Late Smt.Sulbha Ajmani, Chandigarh V. The Income Tax Officer, Chandigarh

ITA 1401/CHANDI/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 8217 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 16-12-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Capital Gains
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 54EC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, SMC, CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER ITA NO. 1401/CHD/2016 ASSESSMEN T YEAR: 2006-07 LATE SMT. SULBHA AJMANI, VS. THE ITO, THROUGH L/H SHRI ATUL AJMANI, WARD 3(2), # 3132, SECTOR 20D, CHANDIGARH. CHANDIGARH. PAN NO. ABGPA9943G (APPELLANT) (RESPONDENT) APPELLANT BY : SH. TEJ MOHAN SINGH RESPONDENT BY : NONE DATE OF HEARING : 30.03.2017 DATE OF PRONOUNCEMENT : 30.03.2017 ORDER BY THE PRESENT APPEAL, THE ASSESSEE ASSAILS THE COR RECTNESS OF THE ORDER DATED 12.09.2016 OF CIT(APPEALS)-I CHANDIGARH PERTA INING TO 2006-07 ASSESSMENT YEAR ON VARIOUS GROUNDS. HOWEVER, AT TH E TIME OF HEARING, LD. AR MR. TEJ MOHAN SINGH ADDRESSING THE GROUNDS RAISED S UBMITTED THAT THE ASSESSEE WISHES TO PRESS ONLY GROUND NOS. 3 AND 4 AND DOES N OT WANT TO PRESS THE JURISDICTIONAL ISSUES RAISED IN GROUND NOS. 1 AND 2 . ACCORDINGLY, GROUND NO. 3 AND 4 ARE REPRODUCED HEREUNDER : 3. WITHOUT PREJUDICE TO THE ABOVE, THE LD. COMMISSIONE R OF INCOME TAX(APPEALS) HAS ERRED IN UPHOLDING THAT THE ADDITI ON OF RS.7,90,940/- MADE UNDER THE HEAD 'CAPITAL GAINS' TREATING THE SHARE O F PROPERTY OF HER HUSBAND TO BE THAT OF THE ASSESSEE WHICH IS CONTRARY TO THE FA CTS ON RECORD AND AS SUCH THE ADDITION UPHELD IS ARBITRARY AND UNJUSTIFIED. 4. THAT AGAIN WITHOUT PREJUDICE TO THE ABOVE, THE LD. COMMISSIONER OF INCOME TAX(APPEALS) HAS FURTHER ERRED IN NOT ALLOWING THE BENEFIT OF DEDUCTION UNDER SECTION 50EC OF THE ACT IN RESPECT OF INVESTMENT OF RS. 12 LACS MADE BY HER HUSBAND EVEN THOUGH THE CAPITAL GAINS HAVE BEEN ADD ED BACK IN THE HANDS OF THE ASSESSEE AND AS SUCH THE NON ALLOWANCE OF THE DEDUC TION IS ARBITRARY AND UNJUSTIFIED. 2. AT THE TIME OF HEARING, AN ADJOURNMENT PETITION HAD BEEN MOVED BY THE REVENUE. THE RECORD SHOWS THAT ON THE LAST DATE OF HEARING ALSO I.E. 27.02.2017 2 IT WAS ADJOURNED ON THE REQUEST OF THE DEPARTMENT. IN THE CIRCUMSTANCES, SINCE THE APPEAL COULD BE DECIDED ON THE BASIS OF MATERIA L AVAILABLE ON RECORD, IT WAS CONSIDERED APPROPRIATE TO REJECT THE ADJOURNMENT AP PLICATION AFTER HEARING THE LD. AR. THE LD. AR INVITING ATTENTION TO THE ASSES SMENT ORDER SUBMITTED THAT THE ASSESSEE HAD SHOWN LONG TERM CAPITAL GAIN AS HE R HALF SHARE OF THE SALE PROCEEDS OF HOUSE