ITO, CHENNAI V. Maheshwari Yuvaraj, CHENNAI

ITA 1362/CHNY/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8674 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 13-07-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 03-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G BA
• Section: 54F; 27

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI , . ! , '!# BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A. NO.19/MDS/2015 ' $ %$ / ASSESSMENT YEARS : 2011-2012 SHRI. GOVINDA PILLAI YUVARAJ, 2B KINGS MEAD, 14/3, SOUTH MADA STREET, SAIDAPET, CHENNAI 600 015. VS. THE INCOME TAX OFFICER, SALARY WARD VI(3) CHENNAI 600 034. [PAN AAPPY2755F ] ./ I.T.A. NO.1362/MDS/2015 ' $ %$ /ASSESSMENT YEARS : 2011-2012 THE INCOME TAX OFFICER, COMPANY WARD III(1) CHENNAI 600 034 ( / APPELLANT) VS. SMT. MAHESHWARI YUVARAJ, 2B KINGS MEAD, 14/3, SOUTH MADA STREET, SAIDAPET, CHENNAI 600 015. [PAN AGOPM2127N] ( /RESPONDENT) DEPARTMENT BY ASSESSEE BY : : SHRI. A.V. SREEKANTH, JCIT. SHRI. A. SATYASEELAN & G. BASKAR, ADVOCATES. & ' / DATE OF HEARING : 13-07-2016 ()% & ' / DATE OF PRONOUNCEMENT : 29-07-2016 ITA NO. 19 & 1362/MDS/2015 :- 2 -: / O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER : THE APPEAL IN ITA NO.19/MDS/2015 FILED BY THE ASSE SSEE SHRI. GOVIND PILLAI YURARAJ AND ANOTHER APPEAL IN ITA NO. 1362/MDS/2015 FILED BY THE REVENUE OF SMT. MAHESHWARI YUVARAJ FOR ASSESSMENT YEAR 2011-12 ARE DIRECTED AGAINST DIFFERENT ORDERS OF C OMMISSIONER OF INCOME TAX (APPEALS), CHENNAI, DATED 28.11.2014 AND 26.02.2015 RESPECTIVELY. SINCE THE ISSUES IN THE APPEALS MEN TIONED HEREINABVOE ARE COMMON IN NATURE, THESE APPEALS ARE CLUBBED, H EARD TOGETHER, AND DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE O F CONVENIENCE. FIRST, WE TAKE UP DEPARTMENTAL APPEAL IN ITA NO.13 62/MDS/2015 OF ASSESSMENT YEAR 2011-2012 FOR ADJUDICATION. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APP EAL:- 2.1 THE CIT(A) ERRED IN DELETING THE ADDITION ON LONG-TERM CAPITAL OF RS. 72, 17,443/- ARISING OUT O F THE SALE OF IMMOVABLE PROPERTY HELD IN THE JOINT NAME OF THE ASSESSEE AND HER HUSBAND. 2.2 THE CIT(A) ERRED IN ACCEPTING THE ARGUMENT OF AR OF THE ASSESSEE THAT THE PROPERTY IN QUESTION WAS PURCHASED BY THE ASSESSEE'S HUSBAND WHEREAS THE PROPERTY IN QUESTION WAS PURCHASED OUT OF FUND FROM THE BANK ACCOUNT HELD IN THE JOINT NAME OF TILE ASSESSEE AND HER HUSBAND. 