Smt. Ranjana Sharma (Sikhwal), Kolkata V. ITO, Ward - 32(4), Kolkata , Kolkata

ITA 1157/KOL/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5195 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 8 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-01-2020
• Assessment Year: 2013-2014
• Appeal Filed On: 28-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM BILASH MEENA CITSRDR; DHRUBAJ
• Assessee Lawyers: S M SURANA
• Keywords: Capital asset; Assessment record
• Section: 54F; 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 1157 / KOL / 2018 ASSESSMENT YEAR :2013-14 SMT. RANJANA SHARMA (SIKHWAL)/C/O. RAJASTHAN GGUESTHOUSE,19,ZAKARIA STREET, KOLKATA-700 073 [ PAN NO.AKLPS 3351 D ] V/S . INCOME TAX OFFICER,WARD-32(4), 10B,MIDDLETON ROW, KOLKATA-700 017 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI S.M.SURANA, ADVOCATE /BY RESPONDENT SHRI RAM BILASH MEENA, CIT-SR-DR & SHRI DHRUBAJYOTI RAY, CIT-DR /DATE OF HEARING 28-01-2020 /DATE OF PRONOUNCEMENT 19-02-2020 / O R D E R PER S.S.GODARA, JUDICIAL MEMBER:- THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2013-14 ARISES AGAINST THE PRINCIPAL COMMISSIONER OF INCOME TAX-11, KOLKATAS ORDER DATED 14.03.2018 PASSED IN CASE NO.M.NO.PR. CIT-11,KOL/U/S 263/2017- 18/9212-14, INVOLVING PROCEEDINGS U/S 263 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSE. 2. BOTH THE LEARNED REPRESENTATIVES INVITED OUR ATT ENTION TO THE PCITS REVISION DIRECTION UNDER CHALLENGE REGARDING ASSESS EES SEC. 54F DEDUCTION CLAIM AS UNDER:- 2. THE ASSESSMENT RECORDS OF THE ASSESSEE WERE CALL ED FOR, EXAMINED AND ON THE BASIS OF THE VERIFICATION OF THE MATERIALS AVAILABL E ON RECORD, IT WAS FUND THAT THE ORDER ITA NO.1157/KOL/2018 A.Y. 2013-14 SMT. RANJANA SHARMA (SIKHWAL) VS. ITO WD-32(4), KOL PAGE 2 OF ASSESSMENT WAS ERRONEOUS IN SO FAR AS IT IS PREJ UDICIAL TO THE INTEREST OF REVENUE ON THE FOLLOWING GROUNDS:- (A) DURING SCRUTINY OF THE ASSESSMENT FOLDER, IT IS SEEN THAT THE ASSESSEE HAD SOLD A PROPERTY AT SRIDUNGARGARH, RAJASTHAN ON 12/03/2013 AT A CONSIDERATION OF RS.50,00,000/-. THE SAID PROPERTY WAS DECLARED TO B E PURCHASED AT A COST OF RS.60,000/-. HOWEVER THE ASSESSEE FAILED TO PRODUCE THE PURCHASE DEED. IN ABSENCE OF VALID DOCUMENT THE INDEXED COST OF PURCH ASE WAS CONSIDERED AT RS.2,36,683/- (R0,000 X 758/199) AND THE TAXABLE LO NG TERM CAPITAL GAIN (LTCG) WAS COMPUTED AT RS.47,63,317/-. (B) THE ASSESSEE HAD THEN CLAIMED EXEMPTION OF THE SAID LTCG U/S. 54F AS SHE CLAIMED TO HAVE PURCHASED A RESIDENTIAL PROPERTY AT SOUTH CITY GARDEN, KOLKATA AT RS.80,00,000/-. BUT IT IS SEEN THAT DEED OF CONV EYANCE WAS EXECUTED ON 04//80/2011 . (C) AS PER THE PROVISIONS OF SECTION 54F OF THE IT ACT, 1961 WHEN AN INDIVIDUAL OR HUF TRANSFER ANY LONG-TERM CAPITAL ASSET NOT BEING A RE SIDENTIAL HOUSE, AND INVESTS THE NET SALE PROCEEDS TO ACQUIRE A RESIDENTIAL HOUSE, THE E XEMPTION IS AVAILABLE PROVIDED THAT THE ASSESSEE PURCHASED A RESIDENTIAL HOUSE WITHIN O NE YEAR BEFORE OR 2 YEARS AFTER THE DATE ON WHICH THE TRANSFER TOOK PLACE. IN THIS CASE, THE PURCHASE DEED OF CONVEYANCE OF TH E RESIDENTIAL PROPERTY AT SOUTH CITY GARDEN, KOLKATA WAS EXECUTION 04/08/2011 AND S ALE DEED OF PROPERTY AT SRIDUNGARGARH, RAJASTHAN WAS EXECUTED ON 12/03/2013 . SO THERE IS A TIME LAG OF MORE THAN 1YEARE IN BETWEEN TWO TRANSACTIONS THAT R ENDERS THE AS INELIGIBLE FOR CLAIMING EXEMPTION U/S/. 