Smt. Sheela Singh, Rohtak V. ITO, Rohtak

ITA 1394/DEL/2015

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 5303 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2010-2011
• Appeal Filed On: 10-03-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAVIKANT GUPTA
• Assessee Lawyers: U S AGARWAL
• Keywords: Search and seizure
• Section: 54B; 54F; 148

Judgement Text

ITA NO. 1394/DEL/2015 ASSESSMENT YEAR 2010-11 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE PRESIDENT AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 1394/DEL/2015 ASSESSMENT YEAR: 2010-11 SHEELA SINGH, VS INCOME TAX OFFICER, HOUSE NO. 95, WARD 4, SHEELA BHAWAN, AAYAKAR BHAWAN, SUBHASH NAGAR, ROHTAK. ROHTAK-124001 (PAN: AIQPS8832A) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI U.S. AGARWAL, ADVOCATE RESPONDENT BY : SHRI RAVI KANT GUPTA, SR. DR DATE OF HEARING: 18.07.2018 DATE OF PRONOUNCEMENT : ORDER PER SUDHANSHU SRIVASTAVA, J.M. THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST TH E ORDER DATED 5.1.2015 PASSED BY THE LD. CIT (APPEALS), ROH TAK FOR ASSESSMENT YEAR 2010-11 WHEREIN VIDE THE IMPUGNED O RDER, THE LD. CIT (A) HAS CONFIRMED THE ADDITION OF RS. 24,00 ,000/- BY DISALLOWING THE ASSESSEES CLAIM U/S 54F OF THE INC OME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT'). ITA NO. 1394/DEL/2015 ASSESSMENT YEAR 2010-11 2 2.0 BRIEF FACTS OF THE CASE ARE THAT AS PER THE AIR INFORMATION THE ASSESSEE HAD SOLD AN IMMOVEABLE PROPERTY FOR RS . 90,00,000/-. ACCORDINGLY, A QUERY LETTER WAS ISSUE D TO THE ASSESSEE TO FURNISH INFORMATION REGARDING THE NATUR E OF TRANSACTION, PAN OF THE ASSESSEE AND TO INFORM WHET HER THE RETURN OF INCOME WAS FILED DECLARING THE SAID TRANS ACTION OR NOT. IN RESPONSE, THE ASSESSEE INFORMED THE ASSESSING OF FICER THAT THE RETURN HAD BEEN FILED AND A COPY OF RETURN WAS ALSO ENCLOSED. A PERUSAL OF THE RETURN SHOWED THAT THE ASSESSEE HAD FILED THE RETURN OF INCOME DECLARING PENSION OF RS. 3,79,632/ - AND HAD ALSO DISCLOSED THE SALE OF PROPERTY AS WELL AS PURC HASE OF OTHER PROPERTIES. THE ASSESSING OFFICER NOTED THAT AS PE R THE SALE DEED, THE ASSESSEE HAD SOLD A PROPERTY OTHER THAN RESIDEN TIAL HOUSE FOR RS. 90,00,000/- AND HAD PURCHASED A COMMERCIAL PROP ERTY (SHOP) BEARING NO. G-34 FOR RS.18,80,000/-, ANOTHER COMME RCIAL PROPERTY BEARING NO. G-35 FOR RS. 32,80,000/- AND A NOTHER RESIDENTIAL PROPERTY BEARING NO. 22 FOR RS. 24,00,0 00/-. THE ASSESSING OFFICER NOTED THAT ALL THE PROPERTIES WER E PURCHASED IN THE NAME OF DR. SABINA SINGH AND, THEREFORE, SINCE THE ASSESSEE HAD NOT INVESTED THE ENTIRE SALES CONSIDERATION OF RS. 90,00,000/- FOR PURCHASE OF RESIDENTIAL HOUSE, THE CAPITAL GAIN WAS NOT EXEMPT ITA NO. 1394/DEL/2015 ASSESSMENT YEAR 2010-11 3 U/S 54F AS IN THE RETURN, THE ASSESSEE HAD CLAIMED EXEMPTION U/S 54F TO THE TUNE OF RS. 24,00,000/- BEING THE AM OUNT INVESTED IN PURCHASE OF RESIDENTIAL HOUSE. THE ASS ESSING OFFICER PROCEEDED TO ISSUE NOTICE U/S 148 OF THE ACT. IT W AS SUBMITTED BY THE ASSESSEE THAT THE RESIDENTIAL HOUSE WAS PURCHAS ED IN THE NAME OF DR. SABINA SINGH WHO WAS THE ASSESSEES DAU GHTER AND, THEREFORE, THE ASSESSEES CLAIM U/S 54F WAS ALLOWAB LE. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THE ASSESSEES CONTENTION AND PROCEEDED TO DISALLOW THE EXEMPTION CLAIMED BY THE ASSESSEE. 