ITO, Trichy V. N.Chandran, Trichy

ITA 1791/CHNY/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9367 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 06-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH IRS
• Assessee Lawyers: S SRIDHAR
• Keywords: Unexplained cash credit; Business income
• Section: 54F; 131

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . , . , BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBE R AND SHRI. G. PAVAN KUMAR, JUDICIAL MEMBER ./I.T.A. NO.1791/MDS/2015 / ASSESSMENT YEAR : 2011-2012. INCOME TAX OFFICER, NON-CORPORATE WARD 2(2) TRICHY VS. SHRI. N. CHANDRAN, C-67, 10 TH CROSS WEST EXTENSION, THILLAINAGAR, TRICHY -18. [PAN AADPC 4441N] ( / APPELLANT) ( /RESPONDENT) ! ' # / APPELLANT BY : SHRI. A.V.SREEKANTH, IRS, JCIT. $% ! ' # /RESPONDENT BY : SHRI. S. SRIDHAR, ADVOCATE & ' ' ( /DATE OF HEARING : 21-04-2016 ) ' ' ( /DATE OF PRONOUNCEMENT : 11-05-2016 / O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER: THE APPEAL FILED BY THE REVENUE IS DIRECTED AG AINST ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-2, TIRUCHI RAPALLI, IN ITA NO.127/2014-15/CIT(A)/TRY DT 20.05.2015 FOR THE ASS ESSMENT YEAR 2011- ITA NO.1791/MDS/2015. :- 2 -: 2012 PASSED U/S.143(3) AND 250 OF THE INCOME TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT). 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS:- 2. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDIT ION OF =51,76,378/- MADE BY THE ASSESSING OFFICER BY DISAL LOWING THE CLAIM TOWARDS DEDUCTION U/S.54F MADE BY THE ASSESSEE. 3. THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITIO N TOWARDS THE UNEXPLAINED CASH CREDIT OF =83,303/- MA DE BY THE ASSESSING OFFICER UNDER SECTION 68. 3. THE BRIEF FACTS OF THE CASE THE ASSESSEE IS AN INDI VIDUAL DERIVING INCOME FROM BUSINESS AND INCOME FROM CAPITAL GAINS FILED RETURN OF INCOME ON 28.09.2011 ADMITTING TOTAL INCOME OF =3,7 4,680/- AND WAS PROCESSED U/S.143(1) OF THE ACT ON 08.02.2012. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S.143(2) OF THE ACT WAS ISSUE D. FURTHER NOTICE U/S.142(1) WAS ISSUED CALLING FOR THE BOOKS OF ACCO UNT AND BANK STATEMENTS. IN COMPLIANCE TO ABOVE NOTICES, THE LD . AUTHORISED REPRESENTATIVE OF ASSESSEE APPEARED AND FILED DETAI LS FOR VERIFICATION. THE ASSESSING OFFICER FOUND THAT ASSESSEE HAS SOLD AGRI CULTURAL LANDS AND HOLDING CHITTA AND ADANGAL AND HAS NOT UNDERTAKEN A NY AGRICULTURAL OPERATION AND SOLD THE AGRICULTURAL LAND. FURTHER INVESTED LONG TERM CAPITAL GAINS IN CONSTRUCTION OF RESIDENTIAL