Surinder Pratap Singh, New Delhi V. ITO, New Delhi

ITA 1359/DEL/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5848 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2011-2012
• Appeal Filed On: 11-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Section: 201; 54; 144

Judgement Text

IN TH E INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : A : NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO. 1359 /DEL/201 6 ASSESSMENT YEAR : 20 1 1 - 12 SURINDER PRATAP SINGH, CHAMBER NO.472, WESTERN WING, TIS HA ZARI COURT, NEW DELHI. PAN: A OBPS1927F VS ITO, WARD - 61(3), NEW DELHI. (APP ELL A NT ) (RESPONDENT) A SSESSEE BY : SHRI K. SAMPATH, ADVOCATE & SHRI V. RAJA KUMAR, ADVOCATE RE VENUE BY : SHRI S.L. ANURAGI, SR. DR DATE OF HE ARING : 0 4 . 0 2 . 20 20 DATE OF PRONOUNCEMENT : 14 . 02 . 20 20 ORDER PER R. K. PANDA, AM : TH IS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 2 1 ST JANUARY, 2 01 6 OF THE CIT(A) - 20 NEW DELHI , RELATING TO ASSESSMENT YEAR 20 1 1 - 12 . 2. THIS APPEAL WAS EARLIER DISMISSED BY THE TRIBUNAL FOR NON - PROSECUTION. SUBSEQUENTLY, THE TRIBUNAL, VIDE MA NO.185/DEL/2018, ORDER DATED 26 TH APRIL, 2019, RECALLED ITS EARLIER ORDER, HENCE, THIS IS A RECALLED MATTER. ITA NO. 1359 /DEL/201 6 2 3 . FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A N INDIVIDUAL AND FILED H IS RETURN OF INCOME ON 20 TH JULY, 201 1 DECLARING THE TOTAL INCOME AT RS. 2,32,550/ - . THE AO COMPLETED THE ASSESSMENT U/S 144 OF THE IT ACT WHEREIN HE MADE AN ADDITION OF RS.50,35,803/ - ON ACCOUNT OF LONG - T ERM CAPITAL GAIN ON SALE OF HIS RESIDENTIAL HOUSE WHICH WAS SOLD FOR AN AMOUNT OF RS.60 LAKHS. IN APPEAL, THE LD.CIT(A) ALLOWED AN AMOUNT OF RS.25,65,000/ - BEING INVESTED BY THE ASSESSEE TILL THE DATE OF FILING OF THE RETURN TOWARDS PURCHASE OF A RESIDENT IAL PLOT FROM SUPERTECH LTD. H E, HOWEVER, DID NOT ALLOW ANY EXPENDITURE MADE TOWARDS CONSTRUCTION ON THE SAID PLOT UTILIZED BY THE ASSESSEE FOR RESIDENTIAL PURPOSES. 4 . AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUN AL BY RAISING THE FOLLOWING GROUNDS: - ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) ERRED IN CONFIRMING THE FOLLOWING ACTIONS OF THE ASSESSING OFFICER: 1. DENYING BENEFIT OF INDEXED IMPROVEMENT COST OF THE PROPERTY SOLD TO THE EXTENT OF RS.1,02,746/ - WHILE COMPUTING LONG TERM CAPITAL GAIN; 2. IN MAKING ADDITION TO THE EXTENT OF RS.25,65,000/ - BY DENYING EXEMPTION CLAIMED U/S 54 OF THE ACT ON INVESTMENT MADE IN CONSTRUCTION OF PROPERTY. BOTH THE ABOVE ACTIONS BEING ARBITRARY, ERR ONEOUS, UNWARRANTED AND UNJUST MUST BE QUASHED WITH DIRECTIONS FOR RELIEF. . 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD.CIT(A) HAS NOT PROPERLY ADJUDICATED THE ISSUE OF DENYING THE BENEFIT OF INDEXED COST OF IMPROVEMENT TO THE EXTENT OF RS.1 ,02,746/ - WHILE COMPUTING THE LONG - TERM CAPITAL GAIN AND DENYING THE CLAIM OF EXEMPTION U/S 54 OF THE ACT ON INVESTMENT MADE IN ITA NO. 1359 /DEL/201 6 3 CONSTRUCTION OF PROPERTY. HE SUBMITTED THAT WITHOUT CONSTRUCTING THE BASIC AMENITIES SUCH AS KITCHEN, ETC., THE ASSESSEE CANNOT LIVE IN A HOUSE. HE SUBMITTED THAT GIVEN AN OPPORTUNITY, THE ASSESSEE IS IN A POSITION TO SUBSTANTIATE ITS CASE AND, THEREFORE, HE HAS NO OBJECTION IF THE MATTER IS RESTORED TO THE FILE OF THE CIT(A). 6 . THE LD. DR, ON THE OTHER HAND, HEAVILY RELIED ON THE ORDER OF THE CIT(A). 7 . AFTER HEARING BOTH THE SIDES, WE FIND THE AO, IN THE ORDER PASSED U/S 144 OF THE ACT, DETERMINED THE TOTAL LONG - TERM CAPITAL GAIN AT RS.50,35,803/ - . WE FIND, THE LD.CIT(A) GAVE PART RELIEF TO THE ASSESSEE BY SUSTAINING AN ADD ITION OF RS.25,65,000/ - ON ACCOUNT OF LONG - TERM CAPITAL GAIN. IT IS THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT GIVEN AN OPPORTUNITY, THE ASSESSEE IS IN A POSITION TO SUBSTANTIATE FURTHER CONSTRUCTION O N THE PLOT PURCHASED BY HIM FOR THE PURPO SE OF RESIDENCE SO AS TO GET HIGHER DEDUCTION U/S 54 OF THE ACT. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE WE DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE CIT(A) WITH A DIRECTION TO GRANT ONE MORE OPPORTUNI TY TO THE ASSESSEE TO SUBSTANTIATE HI S CASE AND DECIDE THE ISSUE AS PER FACT AND LAW. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 1359 /DEL/201 6 4 8 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEES IS ALLOWED FOR STATISTICAL PURPOSES . THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 14 .0 2.2020 . SD/ - SD/ - ( BHAVNESH SAINI ) ( R. K. PANDA ) JUDICIAL MEMBER ACCOU NTANT MEMBER DATED: 14 TH FEBRUARY, 2020. DK COPY FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI