INCOME IN TERMS OF THE PROVISIONS OF SECTION 50C. THUS THE INCOME OF THE ASSESSEE WAS A SSESSED AS PER THE DEEMING PROVISIONS OF SECTION 50C OF THE ACT IN RESPECT OF THE SALE OF PROPERTY WHICH IS LONG TERM CAPITAL ASSET. THEREFORE, THE INCOME ASSESSED BY THE AO DURING THE SCRUTINY ASSESSMENT IS AN ADDITION BY INVOKING THE DEEMING P ROVISION AND HENCE THE CLAIM OF DEDUCTION UNDER SECTION 54F MADE BY THE ASSESSEE AG AINST THE SAID ADDITION/SURRENDER MADE DURING THE COURSE OF ASSESS MENT PROCEEDINGS. EVEN OTHERWISE, WHEN THE ASSESSEE IN THE REVISED RETURN HAS DECLARED LONG TERM CAPITAL LOSS THEN THE QUESTION OF CLAIM UNDER SECTION 54F D OES NOT ARISE. ONCE THE LONG TERM CAPITAL GAIN IS ASSESSED AS PER THE PROVISIONS OF SECTION 50C OF THE ACT, THEN THE CLAIM OF DEDUCTION UNDER SECTION 54F IS CONSEQU ENTIAL TO THE ADDITION MADE BY THE AO WHICH WAS NOT AN INCOME DECLARED IN THE RETU RN OF INCOME. HENCE THE APPROACH OF THE AUTHORITIES BELOW REJECTING THE CLA IM OF THE ASSESSEE BY APPLYING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF GO ETZE (INDIA) LTD. VS. CIT (SUPRA) IS NOT RIGHT AND PROPER. IN ANY CASE, THERE IS NO EMBARGO IN THE JURISDICTION AND POWERS OF THE LD. CIT (A) TO ENTERTAIN A FRESH CLAI M IF THE RELEVANT FACTS FOR ADJUDICATION OF THE SAID CLAIM ARE ALREADY ON RECOR D. IN THE CASE IN HAND, THERE IS NO DENIAL THAT THE ASSESSEE FILED ALL THE RELEVANT DOC UMENTS WHEN THE ASSESSEE HAS FILED 7 ITA NO. 1017//JP/2017 SHRI DINESH NAGPAL, JAIPUR. THE REVISED COMPUTATION OF INCOME CLAIMING DEDUCTIO N UNDER SECTION 54F AND THE AO WITHOUT CONSIDERING THE CLAIM ON MERITS HAS REJECTE D ON TECHNICAL GROUND. THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CA SE, WE ARE OF THE CONSIDERED VIEW THAT THE LD. CIT (A) IS NOT JUSTIFIED IN REJECTING THE CLAIM OF THE ASSESSEE. ACCORDINGLY, WE SET ASIDE THIS ISSUE TO THE RECORD OF LD. CIT (A) FOR RE-CONSIDERING THE SAME ON MERITS AFTER VERIFYING THE FACTS AS ALREADY AVAILABLE ON RECORD AND TO ASCERTAIN WHETHER ALL THE CONDITIONS AS REQUIRED UN DER SECTION 54F ARE BEING FULFILLED BY THE ASSESSEE. NEEDLESS TO SAY THAT THE ASSESSEE BE GIVEN AN OPPORTUNITY OF HEARING BEFORE PASSING THE FRESH ORDER. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 04/04/ 2018. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 04/04/2018. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI DINESH NAGPAL, JAIPUR. 2. THE RESPONDENT THE ITO (T & J), JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 1017/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 8 ITA NO. 1017//JP/2017 SHRI DINESH NAGPAL, JAIPUR.