2.1 THE APPEAL OF THE ASSESSEE BEFORE THE LD. CIT ( A) WAS ALSO DISMISSED. NOW, THE ASSESSEE IS IN APPEAL BEFORE T HE ITAT AND HAS CHALLENGED THE DENIAL OF CLAIM OF EXEMPTION U/S 54F OF THE ACT. 3.0 THE LD. AR SUBMITTED THAT THE EXEMPTION WAS DEN IED ON THE GROUND THAT THE RESIDENTIAL HOUSE HAD BEEN PURCHASE D IN THE NAME OF THE ASSESSEES DAUGHTER. IT WAS SUBMITTED T HAT THIS VIEW WAS NOT CORRECT AS THE ASSESSEE HAD UTILIZED THE SA LE PROCEEDS OF THE PROPERTY ONLY FOR THE PURCHASE OF THIS RESIDENT IAL FLAT. IT WAS SUBMITTED THAT THE FACT THAT THE AMOUNT HAD BEEN PA ID BY THE ASSESSEE WAS DULY MENTIONED IN THE SALE DEED ITSELF AND OUR ATTENTION WAS DRAWN TO PAGE 15 OF THE PAPER BOOK WH EREIN A COPY ITA NO. 1394/DEL/2015 ASSESSMENT YEAR 2010-11 4 OF THE SALE DEED HAD BEEN PLACED. THE LD. AR POINTE D OUT THAT THE SALE DEED DULY MENTIONED THAT THE PURCHASE PRICE HA D BEEN PAID BY MRS. SHEELA SINGH, THE ASSESSEE. THE LD. AR PLA CED RELIANCE ON THE JUDGMENT OF THE DELHI HIGH COURT IN THE CASE OF CIT VS. SHRI KAMAL WAHAL REPORTED IN 351 ITR 4 (DEL) WHEREI N THE HONBLE DELHI HIGH COURT HAD HELD THAT WHEN THERE WAS NO DI SPUTE THAT THE ENTIRE INVESTMENT HAD COME OUT OF THE SALE PROC EEDS OF PROPERTY SOLD BY THE ASSESSEE, EXEMPTION U/S 54F WA S TO BE ALLOWED EVEN IF THE NEW RESIDENTIAL PROPERTY WAS AC QUIRED IN THE JOINT NAMES OF THE ASSESSEE AND HIS WIFE. THE LD. AR SUBMITTED THAT THE HONBLE DELHI HIGH COURT HAD HELD THAT THE EXEMPTION WAS TO BE ALLOWED HAVING REGARD TO THE RULE OF PURP OSIVE CONSTRUCTION AND THE OBJECT WHICH SECTION 54F SOUGH T TO ACHIEVE. IT WAS PRAYED THAT THE EXEMPTION BE ALLOWED TO THE ASSESSEE. 4.0 IN RESPONSE, THE LD. SR. DR PLACED RELIANCE ON THE JUDGMENT OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE C ASE OF KAMAL KANT KAMBOJ VS. ITO REPORTED IN 397 ITR 240 (P&H) A ND SUBMITTED THAT IN THIS CASE THE HONBLE PUNJAB & HA RYANA HIGH COURT HAD HELD THAT THE ASSESSEES CLAIM FOR EXEMPT ION U/S 54B OF THE ACT WAS NOT ALLOWABLE WHERE THE AGRICULTURAL LAND WAS PURCHASED BY THE ASSESSEE IN THE JOINT NAMES OF SEL F AND HIS SON. ITA NO. 1394/DEL/2015 ASSESSMENT YEAR 2010-11 5 IT WAS SUBMITTED THAT THE HONBLE PUNJAB & HARYANA HIGH COURT WAS THE JURISDICTIONAL HIGH COURT FOR THE ASSESSEE AND, THEREFORE, THE JURISDICTIONAL HIGH COURT BEING AGAINST THE ASS ESSEE, THE ASSESSEES CLAIM SHOULD NOT BE ALLOWED. THE LD. SR . DR ALSO SUBMITTED THAT IN THIS CASE, THE HONBLE PUNJAB & H ARYANA HIGH COURT HAD DULY CONSIDERED THE JUDGMENT RENDERED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. KAMAL WAHAL (SUPRA) AND HAD HELD THAT THEY WERE UNABLE TO SUBSCRIBE TO THE VIEW IN KAMAL WAHALS CASE. 5.0 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS ARE NOT IN DISPUTE. THE ONLY QUESTION ARISING FOR OUR CONSIDERATION IS AS T O WHETHER THE ASSESSEE WILL BE ENTITLED TO THE BENEFIT OF EXEMPTI ON U/S 54F OF THE ACT FOR PURCHASE OF RESIDENTIAL HOUSE IN THE NA ME OF HER DAUGHTER OR NOT. ALTHOUGH THE HONBLE DELHI HIGH C OURT HAS, ON IDENTICAL CIRCUMSTANCES, HELD IN FAVOUR OF THE ASSE SSEE IN THE CASE OF CIT VS. KAMAL WAHAL (SUPRA), WE ARE AFRAID THAT THE HONBLE JURISDICTIONAL HIGH COURT IS AGAINST THE ASSESSEE A ND HAS HELD IN KAMAL KANT KAMBOJ VS. ITO (SUPRA) THAT A LITERAL CO NSTRUCTION WAS TO BE PREFERRED OVER PURPOSIVE CONSTRUCTION. A CCORDINGLY, RESPECTFULLY FOLLOWING THE BINDING PRECEDENT OF THE HONBLE ITA NO. 1394/DEL/2015 ASSESSMENT YEAR 2010-11 6 JURISDICTIONAL HIGH COURT IN THE CASE OF KAMAL KANT KAMBOJ VS. ITO (SUPRA), WE DISMISS THE GROUNDS RAISED BY THE A SSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH OCTOBER, 2018. SD/- SD/- (G.D. AGRAWAL) (SUDHANSHU SR IVASTAVA) PRESIDENT JUD ICIAL MEMBER DATED: 11 TH OCTOBER , 2018 GS COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT BY ORDER ASSTT. REGISTRAR