HOUSE AT KODAIKANAL AND FILED EVIDENCES. THE ASSESSEE INCURRED COST OF CONSTRUCT ION OF HOUSE INCLUDING LAND AND SUPPORTED WITH VOUCHERS AND BILLS AGGREGAT ING TO =46,30,000/-. ITA NO.1791/MDS/2015. :- 3 -: THE ASSESSING OFFICER VERIFIED CONSTRUCTION AGREEME NT AND TO CONFIRM WHETHER THE AGGREGATE AMOUNT WAS UTILIZED FOR THE CONSTRUCTION OF RESIDENTIAL PROPERTY AND ISSUED SUMMONS U/S.131 OF THE ACT TO CONTRACTOR. THE CONTRACTOR APPEARED AND PRODUCED APPROVED PLAN AND CONFIRMED =46,30,000/- RECEIVED FROM THE ASSESSEE BY CASH A ND CHEQUES. THE ASSESSEE HAS PURCHASED RESIDENTIAL PLOT ON 24.11.20 10 AND UNDERTOOK CONSTRUCTION OF THE RESIDENTIAL PROPERTY. THE LD. ASSESSING OFFICER ON VERIFYING THE MUNICIPAL TAX RECEIPT FOUND IT AT HIG HER RATE AND ALSO MISMATCH OF ADDRESS ON COMPARISON WITH THE APPROVAL PLAN. THE LD. ASSESSING OFFICER FOR CLARIFICATION ON CONSTRUCTION HAS ISSUED SUMMONS U/S.131 OF THE ACT TO THE ASSESSEE ON 25.02.2014. IN COMPLIANCE TO PROCEEDINGS ASSESSEE APPEARED AND EXPLAINED THE ISS UES AT PAGE 3 OF ASSESSING OFFICER ORDER AS UNDER:- I HAVE PURCHASED A PROPERTY AT KODAIKANAL ON 24.1 1.2010 AT KODAI CLOUDS N GARDEN IN PLOT NO.33 EASTERN SIDE. I HAVE ENTERED CONSTRUCTION AGREEMENT WITH RAMAKRISHNAN, CONTRACTO R ON 17 TH OCTOBER, 2010 PAYMENTS FOR CONSTRUCTION HAS BEEN RE LEASED BEFORE AND AFTER CONSTRUCTION AGREEMENT. I CONFIRM THAT I HAVE ONLY ONE PROPERTY AT KODAIKANAL. I HAVE LET OUT TH AT PROPERTY GROUND FLOOR ONLY FOR MY FRIENDS ONLY AND I HAVE RE CEIVED RENT FOR THE PERIOD ENDING 31.03.2013 OF =6,67,500/- DURING THE FINANCIAL YEAR (2012-13). IT IS A SEASONAL INCOME. THE ASSESSING OFFICER BASED ON THE STATEMENT RECORD ED U/SEC. 131 OF THE ACT OF THE CONTRACTOR AND ASSESSEE FOUND THAT TH E ASSESSEE HAS OFFERED =16,67,500/- INCOME FROM SAID PROPERTY IN THE ASSE SSMENT YEAR 2013-14, AS INCOME FROM BUSINESS AND NOT UNDER INCOME FROM HOUSE PROPERTY. ITA NO.1791/MDS/2015. :- 4 -: THE ASSESSING OFFICER UNDER SURMISES BASED ON THE S UBSEQUENT YEARS RETURN OF ASSESSMENT YEAR 2013-14 PRESUMED THE PROP ERTY CONSTRUCTED IS IN NATURE OF BUSINESS ASSET AND NOT A RESIDENTIA L HOUSE AND DENIED THE CLAIM OF EXEMPTION U/S.54F OF THE ACT FOR THE SAID ASSESSMENT YEAR 2011- 2012. THE ONLY GRIEVANCE OF THE ASSESSING OFFICER BEING THE EXEMPTION U/S.54F OF THE ACT IS ELIGIBLE FOR RESIDENTIAL HOU SE BUT NOT FOR RESIDENTIAL HOUSE USED FOR COMMERCIAL PURPOSE. THE LD. ASSESSI NG OFFICER WITH ABOVE FINDINGS HAS CALCULATED LONG TERM CAPITAL GAINS OF =51,76,378/- AND MADE ADDITION WITH OTHER DISALLOWANCES INCLUDING UNEXPLA INED INVESTMENTS U/S.69 ON DEPOSITS IN THE BANK ACCOUNT AND LOANS OBTAINED DURING THE SAID FINANCIAL YEAR. IN THE ASSESSMENT PROCEEDINGS , THE LD. ASSESSING OFFICER TO STRENGTHEN THE DISALLOWANCE RELIED ON TH E REPORT OF INSPECTOR ON HIS VISIT TO PLACE OF PROPERTY AND ADVERTISEMENT IS SUED BY THE ASSESSEE FOR USAGE ON INTERNET. THE LD. ASSESSING OFFICER FOUND THAT ASSESSEE HAS CONSTRUCTED IN THE NATURE OF BUNGALOW AND RESIDENT IAL HOUSE AND NOT COMPLIED THE REQUISITE CONDITIONS OF SEC. 54F AND D ENIED THE CLAIM AND ASSESSED TOTAL INCOME =62,39,315/- AND RAISED DEMAN D. AGGRIEVED BY THE ORDER, THE ASSESSEE FILED AN APPEAL BEFORE COMMISSI ONER OF INCOME TAX (APPEALS). 4. IN THE APPELLATE PROCEEDINGS, THE LD. AUTHORISED RE PRESENTATIVE SUBSTANTIATED THE ARGUMENTS AND FINDINGS OF THE ASS ESSING OFFICER IN THE ASSESSMENT PROCEEDINGS AND ARGUED ON THE GROUNDS RA ISED AGAINST ITA NO.1791/MDS/2015. :- 5 -: DISALLOWANCE AND SUPPORTED WITH WRITTEN SUBMISSIONS AT RELEVANT PAGE 2 OF COMMISSIONER OF INCOME TAX (APPEALS) ORDER AS UND ER:- THE AUTHORISED REPRESENTATIVE FURTHER TOLD THAT T HE APPELLANT PURCHASED A RESIDENTIAL HOUSE PROPERTY CONSTRUCTED OUT OF THE LAND PURCHASED BY THE APPELL ANT WHICH WAS LET OUT BY THE APPELLANT @ 2,000/- PER DAY SEAS ONALLY. THE SAME FACT WAS CONFIRMED FROM THE CASH BOOKS OF HIS BUSINESS. IT WAS ASCERTAINED BY 6,67,000/- AS THE 'INCOME FROM BUSINESS' IN THE P&L ACCOUNT FOR THE YEAR ENDE D ON 31.03.2013 AS SEASONAL INCOME -KODAIKANAL HOUSE AS FURNISHED IN THE RETURN OF INCOME FOR THE A.Y.2013- 14. IT IS NOTED THAT THE APPELLANT HAS NOT MENTIONED IT AS IN COME FROM THE HOUSE PROPERTY AND SO THE ASSESSING OFFICER CON STRUED IT NOT AS A RESIDENTIAL HOUSE AND DECIDED THAT IT DID NOT ENTITLE FOR THE CLAIM OF EXEMPTION U/S.54F AS PER THE IT AC T, 1961. BUT THE APPELLANT'S AUTHORIZED REPRESENTATIVE PRESE NTS THAT FIRSTLY, THE APPELLANT HAS BUILT A RESIDENTIAL HOUS E OUT OF THE SALE PROCEEDS(CAPITAL GAINS) OBTAINED BY HIM DUE TO TRANSFER OF HIS PROPERTY. SECONDLY, THE AUTHORIZED REPRESENT ATIVE SUBMITS THAT SECTION 54F DOES NOT POSTULATE THE SUB SEQUENT USER OF THE ASSET AS A CRITERION FOR DETERMINATION OF ALLOWANCE, I.E. IT DOES NOT WANT SUCH A RESIDENTIA L PROPERTY MUST BE USED ONLY AND SOLELY FOR THE RESIDENTIAL PU RPOSE. THE AUTHORISED REPRESENTATIVE CITED THE DECISIONS O F THE HYDERABAD TRIBUNAL IN K. PRATHIBA VS. INCOME TAX OF FICER 7(3), 44 TAXMAN.COM 282 AND SHRI. SHYAMLAL TANDON V S. INCOME TAX OFFICER 7(4) ITA NO.1774/HYD/12 WHICH SU PPORTS THE VIEW OF THE APPELLANT. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) BASED ON THE SUBMISSIONS AND GROUNDS OF THE ASSESSEE AND SUPPORTING MATERIAL S HAS APPLIED THE RATIONAL THINKING ON DISPUTED ISSUE AND GAVE A CATE GORICAL FINDING IN HIS ORDER AND DIRECTED THE ASSESSING OFFICER TO ALLOW T HE DEDUCTION OBSERVED AT PAGE 5 OF HIS ORDER AS UNDER:- FURTHER ON THIS ISSUE THE APPELLANT SUBMITS THAT THE SUBSEQUENT USER OF THE ASSET IS NOT THE CRITERION F OR DETERMINATION OF ALLOWANCE U/S 54F. THE APPELLANT P LACED HIS RELIANCE ON THE DECISION IN THE CASE OF K.PRATH IBA VS ITO 44 TAXMAN.COM 282 BY THE HYDERABAD TRIBUNAL AND ALS O IN ITA NO.1791/MDS/2015. :- 6 -: THE CASE OF SHRI SHYAMLAL TANDON VS ITO ITA NO. 1774/HYD112. THE RATIOS LAID DOWN IN THESE TWO CASES ARE SIMILAR TO THE FACTS OF THE INSTANT CASE UNDER CONSIDERATION. THE TRIBUNAL HAD CATEGORICALLY HELD THAT THE FACT OF DETERMINING THE ELIGIBILITY IS ONLY TO BE EXAMINED AT THE TIME OF CONSTRUCTION OF THE PROPERTY AND THE SUBSEQUENT USER IS NOT A GROUND FO R DENIAL. IN THE CASE OF THE APPELLANT HE HAD BUILT A HOUSE A T KODAIKANAL AND HE HAD BEEN USING THE SAME FOR HIMSE LF AND DURING THE SEASONS HE HAD LET IT OUT FOR TEMPOR ARY OCCUPATION. THESE PERSONS ALSO HAD USED THE PROPERT Y FOR THEIR RESIDENCE ONLY. THERE IS NO COMMERCIAL ACTIVI TY HAD BEEN CARRIED ON LIKE USING THE PROPERTY AS A SHOP O R GODOWN. DISALLOWANCE ULS 54F CANNOT BE DENIED ON TH E SUBSEQUENT CHANGE IN THE USAGE OF PROPERTY FOR NON RESIDENTIAL USE OR COMMERCIAL USE. ONCE IT IS RECOG NIZED AS RESIDENTIAL PROPERTY CONSTRUCTED OR OBTAINED WITHIN THE STIPULATED PERIOD AS REQUIRED U/S 54F, MERELY BECAUSE OF CHANGE IN THE USE OF SUCH PROPERTY FOR NON RESIDENT IAL PURPOSES, IT CANNOT BE SAID THAT WHAT WAS ACQUIRED BY THE ASSESSEE WAS NOT A RESIDENTIAL PROPERTY. SUBSEQUENT CHANGE IN THE USER OF THE PROPERTY DOES NOT DISENTITLE THE ASSESSEE TO RELIEF U/S 54F OF THE ACT. MERE NON RESIDENTIAL USE SUBSEQUENTLY C OULD NOT RENDER THE PROPERTY INELIGIBLE FOR BENEFIT U/S 54F IF IT IS OTHERWISE A RESIDENTIAL PROPERTY. THIS VIEW HAS BEE N HELD ALSO BY THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF MAHAVIR PRASAD GUPTA VS JCIT (5 SOT 353). RESPECTFU LLY FOLLOWING THE SAID DECISIONS MENTIONED SUPRA THE AS SESSING OFFICER IS DIRECTED TO ALLOW THE DEDUCTION U/S 54F IN THE CASE OF THE APPELLANT. THE APPELLANT SUCCEEDS ON TH IS GROUND OF APPEAL. FURTHER ON THE ISSUE OF UNEXPLAINED CASH CREDIT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ELABORATELY DEALT BASED