Smt Kusum agarwal(Bansal), C/O.Rohit Agency, Siliguri V. ITO,Ward-1(4), Siliguri, Siliguri

ITA 1089/KOL/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7878 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2014
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 23-07-2012
• Court: TRIBUNAL
• Department Lawyers: D BANERJEE JCIT LD
• Assessee Lawyers: S M SURANA LD
• Keywords: Capital asset; Opportunity of being heard
• Section: 143(3); 54F; 54; 263; 63

Judgement Text

, B , , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA ( ) , , [BEFORE HON BLE SHRI MAHAVIR SINGH, JM & HON BLE SHRI SHAMIM YAHYA, A M ] I.T.A NO. 1 089 /KOL/201 2 A.Y 200 5 - 06 SMT. KUSUM AGARWAL (BANSAL) VS. I.T.O W 1(4), SILIGURI PAN: ACIPA8894N [ APPELLANT ] [ R ESPONDENT ] APP ELLANT BY : SHRI S .M SURANA, ADVOCATE, LD.AR RESPONDENT BY : SHRI D.BANERJEE, JCIT/LD.SR.DR /DATE OF HEARING : 1 2 - 12 - 2014 /DATE OF PRONOUNCEMENT: 12 - 12 - 2014 / ORDER , SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD.CIT (A) DATED 2 6 - 04 - 201 2 PERTAINING TO ASSESSMENT YEAR 200 5 - 06 2. THE ISSUE RAISED IN THE APPEAL BY THE ASSESSEE IS THAT THE LD.CIT(A) HAS ERRED IN NOT ALLOWING THE DEDUCTION U/S. 54F OF THE I.T ACT 1961. 3. IN THIS CASE THE ASSESSEE HAS CLAIMED DEDUCTION U/S. 5 4F OF THE I.T ACT 1961 IN RESPECT OF LONG TERM CAPITAL GAIN . THE SAME WAS ALLOWED BY THE AO AND ASSESSMENT WAS COMPLETED U/S. 143(3) OF THE ACT ON 13 - 12 - 2007 . SUBSEQUENTLY, THE LD.CIT PASSED AN ORDER U/S. 2 63 OF THE I.T ACT 1961 ON 25 - 03 - 2010 BY OB SERVING THAT THE ASSESSEE HAS CLAIMED THAT SHE HAS PURCHASED A LANDED PROPERTY & STRUCTURE, BUT THE DEED OF PURCHASE MENTIONS ONLY LAND. HENCE, HE WAS OF THE VIEW THAT THE ORDER OF THE AO WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVE NUE. THE AO WAS ASKED TO MAKE ENQUIRY AND PASS A SPEAKING ORDER. PURSUANT TO THIS ORDER OF THE AO EXAMINED THE ISSUE . THE ASSESSEE SUBMITTED THAT SHE HAD PURCHASED A LANDED PROPERTY WITH A RESIDENTIAL STRUCTURE BUT THE DEED WRITER WHI LE PREPARING THE DEED OF CONVEYANCE HAD OMITTED TO MENTION ABOUT THE RESIDENTIAL STRUCTURE. AS SUCH, THE ASSESSEE HAS PLEADED THAT THE EXEMPTION U/S.54F MAY BE ALLOWED. THE AO DEPUTED A DEPARTMENTAL INSPECTOR TO MAKE AN ENQUIRY IN THIS REGARD . THE DEP ARTMENTAL INSPECTOR SUBMITTED A WRITTEN REPORT STATING THAT A NEW BUILDING IS ITA NO . 1089/KOL/2012 - B - AM SMT. KUSUM AGARWAL (BANSAL) 2 UNDER CONSTRUCTION AT THE SAID LAND, THE SITE PLAN OF WHICH WAS APPROVED BY THE SILIGURI MUNICIPAL CORPORATION ON 09 - 03 - 2010. THE ASSESSEE WAS CONFRONTED WITH THIS REPORT . IN THIS REGARD THE A SSESSEE SUBMITTED AN AFFIDAVIT DATED 22 - 12 - 2010 , WHEREIN THE ASSESSEE HAD AFFIRMED THE EXISTENCE OF HOUSE PROPERTY AT THE TIME OF PURCHASE , WHICH WAS SUPPORTED BY A JOINT STATEMENT BY LOCAL NEIGHBORING RESIDENTS CONFIRMING THE EXISTENCE OF SUCH RESIDE NTIAL STRUCTURE IN PLAIN PAPER. THE AO WAS NOT CONVINCED WITH THE ABOVE EXPLANATION OF THE ASSESSEE. HE DENIED THE EXEMPTION TO THE ASSESSEE . 4. ON APPEAL, THE LD.CIT(A) HAS AFFIRMED THE AO S ORDER BY OBSERVING AS UNDER: - I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE LD . AR AND ALSO PER USED THE ASSESSMENT ORDER. THE BASIC REQUIREMENT FOR GRANTING EXEMPTION U/S.54 OF THE ACT IS THAT THE ASSESSEE SHOULD PROVE BEYOND DOUBT THAT THE NET CONSIDERATION ARISING OUT OF TRANSFER OF CAPITAL ASSET HAS BEEN INVESTED IN PURCHASE OF A RESIDENTIAL H OUSE. IN THE INSTANT CASE THE ASSESSEE HAS UTTERLY FAILED TO PROVE BEYOND DOUBT THAT SHE HAS INVESTED THE NET CONSIDERATION ARISING OUT OF TRANSFER OF CAPITAL ASSET IN THE PURCHASE OF RESIDENTIAL HOUSE. THE DOCUMENTS SUBMITTED BY THE ASSESSEE BEFORE THE AO IN COURSE OF ASSESSMENT PROCEEDINGS U/S. 143(3)/263 OF THE INCOME TAX ACT, 1961 DO NOT CONCLUSIVELY PROVE THAT SHE PURCHASED LAND WITH RESIDENTIAL STRUCTURE. IN COURSE OF APPELLATE PROCEEDINGS THESE DOCUMENTS WERE EXAMINED BUT THE DOCUMENTS WERE NOT AD EQUATE ENOUGH TO PROVE BEYOND DOUBT THAT THE LAND PURCHASE BY THE ASSESSEE HAD A RESIDENTIAL STRUCTURE AT THE TIME OF PURCHASE. DEED OF CONVEYANCE IS SILENT ABOUT THE RESIDENTIAL STRUCTURE ON THE LAND PURCHASED BY THE ASSESSEE. AFFIDAVIT FILED BY THE AS SESSEE AND JOINT STATEMENT OF SOME INDIVIDUALS ON A PLAIN PIECE OF PAPER ARE NOT SUCH EVIDENCES WHICH CAN PROVE BEYOND DOUBT EXISTENCE OF RESIDENTIAL STRUCTURE ON LAND PURCHASED BY THE ASSESSEE AT THE TIME OF ITS PURCHASE. MUNICIPAL HOLDING NUMBER IN THE D EED OF CONVEYANCE DOES NOT CONCLUSIVELY PROVE EXISTENCE OF A RESIDENTIAL STRUCTURE ON LAND PURCHASED BY THE ASSESSEE. THE ASSESSEE COULD NOT SUBMIT ANY MUNICIPAL RECORD INDICATING EXISTENCE OF SUCH STRUCTURE ON THE LAND IN QUESTION PURCHASED BY THE ASS ESSEE. IN SUCH CIRCUMSTANCES, I AM NOT INCLINED TO INTERFERE WITH THE AO S ACTION OF DISALLOWANCE OF EXEMPTION U/S. 54F TO THE ASSESSEE. THE ADDITION OF RS.4,85,654/ - MADE BY THE AO ON ACCOUNT OF DISALLOWANCE OF EXEMPTION U/S. 54 IS CONFIRMED. 