Devang Navinchandra Nanavati, Surat V. The Dy.Commissioner of Income Tax, Circle-2(2), Surat

ITA 1355/AHD/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9752 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 01-12-2016
• Assessment Year: 2012-2013
• Appeal Filed On: 20-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Principle of natural justice; Additional evidence; Cost of acquisition
• Section: 54F; 131; 54

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD .., , BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ./ I.T.A. NO.1355/AHD/2016 ( / ASSESSMENT YEAR : 2012-13) DEVANG NAVINCHANDRA NANAVATI 8/1579, BHANSALI POLE, NR.HANUMAN CHART RASTA GOPIPURA, SURAT-395 001 / VS. THE DY.CIT CIRCLE-2(2) SURAT $ ./ ./ PAN/GIR NO. : AASPN 0098 B ( $' / APPELLANT ) .. ( ($' / RESPONDENT ) $') / APPELLANT BY : SHRI HIREN VEPARI, AR ($'*) / RESPONDENT BY : SHRI K. MADHUSUDAN, SR.DR +,*- / DATE OF HEARING 01/12/2016 ./0*- / DATE OF PRONOUNCEMENT 07/12/2016 / O R D E R PER PRADIP KUMAR KEDIA, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)- I, SURAT [CIT (A) IN SHORT] DATED 22/03/2016 PASSED FOR ASSESSMENT YEAR (AY) 2012-13. 2. THE ASSESSEE PLEADS FOLLOWING SUBSTANTIVE GROU NDS IN THE INSTANT APPEAL:- ITA NO.1355/AHD /2016 DEVANG NAVINCHANDRA NANAVATI VS. DCIT ASST.YEAR 2012-13 - 2 - (1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND AS P ER LAW, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING DENIAL OF RELIEF OF RS.74,57,884 U/S.54F OF THE ACT. (2) THE APPELLANT SUBMITS THAT THE LEARNED COMMISSIONER OF INCOME- TAX (APPEALS) ERRED IN CONSIDERING ACQUISITION RESI DENTIAL UNIT AS PURCHASE AND NOT AS CONSTRUCTION. (3) WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED COMMISS IONER OF INCOME-TAX (APPEALS) ERRED IN RELYING ON THE LETTER OF DCIT DT. 18-03-2016 WITHOUT GIVING COPY THEREOF TO THE APPEL LANT. 2.1. BRIEFLY STATED, THE ASSESSEE, AN INDIVIDUAL, HAS DERIVED INCOME FROM EMBROIDERY, SHARE TRADING, LONG TERM CAPITAL G AIN AND INCOME FROM OTHER SOURCES ETC. THE ASSESSEE FILED RETURN OF IN COME FOR AY 2012-13 DECLARING TOTAL INCOME OF RS.45,57,580/-. IN THE C OURSE OF SCRUTINY PROCEEDINGS UNDER SECTION 143(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') IT WAS OBSE RVED BY THE ASSESSING OFFICER (AO) THAT THE ASSESSEE HAS SOLD PLOT SITUAT ED AT DUMAS ON A SALE CONSIDERATION OF RS.1,32,00,000/- ON 28/03/2012 AN D DERIVED LONG TERM CAPITAL GAIN THEREON OF RS.1,19,36,343/- AFTER DED UCTION OF INDEX