ON THE SUBMISSIONS OF THE ASSESSEE AND THE FINDINGS OF THE ASSESSING OFFICER AND DELETED THE ADDITION TO THE EXTENT OF =83,303/- AND PARTLY ALLOWED THE G ROUND OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF COMMISSIONER OF INCOME TA X (APPEALS), THE REVENUE HAS ASSAILED AN APPEAL BEFORE THE TRIBUNAL . ITA NO.1791/MDS/2015. :- 7 -: 5. BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE SUB STANTIATED THE ARGUMENTS BASED ON THE FINDINGS OF THE ASSESSIN G OFFICER WERE THE PROPERTY WAS USED FOR COMMERCIAL PURPOSE AND IN THE NATURE OF BUNGLOW AND LET OUT FOR SEASONAL OCCUPATION FOR TOURISTS AT KODAIKANAL AND NOT ELIGIBLE FOR EXEMPTION U/S.54F OF THE ACT. THE LD . COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN DELETING THE ADDI TION WITHOUT CONSIDERING THE FACTS THAT THE ASSESSEE UTILIZED TH E PROPERTY FOR NON RESIDENTIAL PURPOSE AND THE ACTION OF THE COMMISSIO NER OF INCOME TAX (APPEALS) IS BAD IN LAW AND VIOLATION OF CONDITIONS U/S.54F OF THE ACT. THE ACTION OF COMMISSIONER OF INCOME TAX (APPEALS) IN D ELETING THE ADDITION OF =83,303/- IS WITHOUT ANY EVIDENCE AND PRAYED FOR SETTING ASIDE THE COMMISSIONER OF INCOME TAX (APPEALS) ORDER. 6. CONTRA, THE LD. AUTHORISED REPRESENTATIVE RELIED ON THE FINDINGS AND ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S) AND SUPPORTED THE ARGUMENTS WITH JUDICIAL DECISIONS FOR ALLOWABIL ITY OF EXEMPTION U/S54F OF THE ACT. 7. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATE RIAL ON RECORD AND JUDICIAL DECISIONS CITED. THE LD. DEPAR TMENTAL REPRESENTATIVE CONTENTION THAT COMMISSIONER OF INCOME TAX (APPEALS ) HAS ERRED IN ALLOWING THE EXEMPTION U/S.54F OF THE ACT THOUGH T HE ASSESSEE HAS USED THE PROPERTY FOR COMMERCIAL PURPOSE AND THE ASSESSE E IS USING THE ITA NO.1791/MDS/2015. :- 8 -: PROPERTY FOR SEASONAL OCCUPATION FOR TOURISTS AND HAS GIVEN ADVERTISEMENT FOR USAGE ON MEDIA. THE LD. AUTHORISED REPRESENTAT IVE SUBSTANTIATED HIS ARGUMENTS THAT THE PROPERTY CONSTRUCTED IS A RESIDE NTIAL HOUSE AND DUE TO CHANGE IN NATURE OF SUBSEQUENT USAGE CANNOT BE A GR OUND FOR DENIAL OF EXEMPTION U/SEC.54F OF THE ACT. THE HOUSE PROPERTY CONSTRUCTED IS PURELY RESIDENTIAL AND LET OUT ON TEMPORARY OCCUPATION AND USED FOR THE RESIDENCE BY THE ASSESSEE. WE PERUSED THE ASSESSMENT ORDER WERE THE ASSESSING OFFICER HAS SUMMONED THE CONTRACTOR AND HAS RECORD ED STATEMENT ON CONSTRUCTION COST BASED ON CONSTRUCTION AGREEMENT AND APPROVED PLAN WAS PRODUCED IN THE PROCEEDINGS. THE LD. ASSESSING OFFICER HAS VERIFIED THE COPY OF APPROVED PLAN AND