5 . AGAIN ST THE ABOVE ORDER OF THE LD.CIT (A) THE ASSESSEE IS IN APPEAL BEFORE US. 6 . WE HAVE HEARD BOTH THE LD. COUNSEL AND PERUSED THE RECORD . THE LD. COUNSEL OF THE ASSESSEE REITERATED THE SUBMISSIONS OF THE ASSESSEE THAT THE ASSESSEE HAS PURCHASED LAND AND STRU CTURE THEREON . HE REFERRED TO THE JOINT STATEMENT BY LOCAL NEIGHBORING RESIDENTS CONFIRMING THE EXISTENCE OF SUCH RESIDENTIAL STRUCTURE IN THIS REGARD. HE REITERATED THAT THE PLEA THAT THERE WAS OMISSION IN THE CONVEYANCE DEED REGARDING STRUCTURE ON LAND. HE SUBMITTED A DOC UMENT ITA NO . 1089/KOL/2012 - B - AM SMT. KUSUM AGARWAL (BANSAL) 3 OBTAINED FROM SILIGURI MUNICIPAL CORPORATION REGARDING MUNICIPAL TAX . THE LD. COUNSEL CLAIMED THAT THE SAID DOCUMENT COGENTLY PROVED THAT THE STRUCTURE WAS EXISTING ON THE LAND. HOWEVER, THE LD. COUNSEL SUBMITTED THAT THIS DOCUMENT WAS NOT PRODUCED BEFORE THE AUTHORITIES BELOW, HENCE, THE SAME MAY BE REFERRED TO THE FILE OF THE AO FOR EXAMINATION. HE PLEADED THAT THE ASSESSEE SHOULD BE ALLOWED THE CLAIM OF EXEMPTION/ DEDUCTION U/S. 54F OF THE ACT AFTER THE EXAMINATION OF THE VERACITY OF THE SAID DOCUMENT BY THE AO . THE LD. COUNSEL PLEADED THAT IN ANY CASE IT IS NOT IN DOUB T THAT THE ASSESSEE HAS PURCHASED A LAND AND HAS CONSTRUCTED THEREON . THUS, HE SUBMITTED THAT ASSESSEE IS ENTITLED FOR EXEMPTION U/S. 54F OF THE ACT AS PER MANDATE OF LAW. THE LD.DR, ON THE OTHER HAND, DID NOT HAVE A NY SERI OUS OBJECTION TO REMIT THE MATT ER TO THE FILE OF THE AO FOR EXAMINATION OF THE DOCUMENT BEING SUBMITTED BY THE ASSESSEE S COUNSEL IN SUPPORT OF THE CLAIM THAT STRUCTURE WAS EXISTING WHEN THE ASSESSEE HAS PURCHASED THE SAID LAND. UPON CAREFUL CONSIDERATION, WE ARE INCLINED TO REMIT THIS ISSUE TO THE FILE OF THE AO. THE AO IS DIRECTED TO EXAMINE THE SAID DOCUMENT OBTAINED FROM SILIGURI MUNICIPAL CORPORATION BY THE ASSESSEE , AND DECIDE AS PER LAW . NEEDLESS TO ADD THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. 7 . IN THE RESULT, THE A PPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE AS STATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 12 - 12 - 2014 SD/ - SD/ - [ , ] [ , ] [ MAHAVI R SINGH , JUDICIAL MEMBER] [ SHAMIM YAHYA, ACCOUNTANT MEMBER / DATED: 12 - 12 - 2014 / COPY OF THE ORDER FORWARDED TO: 1 . /APPELLANT - SMT. KUSUM AGARWAL ( BANSAL) C/O ROHIT AGENCY, NEHRU ROAD, SILIGURI,WB - 734001. 2 / RESPONDENT : I T O W1(4) , SILIGURI, 734101 (WB). 3 . / CIT, 4 . ( )/ CIT(A), 5 . / DR, KOLKATA BENCHES, KOLKATA *PP/SPS [ / TRUE COPY] / BY ORDER, /ASSTT REGISTRAR