THOMAS MULAYIMKAL , CHENNAI V. ITO,NON CORPORATE WARD 22(5), CHENNAI

ITA 200/CHNY/2022

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 6424 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 24-03-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay; Set aside; Capital Gains
• Section: 54F

Judgement Text

आयकर अपीलीय अिधकरण, ‘बी’ Ɋायपीठ, चेɄई IN THE INCOME-TAX APPELLATE TRIBUNAL ‘B’ BENCH, CHENNAI ŵी वी दुगाŊ राव Ɋाियक सद˟ एवं ŵी जी. मंजुनाथा, लेखा सद˟ के समƗ Before Shri V. Durga Rao, Judicial Member & Shri G. Manjunatha, Accountant Member आयकर अपील सं./I.T.A. No.200/Chny/2022 िनधाŊरण वषŊ/Assessment Years: 2013-14 Shri Thomas Mulayimkal, 6/8, Periyar Street, Plot No. 176, Anna Nagar, Pammal, Chennai 600 075. [PAN:ACIPT2203L] Vs. The Income Tax Officer, Non Corporate Ward 22(5), Tambaram, Chennai 600 045. (अपीलाथŎ/Appellant) (ŮȑथŎ/Respondent) आयकर अपील सं./I.T.A. No.199/Chny/2022 िनधाŊरण वषŊ/Assessment Years: 2013-14 Smt. Lourdes Mary Arulanandam, 6/8, Periyar Street, Plot No. 176, Anna Nagar, Pammal, Chennai 600 075. [PAN:ACIPT2203L] Vs. The Income Tax Officer, Non Corporate Ward 22(5), Tambaram, Chennai 600 045. (अपीलाथŎ/Appellant) (ŮȑथŎ/Respondent) अपीलाथŎ की ओर से / Appellant by : Shri S. Sankarlingam, CIT (Retd.) ŮȑथŎ की ओर से/Respondent by : Shri S. Venkatesh, Addl.CIT सुनवाई की तारीख/ Date of hearing : 30.08.2022 घोषणा की तारीख /Date of Pronouncement : 16.09.2022 आदेश /O R D E R PER V. DURGA RAO, JUDICIAL MEMBER: Both the appeals filed by different assessees (husband & wife) are directed against the order of the ld. Commissioner of Income Tax (Appeals)-10, Chennai both dated 06.12.2018 relevant to the assessment I.T.A. Nos.200 & 199/Chny/22 2 year 2013-14. 2. Both the appeals filed are by the assessees are time barred by 1080 days in filing the appeal before the Tribunal. The assessee Shri Thomas Mulayimkal in I.T.A No. 200/Chny/2022 has filed an affidavit for condonation of delay in filing the appeal. The reasons for the condonation of delay in filing the appeal are as under: “8. The impugned order was received by the assessee on 09.02.2019 and the appeal was to be filed on or before 10.04.2019 whereas the appeal is to be filed on 25.03.2022 with a delay of 1078 days. The assessee underwent CORONARY ARTERY BYPASS GRAFTING X 3 GRAFTS on 26.10.2017 at The Madras Medical Mission – Institute of Cardiac – Vascular Diseases and discharge on 03.11.2017 and advised rest for a period of 3 months. But due to this sudden medical emergency, the family was upset and could not attend to regular work including income tax matters. The suffering continued for a period of 3 years and thereafter due to Covid-19, the assessee could not contact the tax consultants till February, 2022. Only after February, 2022, the assessee could meet the tax consultants and arranged to file this appeal. The delay is neither intentional nor deliberate but due to the circumstances beyond the control of the assessee for the reasons stated above. There is no prejudice caused to the department by admitting this appeal whereas the assessee will be put to loss if the appeal is not admitted. The above circumstances, the Honourable Tribunal may be pleased to admit this appeal after condoning the delay.” 3. Similarly, the assessee Smt. Lourdes Marry Arulanandam in I.T..A No. 199/Chny/2022 has filed an affidavit for condonation of delay in filing the appeal for the following reasons: “8. The impugned order was received by the assessee on 09.02.2019 and the appeal was to be filed on or before 10.04.2019 whereas the appeal is to be filed on 25.03.2022 with a delay of 1078 days. The assessee husband underwent CORONARY ARTERY BYPASS GRAFTING X 3 GRAFTS on 26.10.2017 at The Madras Medical Mission – Institute of Cardiac – Vascular Diseases and discharge on 03.11.2017 and advised rest for a period of 3 months. But due to this sudden medical emergency, the family was upset and I.T.A. Nos.200 & 199/Chny/22 3 could not attend to regular work including income tax matters. The suffering continued for a period of 3 years and thereafter due to Covid-19, the assessee could not contact the tax consultants till February, 2022. Only after February, 2022, the assessee could meet the tax consultants and arranged to file this appeal. The delay is neither intentional nor deliberate but due to the circumstances beyond the control of the assessee for the reasons stated above. There is no prejudice caused to the department by admitting this appeal whereas the assessee will be put to loss if the appeal is not admitted. The above circumstances, the Honourable Tribunal may be pleased to admit this appeal after condoning the delay.” 4. By filing various reports including Cardiac Catheterisation Report in respect of Coronary Artery Bypass Grafting x 3 Grafts of the assessee Shri Thomas Mulayimkal, the ld. Counsel for the assessee has submitted that after bypass surgery, the assessee was continuously suffering for a period of three years and thereafter due to Covid-19, the assessee could not contact the tax consultant and only after February, 2022, the assessee could meet the tax consultant and filed the appeal. It was further submission that due to this sudden medical emergency of the assessee, the entire family was upset and could not attend to regular work including income tax matters. The assessee Smt. Lourdes Marry Arulanandam, wife of the assessee was very much attending to the ailing husband. The ld. Counsel for the assessee has submitted that the delay is in filing both the appeals is neither intentional nor deliberate but doe the circumstances beyond the control of the assessee for the reasons stated in the affidavit and prayed for condoning the delay and to admit the appeals for adjudication. I.T.A. Nos.200 & 199/Chny/22 4 5. We have gone through the affidavits filed by the assessees and also medical certificates and find that there is sufficient cause for the assessees in filing the appeals with delay. Therefore, in our opinion, it is a fit case to condone the delay and accordingly, the delay is condoned and admitted the appeals for adjudication. 6. Facts are, in brief, that the assessee and his wife are having a vacant land at Velachery and sold it on 15.03.2013 vide document No. 1614 for a total sale consideration of ₹.3,43,98,000/-. The assessee had his wife are having equal shares in the property. The sale consideration received by the assessee as well as his wife was deposited in the capital gains account jointly. Subsequently, the assessee has purchased a residential house at Kothamangalam, Ernakulam District, Kerala out of his 50% share of long term capital gains at ₹.1,68,00,423/- vide document No. 2443/2013 dated 10.05.2013. The above purchase was made by the assessee as well as his wife by contributing 50% each. The assessee’s wife Smt. Lourdes Marry Arulanandam also purchased a residential house at No. 2, Kambar Street, Alandur, Chennai 16 vide document No. 2560/13 on 10.07.2013 jointly along with assessee at a total cost of ₹.1,48,50,000/- in that assessee’s share is 50% i.e., ₹.74,25,000/-. The assessee has claimed deduction under section 54F of the Act on the sale I.T.A. Nos.200 & 199/Chny/22 5 consideration received of ₹.1,68,00,423/-. The Assessing Officer denied the claim of the assessee on the ground that the assessee and his wife already having one house and the assessee is having 50% share in Kerala property and 50% share in Alandur property. Threfore, the assessee is not entitled to claim deduction under section 54F of the Act having more than 2 residential houses. On appeal, the ld. CIT(A) confirmed the orders of the Assessing Officer in respect of both the assessees. 7. On being aggrieved, both the assessees are in appeal before the Tribunal. The ld. Counsel for the assessee has submitted that the assessee sold the property jointly along with his wife and both of them purchased two different houses having 50% shares each and therefore submitted that the assessee and his wife are having one-one house each. Therefore, both the assessees are entitled for the benefit of deduction under section 54F of the Act. 8. On the other hand, the ld. DR strongly supported the orders passed by the Assessing Officer and the ld. CIT(A). 9. We have heard both the sides, perused the materials available on record and gone through the orders of authorities below. The assessee I.T.A. Nos.200 & 199/Chny/22 6 and his wife are having a vacant land with equal share and the same was sold and deposited the sale consideration jointly in the capital gains account. Subsequently, the assessee purchased a residential house at Kothamangalam, Ernakulam District, Kerala with 50% share and remaining 50%, his wife is the share holder. The assessee’s wife also purchased house property at Alandur with 50% share of each. The case of the assessee is that after sale of the property, the assessee has purchase a residential property at Kerala. The assessee has acquired 50% share on the property purchased at Kerala. The Assessing Officer cannot consider that having a right of property at 50% is full ownership. The ownership is restricted to 50% only. In the same way, the assessee’s wife also purchased a property at Alandur with 50% of her share and 50% husband’s share. Therefore, the wife cannot be said that she is having full ownership. Practically speaking, both the assessee and his wife are entitled by two separate houses for entitlement of claiming deduction under section 54F of the Act. Instead of that they have purchased twpo properties with 50% equal shares. Therefore, the assessee and his wife purchase two different houses having ownership in two houses and therefore, they are entitled to claim deduction under section 54F of the Act. In view of the above, the order passed by the Assessing Officer and confirmed by the ld. CIT(A) in rejecting the claim of deduction under I.T.A. Nos.200 & 199/Chny/22 7 section 54F of the Act is not correct. Accordingly, the order of the ld. CIT(A) in both the assessee’s cases are set aside and the ground raised by the assessees are allowed. 10. In the result, both the appeals filed by the assessees are allowed. Order pronounced on 16 th September, 2022 at Chennai. Sd/- Sd/- (G. MANJUNATHA) ACCOUNTANT MEMBER (V. DURGA RAO) JUDICIAL MEMBER Chennai, Dated, 16.09.2022 Vm/- आदेश की Ůितिलिप अŤेिषत/Copy to: 1. अपीलाथŎ/Appellant, 2.ŮȑथŎ/ Respondent, 3. आयकर आयुƅ (अपील)/CIT(A), 4. आयकर आयुƅ/CIT, 5. िवभागीय Ůितिनिध/DR & 6. गाडŊ फाईल/GF.