CONSTRUCTION OF THE PROPERTY WHICH IS NOT DISPUTED BY THE LD. ASSESSING OFFICER. THE ASSESS EE RELIED ON SANCTIONED PLAN ISSUED BY THE CITY CORPORATION AND CONSTRUCTED THE RESIDENTIAL HOUSE. THE LD. ASSESSING OFFICER HAVING ACCEPTED THE APPRO VED PLAN CANNOT KNOW AGITATE THAT THE PROPERTY IS A COMMERCIAL PROPERTY DUE TO USAGE BY THE OCCUPANTS. THE LD. ASSESSING OFFICER RELIED ON T HE INCOME TAX RETURN FILED FOR THE ASSESSMENT YEAR 2013-14 WERE THE ASSESSEE H AS OFFERED INCOME FROM PROPERTY AS BUSINESS INCOME AS IT WAS LET OUT ON DAILY BASIS. THE FACT THAT THE ASSESSEE HAS CONSTRUCTED THE PROPERTY AND COMPLIED WITH THE PROVISIONS SEC. 54F OF THE ACT AS UNDER:- 54F. (1) [SUBJECT TO THE PROVISIONS OF SUB-SECTION (4), WHERE, IN THE CASE OF AN ASSESSEE BEING AN INDIVIDUAL OR A HINDU UNDIVIDE D FAMILY], THE CAPITAL GAIN ARISES FROM THE TRANSFER OF ANY LONG-TERM CAPI TAL ASSET, NOT BEING A RESIDENTIAL HOUSE (HEREAFTER IN THIS SECTION REFERR ED TO AS THE ORIGINAL ASSET), ITA NO.1791/MDS/2015. :- 9 -: AND THE ASSESSEE HAS, WITHIN A PERIOD OF ONE YEAR B EFORE OR [TWO YEARS] AFTER THE DATE ON WHICH THE TRANSFER TOOK PLACE PURCHASED , OR HAS WITHIN A PERIOD OF THREE YEARS AFTER THAT DATE [ CONSTRUCTED, A RESIDENTIAL HOUSE ] (HEREAFTER IN THIS SECTION REFERRED TO AS THE NEW ASSET), THE CAPITAL GAIN SHALL BE DEALT WITH IN ACCORDANCE WITH THE FOLLOWING PROVISIONS OF THIS SE CTION, THAT IS TO SAY, (A) IF THE COST OF THE NEW ASSET IS NOT LESS THAN THE N ET CONSIDERATION IN RESPECT OF THE ORIGINAL ASSET, THE WHOLE OF SUCH CAPITAL GAIN SHALL NOT BE CHARGED UNDER SECTION 45 ; (B) IF THE COST OF THE NEW ASSET IS LESS THAN THE NET C ONSIDERATION IN RESPECT OF THE ORIGINAL ASSET, SO MUCH OF THE CAPIT AL GAIN AS BEARS TO THE WHOLE OF THE CAPITAL GAIN THE SAME PROPORTIO N AS THE COST OF THE NEW ASSET BEARS TO THE NET CONSIDERATION, SHALL NOT BE CHARGED UNDER SECTION 45 : [ PROVIDED THAT NOTHING CONTAINED IN THIS SUB-SECTION SHALL A PPLY WHERE (A) THE ASSESSEE, (I) OWNS MORE THAN ONE RESIDENTIAL HOUSE, OTHER THA N THE NEW ASSET, ON THE DATE OF TRANSFER OF THE ORIGINAL ASSET; OR (II) PURCHASES ANY RESIDENTIAL HOUSE, OTHER THAN TH E NEW ASSET, WITHIN A PERIOD OF ONE YEAR AFTER THE DATE OF TRANS FER OF THE ORIGINAL ASSET; OR (III) CONSTRUCTS ANY RESIDENTIAL HOUSE, OTHER THAN THE NEW ASSET, WITHIN A PERIOD OF THREE YEARS AFTER THE DATE OF TRANSFER OF THE ORIGINAL ASSET; AND (B) THE INCOME FROM SUCH RESIDENTIAL HOUSE, OTHER T HAN THE ONE RESIDENTIAL HOUSE OWNED ON THE DATE OF TRANSFER OF THE ORIGINAL ASSET, IS CHARGEABLE