54F. THE EXEMPTION WAS WRO NGLY CLAIMED BY THE ASSESSEE AND WAS WRONGLY ALLOWED IN THE ASSESSMENT AND SO IT WAS IRREGULAR AND PREJUDICIAL TO THE INTEREST OF REVENUE. (D) HENCE, OMISSION TO ACCOUNT FOR RS,47,63,317/- R ESULTED IN AN UNDER-ASSESSMENT OF LONG TERM CAPITAL GAIN OF RS.47,63,317/- WITH THE C ONSEQUENTIAL UNDERCHARGE OF TAX AND INTEREST U/S. 234B. 3. A SHOW CAUSE NOTICE, DATED 15.01.2018, WAS ISSUE D TO THE ASSESSEE REQUIRING IT TO SUBMIT CLARIFICATION OR EXPLANATION TO THE ABOVE IS SUE & ALSO TO SHOW CAUSE WHY REMEDIAL ACTION OF REVENUE OF ASSESSMENT US.263 OF THE ACT WOULD NOT BE TAKEN AGAINST THE ASSESSMENT MADE U/S143(3) DATED 20//01/ 2016. 3. IT IS SUFFICIENTLY CLEAR FROM A PERUSAL OF THE P CITS DETAILED DISCUSSION THAT HE HAS ASSUMED HIS SEC. 263 REVISION JURISDICT ION ON THE SOLE GROUND THAT THE ASSESSEES SALE DEED HAD BEEN REGISTERED ON 12. 03.2013 AS AGAINST THE PURCHASE DEED OF HER RESIDENTIAL PROPERTY IN KOLKAT A ON 04.08.2011 INVOLVING MORE THAN A YEARS GAP AS SPECIFIED IN RELEVANT STA TUTORY PROVISION. THE ASSESSEES CASE ON THE OTHER HAND IS THAT THE SALE DEED / AGREEMENT TO THIS EFFECT DATED 15.06.2012 RUNNING INTO NINE PAGES QUA THE CAPITAL ASSET SOLD IN RAJASTHAN HAD PUT THE PURCHASER CONCERNED IN VACANT PEACEFUL POSSESSION ON THE SAID VERY DATE ONLY AND THEREFORE, THE TIME GAP BETWEEN ASSESSEE ON 03.08.2011 AND 15.06.2012 IS LESS THAN THE STATUTOR Y TIME SPAN OF ONE YEAR. WE FIND FORCE IN LEARNED COUNSELS ARGUMENT TO THIS EFFECT. THIS TRIBUNALS CO- ITA NO.1157/KOL/2018 A.Y. 2013-14 SMT. RANJANA SHARMA (SIKHWAL) VS. ITO WD-32(4), KOL PAGE 3 ORDINATE BENCHS DECISION IN INCOME TAX OFFICER (INTERNATIONAL TAXATION) 3(1)(1) MUMBAI VS. SHRI SUNIL SHIV KHANNA ITA NO.5857/MUM/2016 DECIDED ON 14.05.2018 TAKES NOTE OF HON'BLE BOMBAY HIGH COU RTS JUDGMENT IN COMMISSIONER OF INCOME TAX VS. SMT. BEENA K. JAIN (1996) 217 ITR 363 (BOM) THAT THE CLINCHING ASPECT IN SUCH A CASE IS T HE DATE OF POSSESSION AND PAYMENT OF BALANCE CONSIDERATION ONLY. LEARNED CIT DR FAILS TO DISPUTE THAT GOING BY THE RELEVANT DETAILS FORMING PART OF CASE RECORD, THE CLINCHING FACT HEREIN OF ASSESSEES CONVEYANCE DEED REGISTERED ON 03.08.2011 AND AGREEMENT TO SELL ALONGWITH POSSESSION ON 15.06.201 2 HAVE BEEN ACCEPTED AS CORRECT. WE CONCLUDE IN THESE FACTS AND CIRCUMST ANCES THAT THE ASSESSING OFFICER HAD RIGHTLY NOT DISALLOWED THE ASSESSEES C LAIM OF SEC. 54F DEDUCTION DURING THE COURSE OF SCRUTINY ASSESSMENT AND THEREF ORE, THE SAME IS NOT AN INSTANCE INVOLVING AN ERRONEOUS ASSESSMENT CAUSING PREJUDICE TO THE INTEREST OF REVENUE. WE MAKE IT CLEAR THAT HON'BLES APEX CO URTS LANDMARK DECISION IN MALABAR INDUSTRIAL CO. LTD. VS. COMMISSIONER OF INC OME TAX (2000) 243 ITR 83 (SC) AND COMMISSIONER OF INCOME TAX VS. MAX INDIA (2007) 295 ITR 282 (SC) HAS SETTLED THE LAW LONG BACK THAT THE FOREGOI NG TWIN CONDITIONS MUST / SIMULTANEOUSLY CO-EXIST BEFORE REVISION DIRECTION J URISDICTION U/S 263 OF THE ACT IS ASSUMED. WE ACCORDINGLY REVERSE THE PCITS REVIS ION DIRECTIONS UNDER CHALLENGE AND RESTORE REGULAR ASSESSMENT DATED 20.0 1.2016 ACCEPTING THE ASSESSEES SEC. 54F DEDUCTION TO THIS EFFECT. 4. THIS ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 19/ 02/2020 SD/- SD/- ( &) (( &) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) KOLKATA, *DKP SR.P.S )- 19 / 02 /20 20 ITA NO.1157/KOL/2018 A.Y. 2013-14 SMT. RANJANA SHARMA (SIKHWAL) VS. ITO WD-32(4), KOL PAGE 4 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-SMT. RANJANA SHARMA (SIKHWAL), C/O RAJAS THAN GUEST HOUSE, 19 ZAKARIA STREET, KOLKATA-700 073 2 . /RESPONDENT-ITO,WD-32(4), 10B, MIDDLETON ROW, KOLKA TA-700 017 3. 4 5 / CONCERNED CIT KOLKATA 4. 5- / CIT (A) KOLKATA 5 . 8 ((4, 4, / DR, ITAT, KOLKATA 6. = / GUARD FILE. BY ORDER/ , /TRUE COPY/ 4,