Sri Mohd Aijazuddin, R.R.Dist V. DCIT, Central Circle-6, Hyderabad

ITA 1263/HYD/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66198 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 01-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMISHA S GUPT
• Assessee Lawyers: A V RAGHURAM
• Keywords: Capital asset
• Section: 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER I.T.A. NO. 1260/HYD/2010 A.Y. 2008-09 SHRI MOHD. IMAMUDDIN NARSINGHI VILLAGE, RR DIST. PAN: AAVPI8909F VS. DY. CIT CENTRAL CIRCLE-6 HYDERABAD APPELLANT RESPONDENT I.T.A. NO. 1261/HYD/2010 A.Y. 2008-09 SHRI MOHD. SIRAJUDDIN NARSINGHI VILLAGE, RR DIST. PAN: BQKPS7860M VS. DY. CIT CENTRAL CIRCLE-6 HYDERABAD APPELLANT RESPONDENT I.T.A. NO. 1262/HYD/2010 A.Y. 2008-09 SHRI MOHD. AMEERUDDIN NARSINGHI VILLAGE, RR DIST. PAN: AKPPA4246D VS. DY. CIT CENTRAL CIRCLE-6 HYDERABAD APPELLANT RESPONDENT I.T.A. NO. 1263/HYD/2010 A.Y. 2008-09 SHRI MOHD. AIJAZUDDIN NARSINGHI VILLAGE, RR DIST. PAN: AKPPA4245A VS. DY. CIT CENTRAL CIRCLE-6 HYDERABAD APPELLANT RESPONDENT APPELLANT BY: SRI A.V. RAGHURAM RESPONDENT BY: SMT. AMISHA S. GUPT DATE OF HEARING: 26.07.2012 DATE OF PRONOUNCEMENT: 31.08.2012 O R D E R PER CHANDRA POOJARI, AM: THESE FOUR APPEALS BY DIFFERENT ASSESSEES ARE DIRE CTED AGAINST DIFFERENT ORDERS OF THE CIT(A) IN RESPECT O F THE ABOVE ASSESSEES FOR ASSESSMENT YEAR 2008-09. THE GROUND IN ALL THESE I.T.A. NO. 1260-1261/HYD/2010 SRI MOHD. IMAMUDDIN & ORS. ========================= 2 APPEALS IS COMMON IN NATURE AND AS SUCH THESE FOUR APPEALS ARE CLUBBED AND HEARD TOGETHER AND ARE BEING DISPOSED O F BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE GRIEVANCE OF THE ASSESSEES IN THESE APPEALS IS WITH REGARD TO NON-GRANTING OF DEDUCTION U/S. 54F OF THE INCOME-TAX ACT, 1961. BRIEF FACTS OF THE ISSUE ARE THAT THE A SSESSEES HEREIN CLAIMED DEDUCTION U/S. 54F OF THE ACT ON THE CAPITA L GAIN EARNED ON SALE OF LANDED PROPERTY TO THE DFL GROUP OF COMP ANIES WHICH WAS DENIED BY THE LOWER AUTHORITIES ON THE RE ASON THAT THE ASSESSEE HAS NOT FURNISHED DETAILS OF EXPENDITURE I NCURRED ON CONSTRUCTION OF BUILDING. THE ASSESSEES STATED BEF ORE THE LOWER AUTHORITIES THAT THEY HAVE NOT MAINTAINED DETAILS O F CONSTRUCTION EXPENDITURE AND THE EXPENDITURE IS REFLECTED BY THE WITHDRAWALS FROM BANK ACCOUNTS. IN THE ABSENCE OF ANY BILLS OR ANY CONTEMPORANEOUS EVIDENCE TOWARDS CONSTRUCTION OF TH E BUILDING, THE DEDUCTION CLAIMED BY THE ASSESSEES U/ S. 54F OF THE ACT WAS DENIED BY THE LOWER AUTHORITIES. 3. BEFORE US THE LEARNED AR SUBMITTED THAT THE MATERIA L AVAILABLE ON RECORD SUGGESTS THE UTILISATION OF CON SIDERATION RECEIVED ON SALE OF PROPERTY INVESTED IN CONSTRUCTI ON OF THE BUILDING AND REQUESTED TO GIVE DIRECTION TO THE ASS ESSING OFFICER TO EXAMINE THE ISSUE AFRESH. HE ALSO FILED A COPY OF BUILDING PLAN HAVING REF. NO. 129/09 IN RESPECT OF PROPERTY AT H. NO. 166 SITUATED NARSINGI VILLAGE AND GRAM PANCHAYAT, RAJEN DRANAGAR MANDAL, R.R. DISTRICT IN THE NAME OF MOHD. IMAMUDDI N AND IN THE NAME OF MR. MOHD. AIJAZUDDIN DATED 22.1.2009. 4. THE LEARNED DR RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. THE PROVISIONS OF SECTION 54F ARE THAT IF THE ASSESSEE I.T.A. NO. 1260-1261/HYD/2010 SRI MOHD. IMAMUDDIN & ORS. ========================= 3 BEING A INDIVIDUAL OR HUF, THE CAPITAL GAIN ARISES FROM TRANSFER OF ANY LONG TERM CAPITAL ASSET NOT BEING A RESIDENT IAL HOUSE AND THE ASSESSEE HAS, WITHIN A PERIOD OF ONE YEAR BEFOR E OR TWO YEARS AFTER THE DATE ON WHICH THE TRANSFER TAKES PLACE, P URCHASES OR, HAS WITHIN A PERIOD OF THREE YEARS AFTER THAT DATE CONSTRUCTED A RESIDENTIAL HOUSE, THE CAPITAL GAIN WILL NOT BE CHA RGED TO THE EXTENT OF COST OF NEW ASSET IF THE ENTIRE NET CONSI DERATION IS INVESTED OR PROPORTIONATE TO THE EXTENT OF NEW ASSE T BEARS TO THE NET CONSIDERATION IF THE CONDITIONS LAID DOWN U/S. 54F ARE FULFILLED THE ASSESSEE IS ENTITLED FOR DEDUCTION U/ S. 54F. ACCORDINGLY, THE ONUS IS ON THE ASSESSEES TO PROVE THAT THE CLAIM MADE BY THEM U/S. 54F IS IN ACCORDANCE WITH LAW. I N VIEW OF THIS, CONSIDERING THE ARGUMENTS OF THE ASSESSEES C OUNSEL, AS THERE IS LACK OF ENQUIRY FROM THE SIDE OF THE ASSES SING OFFICER IN THE INTEREST OF JUSTICE, WE REMIT BACK THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH EXAMINATION. HOWEVER, WE MAKE IT CLEAR THAT THE ASSESSEE SHALL CO-OPERATE WITH THE A SSESSING OFFICER BY PLACING NECESSARY EVIDENCE TO SUGGEST TH AT CONSTRUCTION HAS BEEN COMPLETED AS PRESCRIBED IN TH E PROVISIONS OF SECTION 54F OF THE ACT AND THE MERE WITHDRAWALS FROM BANK ACCOUNT BY THE ASSESSEE ITSELF CANNOT BE CONSIDERED AS IT IS USED FOR CONSTRUCTION. IT MAY BE USED FOR ANY PURPOSE A ND THE ASSESSEE IS DIRECTED TO PROVE THE ACTUAL TRANSACTIO N DURING THE AS PERIOD PRESCRIBED IN SECTION 54F OF THE IT ACT. IF THE PROVISIONS OF SECTION 54F ARE COMPLIED WITH BY THE ASSESSEE, T HE DEDUCTION U/S. 54F IS TO BE GRANTED IN ACCORDANCE WITH LAW. IT IS NEEDLESS TO SAY THAT THE ONUS IS ON THE ASSESSEES TO PROVE T HEIR CLAIMS. THE ASSESSING OFFICER SHALL AFFORD REASONABLE OPPOR TUNITY OF HEARING TO THE ASSESSEES. I.T.A. NO. 1260-1261/HYD/2010 SRI MOHD. IMAMUDDIN & ORS. ========================= 4 6. IN THE RESULT, ASSESSEES APPEALS ARE ALLOWED FOR S TATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST AUGUST, 2012. SD/- (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/- (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED 31 ST AUGUST, 2012 TPRAO COPY FORWARDED TO: 1. SRI MOHD. IMAMUDDIN, 1-65, NARSINGHI VILLAGE, RAJENDRANAGAR MANDAL, RANGA REDDY DIST. 2. SRI MOHD. SIRAJUDDIN, 1-65, NARSINGHI VILLAGE, RAJENDRANAGAR MANDAL, RANGA REDDY DIST. 3. SRI MOHD. AMEERUDDIN, 1-65, NARSINGHI VILLAGE, RAJENDRANAGAR MANDAL, RANGA REDDY DIST. 4. SRI MOHD. AIJAZUDDIN, 1-65, NARSINGHI VILLAGE, RAJENDRANAGAR MANDAL, RANGA REDDY DIST. 5. THE DCIT, CENTRAL CIRCLE-6, AAYAKAR BHAVAN, L.B. STADIUM ROAD, BASHEERBAGH, HYDERABAD 6. THE CIT(A)-I, HYDERABAD. 7. THE CIT (CENTRAL), HYDERABAD. 8. THE DR B BENCH, ITAT, HYDERABAD