NO. 3132 SECTOR 20D, CHANDIGARH. THE ASSESSEE HAD SHOWN HALF SHARE IN THE SALE CONSIDERATION SHOWN BY ASSES SEE WAS AT RS. 14,87,500/- AND AFTER INDEXATION, I.E. RS 4,92,030/- , THE CAPI TAL GAINS HAD BEEN WORKED OUT AT RS. 9,95,470/- AND FURTHER THE ASSESSEE HAD CLAIMED DEDUCTION U/S 54 EC AS SHE HAD PURCHASED REC BONDS WORTH RS 12,00,000/- . THE ASSESSING OFFICER CONSIDERED THAT SINCE THE HOUSE WAS IN THE SOLE NAM E OF THE ASSESSEE, ACCORDINGLY, HE HELD THAT THE SALE CONSIDERATION SH OULD HAVE BEEN TAKEN AT RS. 29,75,000/- AND NOT RS. 14,87,500/-. IN THE CIRCUM STANCES, IT WAS HIS SUBMISSION THAT THE LIMITED PRAYER OF THE ASSESSEE IS THAT BENEFIT OF INVESTMENT IN REC BONDS UNDER SECTION 54EC BY THE HUSBAND OF T HE ASSESSEE SHRI DHARAMVIR AJMANI SHOULD BE CONSIDERED IN THE HANDS OF THE ASSESSEE. IT WAS HIS SUBMISSION THAT THE ASSESSEE AND HER HUSBAND AR E NO MORE TODAY AND THE PRESENT APPEAL HAS BEEN FILED BY THE LEGAL HEIR. AC CORDINGLY, HE WOULD HAVE NO OBJECTION IF THE FACTS ARE REQUIRED TO BE VERIFIED BY THE ASSESSING OFFICER, HOWEVER, DIRECTION WAS SOUGHT THAT IN CASE THE ENTI RE SALE PROCEEDS ARE TO BE CONSIDERED IN THE HANDS OF THE ASSESSEE ON THE GROU ND THAT IT WAS SOLELY IN HER NAME, THEN THE RELEVANT RELIEF UNDER SECTION 44EC O F THE ACT WHEREIN THE INVESTMENT IS FLOWN FROM THE VERY SAME BANK ACCOUNT IN THE REC BONDS, THOUGH IN THE NAME OF THE HUSBAND SHOULD BE GIVEN. 3. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. I FIND THAT IN THE YEAR UNDER CONSIDERATIO N, THE SPECIFIC PROPERTY SOLD BY THE ASSESSEE WAS HOUSE NO. 3132 SECTOR 20D, CHAN DIGARH. I FIND THAT THE PAN OF THE HUSBAND SHRI DHARAMVIR AJMAN HAS BEEN GI VEN ON RECORD AS ABJPA4262G AND FROM THE VERY SAME PROCEEDS, INVESTM ENT OF RS. 12 LACS FROM 3 THE SALE CONSIDERATION OF THIS PROPERTY HAS BEEN MA DE. IN THE CIRCUMSTANCES, SINCE THE TAX AUTHORITIES HAVE NOT ACCEPTED THE CLA IM THAT THE SAID PROPERTY WAS IN A FACT JOINTLY HELD BY HUSBAND AND THE WIFE AND GUIDED BY THE NAME IN THE PROPERTY DEEDS, HAVE TAKEN THE POSITION THAT IT SOLELY BELONGED TO THE WIFE. IN THE CIRCUMSTANCES, THE RELIEF SOUGHT BY THE ASSE SSEE HAS TO BE PERMITTED. THE INVESTMENT IN THE REC BONDS UNDER SECTION 54EC MADE BY THE HUSBAND SHRI DHARAMVIR AJMANI ON VERIFICATION CLAIMED TO TH E EXTENT OF RS. 12 LACS HAS TO BE ALLOWED. ACCORDINGLY, THE LIMITED PRAYER OF T HE ASSESSEE IS ALLOWED. THE ASSESSING OFFICER IS DIRECTED TO GRANT NECESSARY RE LIEF OF VERIFICATION. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT 30 TH MARCH,2017. SD/- (DIVA SINGH) JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR