Smt. Arunaben S. Patel, Vadodara V. The Income Tax Officer, Ward-1(2)(3), Vadodara

ITA 158/AHD/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2038 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 21-01-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Keywords: Cost of acquisition
• Section: 143(3); 54F; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER SMT. ARUNABEN S. PATEL, 41, PRAMUKH SWAMI VIHAR SOCIETY, NR. AKSHAR CHOWK, OLD PADRA ROAD, VADODARA - 390020 PAN: AVEPP1027D (APPELLANT) VS THE IT O , WARD - 1 (2)(3) , VADODARA (RESPONDENT) REVENUE BY : S H RI S.K. DEV , SR . D . R. ASSESSEE BY: SHRI KAMLESH BHATT, A.R. DATE OF HEARING : 11 - 06 - 2 019 DATE OF PRONOUNCEMENT : 18 - 06 - 2 019 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEM BER : - THIS ASSESSEE S APPEAL FOR A.Y. 2012 - 13 , ARI SES FROM ORDER OF THE CIT(A) - 5, VADODARA DATED 30 - 10 - 2 015 , IN PROCEEDINGS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. BOTH THE GROUNDS OF APPEAL OF THE ASSESSEE ARE INTER - CO NNECTED TO THE ISSUE OF ASSESSING CAPITAL GAIN IN THE YEAR OF THE TRANSFER OF PROPERTY AND I T A NO . 158 / A HD/20 16 A SS ESSMENT YEAR 2012 - 13 I.T.A NO. 158 /AHD/20 16 A.Y. 2012 - 13 PAGE NO SMT. ARUNABEN S. PATEL VS. IT O 2 CL A I M OF EXEMPTION U/S. 54F OF THE ACT, THEREFORE, FOR THE SAKE OF CONVENIENCE BOTH THE GROUND S OF APPEAL ARE ADJUDICATED TOGETHER. 3. THE FACT IN BRIEF IS THAT ASSESEEE HAS FILED RETURN OF INCOME DECLARING INCOME AT RS. 9 , 74 , 220/ - ON 10 TH AUGUST, 2013. DURING THE YEAR UNDER CONSIDERATION , THE ASSESSEE HAS SOLD A LAND FOR A CONSIDERATION OF RS . 66 , 04 , 307/ - BEING 1/3 SHAREHOLDER IN THE LAND AND CLAIMED EXEMPTION U/S. 5 4F OF THE ACT FOR THE AMOUNT OF RS . 54 , 12 , 898 AS WELL AS INDEXED COST OF ACQUISITION AMOUNTING TO RS. 3 , 43 , 108/ - . T HE ASSESSING OFFICER HAS REJECTED THE CLAIM OF DEDUCTION U/S. 54F OF THE ACT ON THE GROUND THAT THE ORIGINAL ASSET WAS TRANSFERRED O N 17 TH SEP, 2011 THEREFORE THE ASSESSE E SHOULD HAVE PURCHASED A NEW HOUSE WITHIN A SPAN OF TWO YEARS OR SHOULD HAV E CONSTRUCTED A NEW HOUSE WITHIN A PERIOD OF THREE YEARS FROM THE DATE OF SUCH TRANSFER. HE WA S OF THE VIEW THAT ASSESSEE SHOULD H AV E CONSTRU CTED A NEW HOUSE BY 30 TH SE P, 2014. CONSEQUENTLY, THE ASSESSING OFFICER HAS DISALLOWED THE CLAIM OF DEDUCTION U/S. 54F OF THE ACT. 4. AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE THE LD. CIT(A). T HE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. ON PERUSAL OF THE COPIES OF AGREEMENT PLACED IN THE PAPER BOOK, IT IS NOTICED THAT ORIGINAL ASSET WAS TRANSFERRED ON 19 TH SEP, 2011 TO THE DEVELOPE R M/S NARAYANAN SWAUP D EVELOPER S FO R A CONSIDERATION OF RS. 601 PER SQ. FT. OF CONSTRUCTION PERMITTED ON T H E LAND. IT IS UNDISPUTED FACT THAT AS PER RETURN OF INCOME THE ASSES S EE HAS HE RSELF OFFERED THE GAIN AS LONG TERM GAIN IN THE I.T.A NO. 158 /AHD/20 16 A.Y. 2012 - 13 PAGE NO SMT. ARUNABEN S. PATEL VS. IT O 3 ASSESSMENT YEAR 2012 - 13. THEREFORE, THIS PLEA OF THE ASS ESSEE THAT CA P IT A L GAIN IN HER CASE SHOULD HAVE BEEN ASSESSED BY THE ASSESSING OFFICER IN THE YEAR OF ITS TRANSFER H AS NO SUBSTANCE AS ASSESSING OFFICER HAS RIGHTLY ASSESS ED THE CA PIT AL GAIN IN THE YEAR IN WHICH T H E AGREEMENT WITH THE DEVELOPER WAS EXECUTE D. THEREFORE, FIRST GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED . 6. REGARDING SECOND GROUND OF APPEAL FOR NOT ALLOWING EXEMPTION U/S. 54F OF THE IT ACT ON THE GROUND THAT SHE HAD NEITHER PURCHASED A NEW ASSET WITHIN TWO YEARS NOR CONSTRUCTED A NEW ASS ET WITHIN THREE Y EARS OF TH E S AL E OF THE ORIGINAL ASSET, W E HAVE GONE THROUGH T H E MATERIAL ON RECORD AND NOTICED THAT ASSESSING OFFICER IN HIS FINDING AT PAGE NO. 12 OF THE ASSESSMENT ORDER HAS HELD THAT ASSESSEE HAS BOOKED A HOUSE AND ALLOTMENT OF THE SAM E HAS BEEN GI VEN. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE SHOULD HAVE PURCHASED A NEW HOUSE INSTEAD OF MERELY BOOKING A NEW HOUSE . REGARDING AVAILABILITY OF DEDUCTION U/S 54F OF THE ACT ON THE BASIS OF BOOKING OF A NEW HOUSE, WE HAVE PE RUSED THE CIRCULAR NOS. 471 AND 672 ISSUED BY CBDT. THE RELEVANT PARTS OF THESE CIRCULARS ARE CITED AS UNDER: - IN CBDT CIRCULAR NO. 471 DATED 15 - 10 - 1986 AS UNDER: - SECTION 54 OF THE INCOME - TAX ACT, 1961 - CAPITAL GAINS - PROFIT ON SALE OF PROPERTY USED F OR RESIDENTIAL HOUSE - INVESTMENT IN A FLAT UNDER THE SELF - FINANCING SCHEME OF THE DELHI DEVELOPMENT AUTHORITY - WHETHER TO BE TREATED AS CONSTRUCTION FO R THEJPURPOSES OF CAPITAL GAINS CBDT CIRCULAR NO. 672 DATED 16 TH DEC, 1993 HAS EXTENDED THE BENEFIT OF CIRCULAR NO. 471 TO THE OTHER CASE S AS UNDER : - SECTION 54 OF THE INCOME - TAX ACT, 1961 - CAPITAL GAINS - PROFIT ON SALE OF PROPERTY USED FOR RESIDENTIAL HOUSE - WHETHER ALLOTMENT OF FLATS/HOUSES BY CO - OPERATIVE SOCIETIES AND OTHER INSTITUTIONS, WHOSE SCHEME S OF ALLOTMENT AND C ONSTRUCTION ARE SIMILAR TO THOS E OF DDA, SHOULD BE TREATED AS CASES OF CONSTRUCTION FOR PURPOSES OF SECTIONS 54 AND 54F I.T.A NO. 158 /AHD/20 16 A.Y. 2012 - 13 PAGE NO SMT. ARUNABEN S. PATEL VS. IT O 4 IN THIS REGARD , WE NOTICED THAT THERE WAS NO DOCUMENT PLACED IN THE PAPER BOOK TO DEMONSTRATE THAT ASSESSEE HAS BO OKED THE HOUSE AND ALLOTMENT WAS GIVEN TO HER. IN THE LIGHT OF THE ABOVE CITED CIRCULARS ISSUED BY THE CBDT, WE RESTORE THE ISSUE OF CLAIM OF EXEMPTION U/S. 54F OF THE ACT ON THE BASIS OF BOOKING AND ALLOTMENT OF NEW HOUSE TO THE FILE OF ASSESSING OFFICER FOR DECIDING DE - NOVO AFTER EXAMINATION/VERIFICATION OF THE SUPPORTING MATERIALS TO BE PRODUCED BY THE ASSESSEE ACCORDING TO THE TERMS/CONDITIONS LAID DOWN IN THE REFERRED CIRCULARS ISSUED BY THE CBDT. THEREFORE, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 7. IN THE RESULT, THE APPEAL FOR THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PR ONOUNCED IN THE OPEN C OURT ON 18 - 06 - 201 9 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 18 /06 /2019 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,