COST OF ACQUISITION AND OTHER INCIDENTAL EXPENSES. THE ASS ESSEE CLAIMED A DEDUCTION OF RS.74,57,884/- THEREON UNDER SECTION 54F OF THE ACT TOWARDS INVESTMENT OF CONSIDERATION IN RESIDENTIAL PROPERTY. THE AO DENIED THE AFORESAID CLAIM OF DEDUCTION UNDER SECTI ON 54F OF THE ACT FOR THE REASON THAT THE ASSESSEE HAS FAILED TO PROVE TH E UTILIZATION OF FUND WITHDRAWN FROM CAPITAL GAIN ACCOUNT FOR THE PURPOSE OF ACQUISITION OF THE NEW RESIDENTIAL HOUSE IN TERMS OF SECTION 54F OF TH E ACT. IT WAS ALLEGED ITA NO.1355/AHD /2016 DEVANG NAVINCHANDRA NANAVATI VS. DCIT ASST.YEAR 2012-13 - 3 - BY THE AO THAT THE AGREEMENT ENTERED INTO BY THE AS SESSEE FOR ACQUISITION OF RESIDENTIAL HOUSE IS IN THE NATURE OF PURCHASE OF FLAT FROM THE DEVELOPER AS AGAINST THE CLAIM OF THE ASSESSEE THAT THE AMOUNT HAS BEEN UTILIZED TOWARDS CONSTRUCTION OF THE RESIDENTIAL HOUSE AND THEREFORE EXTENDED DUE DATE AVAILABLE FOR CONSTRUCTION FRO M THE DATE OF TRANSFER IS NOT AVAILABLE TO ASSESSEE. IT WAS NOTED BY THE AO THAT THE CLAIM OF ASSESSEE THAT DUE DATE FOR CONSTRUCTION IS 27/03/2 015 IS NOT TENABLE. THE AO NOTED THAT SINCE THE RESIDENTIAL HOUSE HAS BEEN PURCHASED AND NOT CONSTRUCTED, THE COMPLETION OF PURCHASE OUGHT TO HAVE BEEN ON OR BEFORE 27/03/2014 I.E. 28/03/2012. THE AO ACCORDIN GLY HELD THAT THE ASSESSEE HAS FAILED TO PURCHASE THE HOUSE WITHIN A PERIOD OF 2 YEARS FROM THE DATE OF TRANSFER AND THEREFORE DEDUCTION UNDER SECTION 54F OF THE ACT CANNOT BE ALLOWED. HE ACCORDINGLY DENIED THE DEDUC TION UNDER SECTION 54F AND MADE AN ADDITION OF RS.74,57,884/- ON ACCOU NT OF LONG TERM CAPITAL GAINS TO THE TOTAL INCOME OF THE ASSESSEE. 2.2. IN FIRST APPEAL, THE CIT(A) REFUSED TO INTERFE RE WITH THE ORDER OF THE AO. THE FINDINGS OF THE CIT(A) ARE IN THE FOLLOWIN G TERMS:- DISCUSSION AND APPELLATE DECISION : 8. SUBMISSION MADE BY THE APPELLANT INTER ALIA THE FACTS MENTION IN THE ASSESSMENT ORDER HAVE BEEN DULY CONSIDERED. THE EVI DENCES TILED DURING APPELLATE PROCEEDINGS, REMAND REPORT & COUNTER REPLY FILED BY THE APPELLANT HAVE ALSO BEEN TAKEN INTO CONSIDERATION. CASE LAWS RELIED UPON HAVE BEEN PERUSED AND CONSIDERED WHILE ARRIVING AT APPELLATE DECISION. DURING THE YEAR UNDER CONSIDERATION, THE APPELLANT HAD SOLD A PLOT OF LAND AT ITA NO.1355/AHD /2016 DEVANG NAVINCHANDRA NANAVATI VS. DCIT ASST.YEAR 2012-13 - 4 - DUMAS (SURAT) FOR SALE CONSIDERATION OF RS. 1,32,00,000/- AS PER SALE DEED EXECUTED ON 28.03.2012 (ANNX 'A' OF U/S DT 13.07.2015) AND EARNED A LTCG O F RS. 1,19,36,343/-. ON THESE FACTS, THERE IS NO DISPUTE BETWEEN ASSESSE E AND DEPARTMENT. IN ORDER TO CLAIM DEDUCTION U/S 54F THE ASSESSEE HAS CLAIMED THAT HE HAD BOOKED A FLAT (C WING, FLAT NO 702) IN 'ACQU ATICA APARTMENT' A SCHEME DEVELOPED BY M/S MILESTONE DEVELOPERS. TH E ASSESSEE HAD CLAIMED THAT ACCORDINGLY, HE ENTERED INTO AN AGREEMENT WITH M/S MILESTONE DEVELOPERS ON 31.12.2012 (ANNX B OF W/S DT 13. 07.2015) FOR CONSTRUCTION OF FLAT FOR A CONSIDERATION OF RS.85,30,000/- AND POSSESSION WAS TO BE GIVEN TO THE APPELLANT ON COMPLETION OF CONSTRUCTION. THE AP PELLANT HAS CLAIMED DEDUCTION U/S 54F OF THE ACT IN RESPECT OF THIS NEW RESIDENTIAL PROPERTY GOT CONSTRUCTED FOR RS. 85,30,000/- AND CLAIMING THAT H E WOULD BE ENTITLED TO SUCH RELIEF IF CONSTRUCTION IS COMPLETED BY 27.03.2015 I.E. WITHIN 3 YRS OF DATE OF TRANSFER OF CAPITAL ASSET GIVING RISE TO CA PITAL GAIN. ON THE OTHER HAND, THE AO HAS HELD THAT ASSESSEE HAD ACTUALLY 'P URCHASED' THE FLAT AND 'NOT GOT CONSTRUCTED' (AS CLAIMED BY THE ASSESSEE ), THEREFORE, THE ASSESSEE FAILED TO PURCHASE THE NEW RESID ENTIAL PROPERTY WITHIN 2 YEARS OF DATE OF TRANSFER I.E. BEFORE 27.03.2014, THE ASSESSEE WAS NOT ELIGIBLE FOR DEDUCTION U/S 54F OF THE ACT AND DISALLOWED THE CLAIM OF DEDUCTION OF RS. 74,57,884/- MADE BY THE ASSESSEE. THIS IS THE PRECISE ISSUE OF DISPUTE BETWEEN THE APPELLANT AND THE DEPARTMENT. 8.1. AS DISCUSSED EARLIER, THE PRESENT AO WAS ISSU ED DIRECTION TO CARRY OUT CERTAIN ENQUIRIES VIDE MY LETTER DT 14.07.2015 FROM BUILDER/DEVELOPER TO ENSURE WHETHER ASSESSEE HAD ACTUALLY PURCHAS ED THE FLAT OR GOT IT CONSTRUCTED AS CLAIMED ON THE BASIS OF AGREEMENT DT 31.12.2012 ENTERED WITH BUILDER. THE PRESENT AO REPORTED VIDE LETTER DT 02.11.2015 THAT SUMMONS ISSUED TO DEVELOPER REMAINED TO BE COMPLIED WITH. HE AGAIN REPORTED VIDE LETTER DT 18.11.2015 THAT SUMMONS ISS UED & SERVED UPON ONE OF THE PARTNERS OF M/S MILESTONE DEVELOPERS NAMELY SHRI SUNISH SATISHCHANDRA SHAH REMAINED UNCOMPLIED WITH. IN THIS LETTER HE ALSO MENTIONED THAT CERTAIN DETAILS WERE CALLED FOR FROM THE ASSESSEE WHO NEITHER ATTENDED THE OFFICE NOR FURNISHED THE DETAILS. AO H AS EMPHATICALLY REITERATED THE VIEW POINT OF ERSTWHILE AO THAT PURCHASED SHOUL D BE TREATED OUT AND OUT PURCHASE AND DEDUCTION OF RS, 74,57,884/- CLAIMED B Y THE ASSESSEE SHOULD BE DISALLOWED. ON THE OTHER HAND, ID. AR OF THE ASSESS EE VIDE LETTER DT 01.12.2015 REPLIED TO THE REMAND REPORT SAY ING THAT AGREEMENT WITH BUILDER CLEARLY SAYS THAT THE DEVELOPER WAS