UNDER THE HEAD INCOME FROM HOUSE PROPERTY.] THE OBSERVATION OF THE LD. ASSESSING OFFICER THAT THE RESIDENTIAL PROPERTY MEANS A HOUSE PROPERTY SHOULD BE USED FOR RESIDENTI AL PURPOSE AND NOT FOR COMMERCIAL PURPOSE CANNOT BE ACCEPTED. THE ASS ESSEE HAS PURCHASED A PLOT AND CONSTRUCTED THE RESIDENTIAL PROPERTY WIT HIN TIME LIMIT ALLOWED AS PER THE PROVISIONS OF SEC. 54F OF THE ACT WHICH IS NOT DISPUTED BY THE ITA NO.1791/MDS/2015. :- 10 -: ASSESSING OFFICER. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS DEALT EXHAUSTIVELY ON THE SUBMISSIONS OF THE ASSESS EE ON THE CONSTRUCTION AND USAGE SUPPORTED THE FACTS WITH JUDICIAL DECISIO N FOR CLAIM OF EXEMPTION U/S.54F OF THE ACT. CONSIDERING THE APPARENT FACTS, PROVISIONS OF LAW, JUDICIAL DECISIONS AND FINDINGS IN APPELLATE PROCEE DINGS, WE ARE NOT INCLINED TO INTERFERE WITH THE ORDER OF COMMISSIONE R OF INCOME TAX (APPEALS) WHO HAS EXPLAINED ELABORATIVELY VIZ-A-VIZ THE EXPLANATIONS OF THE ASSESSEE AND WE UPHOLD THE SAME AND DISMISS THE GRO UND OF THE REVENUE. 8. ON THE ISSUE OF DELETION OF UNEXPLAINED CREDIT =83, 303/-. THE LD. DEPARTMENTAL REPRESENTATIVE ERRED THAT COMMISSIONE R OF INCOME TAX (APPEALS) HAS DELETED THE AMOUNT WITHOUT CONSIDERIN G THE FACTS AND EVIDENCE ON RECORD. 9. THE LD. AUTHORISED REPRESENTATIVE RELIED ON THE FI NDINGS OF THE COMMISSIONER OF INCOME TAX (APPEALS). 10. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATE RIAL ON RECORD. THE LD. DEPARTMENTAL REPRESENTATIVE CONTEN TION THAT THE EVIDENCE AVAILABLE WITH THEM AND THE COMMISSIONER OF INCOME TAX (APPEALS) HAS CONFIRMED THE PARTIAL ADDITION EXCLUDING =83,303/ -. WE ARE OF THE OPINION THAT IF THE DEPARTMENT IS HAVING ANY AUTHE NTIC EVIDENCE THE SAME ITA NO.1791/MDS/2015. :- 11 -: HAS TO BE RELIED IN THE ASSESSMENT PROCEEDINGS OR A PPELLATE PROCEEDINGS. THE COMMISSIONER OF INCOME TAX (APPEALS) GAVE A REA LISTIC FINDINGS ON THIS DISPUTED ISSUE AT PAGE 7 OF HIS ORDER CONFIRM ING THE PARTIAL ADDITION AND DELETING =83,303/-. THEREFORE, WE ARE NOT INCL INED TO INTERFERE WITH THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) O N THIS GROUND AND CONFIRM THE SAME. 11. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED ON WEDNESDAY, THE 11 TH DAY OF MAY, 2016 AT CHENNAI. SD/- SD/- ( . ! ) (A. MOHAN ALANKAMONY) # $% / ACCOUNTANT MEMBER ( & . ' ( ) (G. PAVAN KUMAR) ) $% / JUDICIAL MEMBER *& / CHENNAI + / DATED:11TH MAY, 2016. VENU , ' $'./ 0/' / COPY TO: 1 . ! / APPELLANT 2. $% ! / RESPONDENT 3. 1' () / CIT(A) 4. 1' / CIT 5. /4 5 $'6 / DR 6. 5 7 8 & / GF