2.3 THE ID. CIT(A) ERRED IN ACCEPTING THE CONTENTIO N OF THE AR VIDE SI. 7.1 OF THE IMPUGNED ORDER THAT ITA NO. 19 & 1362/MDS/2015 :- 3 -: THE ENTIRE SALE PROCEEDINGS OUT OF SALE OF PROPERTY IN QUESTION WAS RECEIVED BY THE ASSESSEE'S HUSBAND ALONE WITHOUT NOTICING THE FACTS AS PER THE SALE DEED NO.1212/2011 REGISTERED WITH SRO, NEELANKARAI THAT 50% OF THE SALE CONSIDERATION OF RS.75,00,000/- RECEIVED BY THE ASSESSEE VIDE CHEQUE NOS.452090 AND 452091 DRAWN ON INDIAN OVERSEAS BANK, NOLAMBUR BRANCH. 2.4 IT IS SUBMITTED THAT THE ASSESSEE IS ONE OF THE DIRECTOR OF M/S. THRIRUVONAM IMPEX PRIVATE LIMITED AND THEREFORE, THE AR'S ARGUMENT OF ASSESSEE HAS NO MEANS TO PURCHASE THE SOLD PROPERTY IS NOT IN ORDER. 2.5 THE ID. CIT(A) FAILED TO APPRECIATE THE FINDING S OF ASSESSING OFFICER IN THE ASSESSMENT ORDER THAT THE ASSESSEE IS ALSO HOLDING 50% OF THE OWNERSHIP IN THE SOLD PROPERTY AND ASSESSEE'S HUSBAND HAS INTENTIONALLY OFFERED THE ENTIRE INCOME OUT OF SALE OF PROPERTY IN HIS RETURN OF INCOME KNOWING THE FACTS THE ASSESSEE IS NOT ELIGIBLE FOR CLAIM OF EXEMPTION U/S 54F AS SHE IS ALREADY HAVING TWO RESIDENTIAL HOUSE ON THE DATE OF SALE OF ASSET. 2.6 THE ID. CIT(A) OUGHT TO HAVE CONSIDERED THE FINDINGS OF THE ASSESSING OFFICER THAT THE ASSESSEE HOLDS EQUAL RIGHTS IN THE SOLD PROPERTY AND THE INCOME ARISING OUT OF SALE OF THE PROPERTY SHOULD BE ASSESSED IN THE HANDS OF THE ASSESSEE AS THERE IS NO TRANSFER FOR INADEQUATE CONSIDERATION AS CLAIMED BY THE AR. THE ABOVE VIEW IS FORTIFIED BY THE RATIO HELD IN THE CASE OF PATEL CHEMICAL WORKS VS. CIT REPORT IN 265 ITR 273(GUJARAT). 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS IN INDIVIDUAL AND SHE IS A DIRECTOR OF M/S. THIRUVONAM IMPEX PVT. LTD AND FILED RETURN OF INCOME ELECTRONICALLY ON 02.03.2012 WITH TOTAL INCOME OF A13,11,890/- AND THE RETURN OF INCOME WAS PROCES SED U/S.143(1) OF ITA NO. 19 & 1362/MDS/2015 :- 4 -: THE ACT ON 29.05.2012. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS AND NOTICE U/S.143(2) OF THE A CT WAS ISSUED. IN COMPLIANCE TO NOTICE, THE LD. AUTHORISED REPRESENTA TIVE OF ASSESSEE APPEARED FROM TIME TO TIME AND FILED DETAILS OF SA LE OF PROPERTY AND PURCHASE DURING THE YEAR, WEALTH TAX RETURN AND BAN K STATEMENTS. THE LD. ASSESSING OFFICER ON THE BASIS OF AIR INFOR MATION, FOUND THAT THE ASSESSEE HAS SOLD RESIDENTIAL PROPERTY AS CO-O WNER ALONGWITH HER HUSBAND SHRI. GOVIND PILLAI YUVARAJ IN THE FINANCIA L YEAR 2010-2011 FOR A1,50,00,000/- AND THE ASSESSEE HAS NOT DISCLOSED I N THE RETURN OF INCOME ABOUT SALE TRANSACTION. THE LD. AUTHORISED REPRESENTATIVE EXPLAINED THAT THE SALE CONSIDERATION IS REFLECTED IN INCOME TAX RETURN OF HER HUSBAND SHRI. GOVIND PILLAI YUVARAJ IN THE S AME ASSESSMENT YEAR. FURTHER, THE LD. ASSESSING OFFICER ISSUED LET TER DATED 28.11.2013 MENTIONING THAT THE ASSESSEES SHARE IN PROPERTY B EING 50% WORKED OUT A72,17,443/- WAS NOT DISCLOSED AND IS LIABLE TO BE TAXED AS CO- OWNER. IN REPLY, THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THE EXPLANATIONS SUPPORTING THE VIEW OF NOT DISCLOSING THE INFORMATION IN THE ASSESSEES HAND AND RELIED ON THE PROVISIONS OF SEC. 27 OF THE ACT DEALT ON THE OWNER AND CLUBBING PROVISIONS U/S .64 OF THE ACT. FURTHER BY LETTER DATED 20.12.2013 IT WAS EXPLAINE D THAT THE ASSESSEE HAS NOT INVESTED IN PURCHASE OF SAID LAND, WHICH WA S SOLD AND SUBMITTED BANK ACCOUNTS DETAILS WERE NO SOURCE O F ASSESSEE INCOME ITA NO. 19 & 1362/MDS/2015 :- 5 -: WAS USED IN THE PURCHASE OF LAND PROPERTY. BASED O N THE SUBMISSIONS, THE LD. ASSESSING OFFICER DEALT ON THE PROVISIONS O F SEC. 27(1) AND 64(1)(IV) OF THE ACT AT PAGE 3 & 4 OF HIS ORDER AND CALLED FOR THE ASSESSMENT PARTICULARS OF HER HUSBAND SHRI. GOVIND PILLAI YUVARAJ FOR THE ASSESSMENT YEAR 2011-2012 WHO WAS ASSESSED TO I NCOME TAX WITH INCOME TAX OFFICER, SALARY WARD VI(3), CHENNAI WERE HE HAS DECLARED THE ENTIRE SALE CONSIDERATION OF A1,50,00,000/- IN THE RETURN OF INCOME AND RE-INVESTED A1,46,69,950/- IN A RESIDENTIAL PR OPERTY AT MAHINDRA WORLD CITY, NEW CHENNAI JOINTLY WITH HIS WIFE AND C LAIMED EXEMPTION U/S.54F OF THE ACT. THE LD. ASSESSING OFFICER PER USED THE PROVISIONS OF SEC. 54F(1) OF THE ACT AND IS OF THE OPINION THAT ASSESSEES SHARE OF LONG TERM CAPITAL GAINS ARISING OUT OF SALE OF LAND CANNOT BE CLUBBED AND RELIED ON THE DECISION OF HONBLE HIGH COURT O F BOMBAY IN THE CASE OF PRAKASH VS. INCOME TAX OFFICER (2008) 173 TAXMAN 31 1 (BOM) . FURTHER CONSIDERING THE FACTUAL ASPECTS AND THE PROVISIONS OF LAW, THE LD. ASSESSING OFFICER BASED ON THE EQUIRY AND INFORMATION SUBMITTED BY THE ASSESSEE IS OF THE OPINION THAT TH E ASSESSEE IS NOT ELIGIBLE FOR EXEMPTION U/SEC. 54F OF THE ACT AS TH E ASSESSEE OWNS MORE THAN ONE RESIDENTIAL HOUSE ON THE DATE OF SALE AND HAS OFFERED INCOME OF PROPERTIES UNDER INCOME FROM HOUSE PROPER TY. THE LD. ASSESSING OFFICER FURTHER EXPLAINED THAT THE ASSESS EE AND HER HUSBAND INDEPENDENTLY QUALIFIED FOR CLAIM FOR EXEMPTION TO THE EXTENT OF THEIR ITA NO. 19 & 1362/MDS/2015 :- 6 -: SHARE OF CAPITAL GAINS. BUT SINCE THE ASSESSEE I S HOLDING MORE THAN TWO PROPERTIES AND SHE IS NOT ELIGIBLE FOR THE EXE MPTION AND OFFERING OF ENTIRE CAPITAL GAINS ON SALE IN THE HANDS OF TH E SPOUSE SHRI. GOVINDA PILLAI YURVARAJ, IS NOT IN ACCORDANCE WITH LAW. HENCE, 50% SHARE OF LONG TERM CAPITAL GAINS A72,17,443/- WAS ADDED TO THE RETURNED INCOME ALONGWITH OTHER DISALLOWANCES AND T HE LD. ASSESSING OFFICER PASSED ORDER U/S.143(3) OF THE ACT DATED 30 .12.2013. AGGRIEVED BY THE ORDER, THE ASSESSEE FILED AN APPEA L BEFORE COMMISSIONER OF INCOME TAX (APPEALS). 4. IN THE APPELLATE PROCEEDINGS, THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE ARGUED THE GROUNDS A ND EXPLAINED THE APPLICABILITY OF PROVISIONS. FURTHER, THE LD. ASSES SING OFFICER IS BAD IN LAW FOR TREATING THE LONG TERM CAPITAL GAINS AS TAX ABLE IN THE HANDS OF THE ASSESSEE IRRESPECTIVE OF THE FACT THAT THE ASSE SSEES HUSBAND SHRI. GOVIND PILLAI YUVARAJ HAS PURCHASED PROPERTY AND TH E ASSESSEE HAS NOT INVESTED ANY AMOUNT IN PURCHASE OF THE PROPERTY. T HEREFORE, SALE CONSIDERATION IS SUBJECTED TO TAX IN THE HANDS OF A SSESSEES HUSBAND AND WAS DISCLOSED IN THE INCOME TAX RETURN AND PRA YED FOR ALLOWING THE APPEAL. THE LD. COMMISSIONER OF INCOME TAX (AP PEALS) CONSIDERED THE SUBMISSIONS AND THE FINDINGS OF THE LD. ASSESS ING OFFICER WHICH HAS BEEN DEALT ON THE FACTS OF THE ISSUE WERE INC OME FROM CAPITAL ITA NO. 19 & 1362/MDS/2015 :- 7 -: GAINS HAS BEEN OFFERED TO TAX IN THE HANDS OF THE ASSESSEES HUSBAND AND PERUSED COPY OF THE INCOME TAX RETURN AND COM PUTATION OF INCOME AND PENDING OF CASE BEFORE APPELLATE AUTHOR ITY AND FINALLY CONCLUDED THAT SINCE ENTIRE CAPITAL GAINS ARE TAXE D IN THE ASSESSEES SPOUSE SHRI. GOVINDA PILLAI YUVARAJ, THE LD. COMMIS SIONER OF INCOME TAX (APPEALS) HAS DELETED THE ADDITION REFERRED AT PARA 7.4 OF HIS ORDER AS UNDER:- 7.4. CONSIDERING THE ABOVE FACTS AND THE ORDER OF THE ASSESSING OFFICER IN THE SPOUSE CASE AS WELL AS THE COMMISSIONER OF INCOME TAX (APPEALS) ORDER IN ITA NO.1770/13-14/A-15, DATED 28.11.2014 IN THE CASE OF SHRI. G. YUVRAJ FOR A.Y. 2011-12, IT IS CLEAR THAT THE APPELLANTS SPOUSE IS THE DE JURE AS WELL AS DE FAC TO OWNER OF THE PROPERTY. SINCE THE FULL CAPITAL GAIN S ON THE SAID PROPERTY HAD BEEN TAXED ON THE APPELLANTS SPOUSE ON THE FULL SALE CONSIDERATION, THE ADDITION MADE BY THE LD. ASSESSING OFFICER IS DELETED AND TH E GROUNDS ALLOWED. AGGRIEVED BY THE ORDER, THE REVENUE ASSAILED AN A PPEAL BEFORE COMMISSIONER OF INCOME TAX (APPEALS). 5. BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE ARG UED AND EXPLAINED THAT THE PROPERTY SOLD IS A JOINT PROPER TY WERE THE ASSESSEE AS CO-OWNER HOLDS 50% SHARE AND THERE IS NO DISCLOS URE OF SALE ITA NO. 19 & 1362/MDS/2015 :- 8 -: TRANSACTION IN THE RETURN OF INCOME. THE EXPLANAT IONS IN THE ASSESSMENT PROCEEDINGS THAT THE PROPERTY PURCHASED WAS REGISTERED IN JOINT NAMES THOUGH ENTIRE SALE CONSIDERATION WAS PAID BY ASSESSEES HUSBAND. THE LD. COMMISSIONER OF INCOME TAX (APPEA LS) ERRED IN DELETING THE ADDITION OF A72,17,443/- WERE THE PROP ERTY IS HELD IN THE JOINT NAMES OF HUSBAND AND WIFE. WHEN THE PROPERT Y WAS SOLD IN FINANCIAL YEAR 2010-2011 AS PER SALE DEED NO.1212/2 011, THE ASSESSEE HAS RECEIVED A SEPARATE CHEQUE FOR 50% SALE CONSIDE RATION A75,00,000/-. THE EXPLANATION OF THE ASSESSEE THA T HER HUSBAND HAS PURCHASED THE PROPERTY AND ON SALE IF ANY CAPITAL GAINS ARISES SAME IS LIABLE TO BE TAXED IN HER SPOUSE HANDS. THE AS SESSEES HUSBAND HAS INTENTIONALLY OFFERED ENTIRE INCOME ON SALE OF PROP ERTY IN HIS HAND AND CLAIMED EXEMPTION U/S.54F OF THE ACT AS THE ASSESSE E IS NOT ELIGIBLE FOR CLAIM OF EXEMPTION U/S. 54F OF THE ACT AS SHE OWNS TWO RESIDENTIAL PROPERTY IN HER NAME AS DISCUSSED BY THE LD. ASSES SING OFFICER IN ASSESSMENT ORDER. IN THE SALE OF PROPERTY, THE AS SESSEE ALSO HOLD EQUAL RIGHT AND LIABLE TO INCOME TAX AND THERE IS NO TRANSFER FOR INADEQUATE CONSIDERATION TO CLAIM BENEFIT UNDER PRO VISIONS OF SEC. 64 OF THE ACT. THE LD. DEPARTMENTAL REPRESENTATIVE PRAYED FOR SET ASIDE OF THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS ) AND RESTORE THE ASSESSING OFFICER ORDER. ITA NO. 19 & 1362/MDS/2015 :- 9 -: 6. ON THE OTHER HAND, THE LD. AUTHORISED REPRESENTATIV E RELIED ON THE ORDERS OF COMMISSIONER OF INCOME TAX (APPE ALS) AND VEHEMENTLY OPPOSED THE GROUNDS. 7. WE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIA L ON RECORDS AND JUDICIAL DECISIONS CITED. THE CONTENTI ON OF THE LD. DEPARTMENTAL REPRESENTATIVE THAT THE ASSESSEE HAVI NG SOLD PROPERTY AND OBTAINED LONG TERM CAPITAL GAINS AND SHOULD HAV E DISCLOSED IN HER RETURN OF INCOME FOR ASSESSMENT YEAR 2011-12 AN D NOT IN SPOUSE RETURN OF INCOME. ON THE OTHER HAND, THE LD. AUTHO RISED REPRESENTATIVE RELIED ON THE ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS) AND EXPLAINED THAT THE PROPERTY WAS PUR CHASED IN THE YEAR 2003 AND PURCHASE CONSIDERATION WAS PAID BY ASSESS EES HUSBAND IRRESPECTIVE OF THE FACT THAT THE PROPERTY WAS REGI STERED IN JOINT NAME. WE ALSO PERUSED THE SALE DEED DATED 23.02.2011 AT PAGE 29 OF PAPER BOOK WERE ABSOLUTE SALE DEED WAS EXECUTED BY ASSES SEE AND HER HUSBAND. FURTHER, WE ALSO PERUSED THE PURCHASE DEED OF THE SAID PROPERTY DATED 15.12.2003 WHICH WAS EXECUTED IN FA VOUR OF THE ASSESSEE AND HER HUSBAND. THE ASSESSEE HAS NOT PAI D ANY SALE CONSIDERATION FOR PURCHASE OF PROPERTY IN THE YEAR 2003 AND RELIED ON THE PROVISIONS OF SEC. 27 & SEC. 64 OF THE ACT. TH E LD. AUTHORISED REPRESENTATIVE EXPLAINED THAT THE ASSESSEE IS FILIN G WEALTH TAX RETURNS ITA NO. 19 & 1362/MDS/2015 :- 10 -: AND DISCLOSED THE PROPERTY IN THE COMPUTATION OF NE T WEALTH. THE FACTS REMAINS THE REASONS ENVISAGED BY THE LD. AUTH ORISED REPRESENTATIVE THAT SINCE THE PURCHASE CONSIDERATIO N WAS PAID IN 2003 BY HER HUSBAND THOUGH REGISTERED IN JOINT NAME AN D THE CAPITAL GAINS IS LIABLE TO TAXED IN THE HANDS OF ASSESSEE H USBAND CANNOT BE ACCEPTABLE. FURTHER, ON PERUSAL OF ASSESSMENT ORD ER ON THE CLAIM OF EXEMPTION U/S.54F OF THE ACT, THE ASSESSEE HAS TO C OMPLY THE CONDITIONS U/S.54F(1) OF THE ACT. BUT THE ASSESSE E IS HOLDING MORE THAN TWO RESIDENTIAL HOUSE AND IS NOT ELIGIBLE FOR EXEMPTION U/S.54F OF THE ACT AND BECAUSE OF DISQUALIFICATION OF CLAIM ENTIRE SALE CONSIDERATION WAS DISCLOSED IN THE HUSBAND INCOME TAX ASSESSMENT FOR CLAIM OF EXEMPTION U/SEC. 54F OF THE ACT. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ONLY RELIED ON THE FACTS T HAT THE ASSESSEES HUSBAND IS A DEFACTO OWNER OF THE PROPERTY AND CAPI TAL GAINS HAS BEEN OFFERED, IN HIS ASSESSMENT AND DELETED THE ADDITION . THE LD. AUTHORISED REPRESENTATIVE HAS FILED VOLUMINOUS INFO RMATION OF PURCHASE OF PROPERTY, SALE DEED, AGREEMENT OF LEA SE WITH BUILDER AND SUBMISSIONS ON INCOME TAX AND WEALTH TAX MADE IN TH E ASSESSMENT PROCEEDING. WE ARE OF THE OPINION THAT THE INFORMA TION HAS TO BE VERIFIED ON THE ASPECTS OF OWNERSHIP OF THE ASSESSE E AND REINVESTED IN RESIDENTIAL PROPERTY AND COMPLYING THE STIPULATE D CONDITIONS FOR CLAIM OF EXEMPTION U/SEC. 54F OF THE ACT. THEREFORE, WE SET ASIDE THE ORDER ITA NO. 19 & 1362/MDS/2015 :- 11 -: OF THE COMMISSIONER OF INCOME TAX (APPEALS) AND REM IT THE DISPUTED ISSUE TO THE FILE OF THE LD. ASSESSING OFFICER TO P ASS THE ORDER AFRESH AND PROVIDE ADEQUATE OPPORTUNITY TO ASSESSEE BEFORE PASSING THE ORDER. THE GROUND OF THE REVENUE IS ALLOWED FOR ST ATISTICAL PURPOSE. 8. NOW, WE TAKE UP APPEAL IN ITA NO.19/MDS/2015 OF ASSESSMENT YEAR 2011-12 FOR ADJUDICATION:- THE ASSE SSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IS AGAINST LAW, FACTS AND PROBABILITIES OF THE CASE. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAD FAILED TO CONSIDER, THAT THE PROVISIONS OF SECTION 54F DO NOT CONTEMPLATE A ONE TO ONE CO-RELATION BETWEEN THE SALE PROCEEDS OF THE ORIGINAL ASSET TRANSFERRED AND INVESTMENT IN THE NEW ASSET. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE SEEN THAT SECTION 54F ALLOWS EXEMPTION FOR PURCHASE OF A HOUSE EVEN ONE YEAR PRIOR TO THE DATE OF TRANSFER. IN SUCH A CASE, THERE IS NO REQUIREMENT TO RELATE THE CAPITAL GAIN ARISING OUT OF THE ORIGINAL ASSET AND ITS INVESTMENT IN THE NEW ASSET. 4. THE LEARNED COMMISSIONER OF INCOME TAX HAD NOT APPRECIATED THE FACT THE APPELLANT HAD UTILIZED THE NET CONSIDERATION FOR CONSTRUCTION OF A NEW ASSET BEFORE THE DATE OF FURNISHING THE RETURN AND HENCE THE GAINS ON THE TRANSFER OF THE ORIGINAL ASSET SHALL NOT BE CHARGED TO CAPITAL GAINS. 5. SECTION 54F, BEING A BENEVOLENT PROVISION, SHOULD HAVE BEEN LIBERALLY CONSTRUED BY THE ITA NO. 19 & 1362/MDS/2015 :- 12 -: LEARNED COMMISSIONER OF INCOME TAX (APPEALS). , 6. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT THE ASSESSEE HAS OTHER SURPLUS FUNDS, WHICH COULD HAVE BEEN INVESTED IN THE NEW ASSET. 9. THE MAIN CONTENTION OF THE ASSESSEE THAT THE PROP ERTY IS A JOINT PROPERTY WITH WIFE SMT. MAHESHWARI YUVARAJ AN D WAS SOLD FOR A CONSIDERATION OF A1,50,00,000/- AND THE ASSESSEE HA S OFFERED ENTIRE CAPITAL GAINS IN HIS HANDS IRRESPECTIVE OF THE FACT OF EQUAL OWNERSHIP AND THE ASSESSEE HAS CLAIMED EXEMPTION U/S.54F OF THE ACT ON INVESTMENT IN RESIDENTIAL HOUSE PROPERTY. AT THIS STAGE, WE FIND IT APPROPRIATE AS THE DEPARTMENT APPEAL IN ASSESSEES WIFE CASE IS SET ASIDE TO THE ASSESSING OFFICER AND THE ASSESSEE CAS E IS ALSO INTERLINKED IN RESPECT OF OWNERSHIP/ SALE CONSIDERATION AND INV ESTMENT. WE ARE OF THE OPINION THAT THE DISPUTED ISSUE HAS TO BE REMIT TED TO THE FILE OF LD. ASSESSING OFFICER FOR FRESH CONSIDERATION. THEREFO RE, WE SET ASIDE THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) AND R EMIT THE ENTIRE ISSUE TO THE FILE OF THE LD. ASSESSING OFFICER AND SHALL PASS THE ORDER ON MERITS AFTER DUE VERIFICATION OF DOCUMENTS FILED A ND ASSESSEE SHALL BE PROVIDED WITH ADEQUATE OPPORTUNITY OF HEARING BEFOR E PASSING THE ITA NO. 19 & 1362/MDS/2015 :- 13 -: ORDERS. THE GROUND OF THE ASSESSEE IS ALLOWED FOR S TATISTICAL PURPOSE. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN ITA NO.19/MDS/2015 AND DEPARTMENT APPEAL IN ITA NO.136 2/MDS/2015 FOR ASSESSMENT YEAR 2011-2012 ARE ALLOWED FOR STATI STICAL PURPOSE. ORDER PRONOUNCED ON FRIDAY, THE 29TH DAY OF JUL Y, 2016, AT CHENNAI. SD/- SD/- ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER ( . ! ) (G. PAVAN KUMAR) / JUDICIAL MEMBER / CHENNAI + / DATED: 29.07.2016 KV , & -''./ 0/%' / COPY TO: 1 . 12 / APPELLANT 3. 3' () / CIT(A) 5. /67 -''' / DR 2. -812 / RESPONDENT 4. 3' / CIT 6. 79$ : / GF