CONSTRU CTING A RESIDENTIAL COMPLEX IN WHICH ASSESSEE BOOKED A FLAT WHICH SHOULD BE TRE ATED AS CONSTRUCTION NOT PURCHASE OF FLAT. AS PER THE DOCUMENTS FILED BY THE ASSESSEE, THE FINAL SALE ITA NO.1355/AHD /2016 DEVANG NAVINCHANDRA NANAVATI VS. DCIT ASST.YEAR 2012-13 - 5 - DEED WAS EXECUTED ON 26.03.2015. FOR NON-COMPLIANCE, THE AR OF THE APPELLANT HAS STATED THAT DELAY IN SUBMISSION OCCUR RED BECAUSE HE HAD TO OBTAIN COPY OF SALE DEED FROM BROKER WHICH CAUSED T HE DELAY. 8.2. AS REFERRED IN PARA 7.1 OF THIS ORDER, CERTAIN DETAILS WERE ALSO CALLED FOR FROM THE ASSESSEE VIDE LETTER DT 09.03.2016 INC LUDING PRODUCTION OF THE PARTNERS OF M/S MILESTONE DEVELOPERS WHO WERE CONTI NUOUSLY AVOIDING THE COMPLIANCE & DETAILS OF ALTERATION/ADDITION DONE IN THE SAID FLAT IN ACQUATICA APARTMENT WITH ITS SOURCE & BANK STATE MENT COPY ETC. IN RESPONSE, THE AR OF THE ASSESSEE FILED COPY OF BANK STATEMENT AND ORIGINAL COPY OF AGREEMENT VIDE LETTER DT 18.03.2016 AND ALS O FILED A MEDICAL CERTIFICATE TO JUSTIFY THE NON-ATTENDENCE OF SHRI D EVANG NAVINCHANDRA NANAVATI. IN BETWEEN, THE PRESENT AO AGAIN ISSUED S UMMONS U/S 131 OF THE ACT TO PARTNERS OF MILESTONE DEVELOPERS WHO REPLIED VIDE LETTER DT 17.03.2016. IN HIS REPLY, ONE OF THE PARTNERS HAS CATEGORICALLY ADMITTED THAT FLAT NO 702 (A 1-702) WAS SOLD TO SHRI DEVANG N NANAVATI ON ' AS IS WHERE IS BASIS' AND NO SPECIFIC WORK WAS CARRIED OUT IN RESPECT OF FLAT SOLD TO SHRI DEVANG NANAVATI. THE FURTHER CLARIFIED THAT FLAT WAS NOT CONSTRUCTED AS PER ANY SPECIFIC DIRECTION OF THE BUYER AND BUILDER RECEIVE D IDENTICAL PAYMENT FROM ALL OTHER BUYERS OF SAME FLOOR OF 'C' TOWER HAVING IDENTICAL SUPER BUILT UP AREA. 8.3. I HAVE GIVEN MY THOROUGH CONSIDERATION TO ALL THE FACTS & EVIDENCES AS DISCUSSED ABOVE. I AM CONSIDERED VIEW THAT ASSESSEE IS PATENTLY WRONG IN CLAIMING THE PURCHASE OF FLAT AS CONSTRUCTION OF FL AT. IT IS A MATTER OF COMMON KNOWLEDGE THAT BUILDER IS NOT DEVELOPING ANY SCHEME KEEPING IN VIEW OF SPECIFIC NEED/REQUIREMENT OF ANY SPECIFIC BUYER. BU T A COMMON PLAN IS DESIGNED & EXECUTED AND WHOSOEVER IS INTERESTED IN BUYING THE FLAT CAN DO SO ON 'AS IS WHERE IS BASIS'. BY NO STRETCH OF IMAGIN ATION IT CAN BE SAID THAT ANY PARTICULAR FLAT IS CONSTRUCTED FOR ANY SPECIFIC BUY ER OF THE FLAT. BUILDER LAUNCHES ANY PARTICULAR SCHEME WHICH IS OPEN FOR PU BLIC TO MAKE PAYMENT OF FULL CONSIDERATION AND BUY A FLAT IN THE SAID SCHEM E ON 'AS IS WHERE IS BASIS. THE SAME HAS HAPPENED IN THIS PARTICULAR CASE WHICH HAS BEEN CLARIFIED BY THE BUILDER AS WELL. IN THE RECITALS OF' THE SAID AGREE MENT ALSO THE BUILDER HAS AGREED TO SELL THE SAID FLAT TO ASSESSEE FOR A SALE PRICE FIXED AT RS. 85,30,000/-. HENCE, THERE REMAINS NO DOUBT THAT AGREEMENT DT 31. 12.12 BETWEEN BUILDER AND THE ASSESSEE WAS FOR 'PURCHASE OF FLAT' NOT FOR 'CONSTRUCTION OF FLAT'. 8.4 IN THIS FACTUAL BACKGROUND, THE QUESTION A RISES AS TO WHEN IT COULD BE CONSIDERED THAT FLAT HAS BEEN PURCHASED BY TH E ASSESSEE. I AM OF THE ITA NO.1355/AHD /2016 DEVANG NAVINCHANDRA NANAVATI VS. DCIT ASST.YEAR 2012-13 - 6 - CONSIDERED VIEW THAT MERELY ENTERING INTO AN AGREEM ENT FOR PURCHASE WITH BUILDER AND MAKING PAYMENTS TOWARDS BOOKI NG OF FLAT CANNOT BE CONSIDERED AS PURCHASE OF FLAT. UNTILL & UNLESS, TH E FINAL CONVEYANCE DEED IS EXECUTED, RIGHTS & TITLE OF IMMOVABLE ASSETS ARE NOT TRANSFERRED. IT IS SO BECAUSE TILL THAT TIME BOTH OR EITHER PARTY CAN ANNUL/CANCEL THE AGREEMENT TO PURCHASE AND ASK FOR RETURN OF BOOKING AMOUNT. HON'BLE SUPREME COURT IN THE CASE OF ALAPTI VENTEATARAMIAH V/S CIT (1965) 57 ITR 185 (SC) HAS HELD THAT IT IS TRUE THAT THE WORD 'TR ANSFER' IS USED IN ADDITION TO THE WORK 'SALE' BUT EVEN SO, IN THE CONTEXT 'TRANSF ER' MUST MEAN EFFECTIVE CONVEYANCE OF CAPITAL ASSET TO THE TRANSFEREE. DELI VERY OF POSSESSION OF IMMOVABLE PROPERTY CANNOT BY ITSELF BE TREATED AS E QUIVALENT TO CONVEYANCE OF IMMOVABLE PROPERTY. 8.5 FURTHER, IN THE CASE OF SALE OF IMMOVABLE P ROPERTIES, THE SALE CAN BE SAID TO HAVE TAKEN PLACE ON THE DATE OF EXECUTION O F THE SALE DEED AND NOT ON THE DATE OF THE AGREEMENT TO SELL- HALL & ANDERSON (P) LTD. V/S CIT [1963] 47 ITR 790(CAL)/CIT V/S F.X.PERIERA & SONS(TRAVANCORE) (P) LTD. [1980] 184 ITR 461 (KER.)/CIT V/S GHAZIABAD ENGG CO. LTD [2001 ] 116 TAXMAN 268(DELHI). 8.6 IT HAS BEEN HELD IN SURAJ LAMP & INDUSTRIE S (P.) LTD. V. STATE OF HARYANA [2011] 202 TAXMAN 607/14 TAXMANN.COM 103 (S C) THAT IMMOVABLE PROPERTY CAN BE LEGALLY AND LAWFULLY TRANSFERRED/CO NVEYED ONLY BY A REGISTERED DEED OF CONVEYANCE - SECTION 54 OF THE T RANSFER OF PROPERTY ACT MAKES IT CLEAR THAT A CONTRACT OF SALE, THAT IS, AN AGREEMENT OF SALE DOES NOT, BY ITSELF, CREATE ANY INTEREST IN OR CHARGE ON SUCH PROPERTY. IT IS, THUS, CLEAR THAT A TRANSFER OF IMMOVABLE PROPERTY BY WAY OF SAL E CAN ONLY BE BY A DEED OF CONVEYANCE (SALE DEED). IN THE ABSENCE OF A DEED OF CONVEYANCE (DULY STAMPED AND REGISTERED AS REQUIRED BY LAW), NO RIGH T, TITLE OR INTEREST IN AN IMMOVABLE PROPERTY CAN BE TRANSFERRED. ANY CONTRACT OF SALE (AGREEMENT TO SELL) WHICH IS NOT A REGISTERED DEED OF CONVEYANCE (DEED OF SALE) WOULD FALL SHORT OF THE REQUIREMENTS OF SECTIONS 54 AND 55 AND WILL NOT CONFER ANY TITLE NOR TRANSFER ANY INTEREST IN AN IMMOVABLE PROPERTY (EXCEPT TO THE LIMITED RIGHT GRANTED UNDER SECTION 53A). ACCORDING TO THE ACT, AN AGREEMENT OF SALE, WHETHER WITH POSSESSION OR WITHOUT POSSESSION , IS NOT A CONVEYANCE. SECTION 54 ENACTS THAT SALE OF IMMOVABLE PROPERTY C AN BE MADE ONLY BY A REGISTERED INSTRUMENT AND AN AGREEMENT OF SALE DOES NOT CREATE ANY INTEREST OR CHARGE ON ITS SUBJECT-MATTER. 8.7 IN VIEW OF THE ABOVE, I AM OF CONSIDERED V IEW THAT FIRSTLY THE ASSESSEE NEVER GOT THE RESIDENTIAL FLAT CONSTRUCTED BUT MADE AN OUT AND OUT PURCHASE ITA NO.1355/AHD /2016 DEVANG NAVINCHANDRA NANAVATI VS. DCIT ASST.YEAR 2012-13 - 7 - FROM BUILDER, M/S. MILESTONE DEVELOPERS ON 'AS IS W HERE IS BASIS'. SECONDLY, DATE THE PURCHASE OT TLAT HAS TO BE TAKEN THE DATE ON WHICH CONVEYANCE DEED WAS REGISTERED I.E. 26.03.2015 WHICH FALLS BEYOND THE MANDATORY PERIOD OF 2 YEARS FROM THE DATE OF TRANSFER OF CAPITAL ASSETS GIVING RISE TO CAPITAL GAIN I.E. 28.03.2012. IN VIEW OF THIS CLAIM FOR DEDUCTION U/S.54 OF RS.74,57,884/- IS FOUND NOT ELIGIBLE BECAUSE THE APPELLANT HAS VIO LATED THE MANDATORY CONDITION OF 2 YEARS PRESCRIBED IN THAT SECTION. TH EREFORE, I DO NOT FIND ANYTHING WRONG OR ILLEGAL ABOUT THE ACTION OF AO IN MAKING DISALLOWANCE OF DEDUCTION U/S 54F OF THE ACT. IN VIEW OF ABOVE DISC USSION, THE GROUND OF APPEAL IS DISMISSED. 3. AGGRIEVED BY THE ORDER OF CIT(A), ASSESSEE IS NO W IN APPEAL BEFORE TRIBUNAL. 4. IN THE COURSE OF HEARING, THE LD.AR FOR THE ASSE SSEE MR.HIREN VEPARI AT THE OUTSET SUBMITTED THAT THE REAL CONTRO VERSY IS WHETHER THE AGREEMENT FOR ACQUISITION OF RESIDENTIAL HOUSE IS I N THE NATURE OF PURCHASE OR A CONSTRUCTION ACTIVITY. IT WAS SU BMITTED THAT IF IT IS HELD THAT THE AGREEMENT FOR ACQUISITION OF NON-RESIDENTI AL HOUSE IS IN THE NATURE OF CONSTRUCTION, TIME LIMIT WOULD BE TWO YEARS FROM THE DATE OF THE TRANSFER OF ORIGINAL ASSET, WHEREAS IN RESPECT OF C ONSTRUCTION ACTIVITY, THE TIME LIMIT IS EXTENDED UPTO THREE YEARS FOR THE PUR POSES OF SECTION 54F OF THE ACT. THE LD.AR THEREAFTER ADVERTED OUR ATTEN TION TO A PETITION MOVED FOR ADMISSION OF THE ADDITIONAL EVIDENCE DATE D 19/09/2016 IN TERMS OF RULE 29 OF INCOME TAX APPELLATE RULES, 196 3. IN ELABORATION, THE LD.AR SUBMITTED THAT THE CIT(A) HAS RELIED OF A LETTER DATED 17/03/2006 OBTAINED FROM THE DEVELOPER WHICH WAS N OT MADE AVAILABLE ITA NO.1355/AHD /2016 DEVANG NAVINCHANDRA NANAVATI VS. DCIT ASST.YEAR 2012-13 - 8 - WITH THE ASSESSEE IN THE FIRST APPELLATE PROCEEDING S. IT WAS SUBMITTED THAT THE AFORESAID ADDITIONAL EVIDENCE HAS BEEN TAKEN CO GNIZANCE OF BY THE WHILE DECIDING THE ISSUE AGAINST THE ASSESSEE IN VI OLATION OF NATURAL JUSTICE. THE LD.AR SUBMITTED THAT THE ADDITIONAL E VIDENCE RELIED UPON BY THE CIT(A) OUGHT TO HAVE BEEN CONFRONTED TO THE ASS ESSEE. HE ACCORDINGLY PLEADED FOR SUITABLE RELIEF. 5. THE LD.DR FOR THE REVENUE ON THE OTHER HAND SUBM ITTED THAT REVENUE HAS NO OBJECTION IF THE MATTER IS REMITTED BACK TO THE FILE OF THE CIT(A) TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WIT H LAW AFTER OBSERVING THE PRINCIPLES OF NATURAL JUSTICE. 6. WE HAVE CAREFULLY CONSIDERED RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE O RDERS OF THE AUTHORITIES BELOW. THE PRIMARY QUESTION THAT ARIS ES FOR OUR CONSIDERATION IS WHETHER THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U NDER SECTION 54F OF THE ACT AS CLAIMED IN THE FACTS OF THE CASE. AT THE TH RESHOLD, WE TAKE NOTE OF THE PETITION MOVED ON BEHALF OF THE ASSESSEE FOR AD MISSION OF THE ADDITIONAL EVIDENCE AND ALLEGATION ON BEHALF OF THE ASSESSEE THAT THE PRINCIPLES OF NATURAL JUSTICE HAS BEEN VIOLATED BY THE CIT(A) WHILE ADJUDICATING THE ISSUE. IN THESE CIRCUMSTANCES, WE ARE NOT INCLINED TO LOOK INTO THE OTHER FACETS OF THE RIVAL ARGUMENTS. THE INFRINGEMENT OF PRINCIPLES OF NATURAL JUSTICE HAS VITIATED THE ORDE R OF THE CIT(A). THE ITA NO.1355/AHD /2016 DEVANG NAVINCHANDRA NANAVATI VS. DCIT ASST.YEAR 2012-13 - 9 - LEGITIMATE EXPECTATION OF THE ASSESSEE TO PROVIDE L EVEL PLAYING FIELD CANNOT BE SHUNNED IN SUBVERSION OF JUDICIAL PROPRIE TY WHILE WEIGHING AN ISSUE. THEREFORE, WE CONSIDER IT EXPEDIENT TO REMA ND THE MATTER TO THE FILE OF THE CIT(A) FOR ADJUDICATING THE ISSUE AFRES H IN ACCORDANCE WITH LAW AFTER OBSERVING THE PRINCIPLES OF NATURAL JUSTI CE. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 07 /12/2016 SD/- SD/- (..) ( ) ( S.S. GODARA ) ( PRADIP KUMAR KEDIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 07/ 12 /2016 4..+,.+../ T.C. NAIR, SR. PS !'#$%$' / COPY OF THE ORDER FORWARDED TO : 1. $' / THE APPELLANT 2. ($' / THE RESPONDENT. 3. 567- 8- / CONCERNED CIT 4. 8- ( ) / THE CIT(A)-I, SURAT 5. 9:-+67 , 670 , 5 / DR, ITAT, AHMEDABAD 6. <, / GUARD FILE. / BY ORDER, (9-- //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD