Ravinder Kumar, Meerut Cantt. V. ITO, Ward-2(2), Meerut

ITA 2265/DEL/2023

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 121453 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-11-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-11-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 09-08-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BALDEV SINGH NEGI
• Keywords: Set aside
• Section: 54B; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘SMC’, NEW DELHI BEFORE SH. SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA No.2265/DEL/2023 (Assessment Year : 2011-12) Ravinder Kumar C/o. M/s. Kartar Singh & Co., 86, Bank Street, Meerut Uttar Prades – 250 001 PAN No. AMCPK 8771 E Vs. ITO Ward – 2(2) Meerut (APPELLANT) (RESPONDENT) Assessee by Shri R. P. Narang, Adv. Revenue by Shri Baldev Singh Negi, Sr. D.R. Date of hearing: 02.11.2023 Date of Pronouncement: 08.11.2023 PER SHAMIM YAHYA, AM : This appeal filed by the assessee is directed against the order of Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC)-Delhi dated 13.06.2023 pertaining to Assessment Year 2011-12. 2. The grounds of appeal filed by assessee, which reads as under: 1. “That the ld. Commissioner of Income Tax (Appeals) is erred in law and otherwise on facts and circumstances of the case while holding and denying to allow benefit of section 54B being the entire consideration received in sale of agricultural land (original assets) and invested the same in purchase of another agriculture land, certainly in the name of assessee's spouse whereas section 54B does not debar the 'Assessee/Appellant' to not to purchase the property in name of any of his/her family member. The ld. CIT (Appeals) did not appreciate the facts the spouse of assessee is an illiterate lady had no income and it is established facts the land was purchased only out of fund received on sale of original assets. ITA No.2265/Del/2023 Ravinder Kumar vs. ITO 2 2. That the Ld. CIT (Appeals) is erred in law and on facts while not relied upon the case law duly mentioned in the appellate order and intern took re-course of five cases those are specially not matched with facts and circumstances of our case even one or two are favouring us. In view of the above, the order so passed by him liable to be quashed /reverse and appeal may be allowed. 3. The Appellant/ Assessee craves leave to take additional grounds of appeal before or at the time of hearing of the appeal and/or modify any of the above grounds.” 3. Brief facts of the case are that in this case, the assessee has sold agricultural land wherein Long Term Capital Gain (LTCG) came to Rs.12,78,456/-. Assessee claimed that he has purchased land and under section 54B, the Long Term Capital Gain is to be exempt. However, the AO denied the same as he noted that the said land is purchased in the wife’s name. Hence, the AO denied the claim of deduction under section 54B of the Act. 4. Against the above order, assessee appealed before the CIT(A). The learned CIT(A) referred to several case laws and confirmed the order of AO. Against this, assessee is in appeal before the ITAT. 5. At the outset, the learned Counsel for the assessee referred the decision of Ashok Kumar vs. ITO in ITA No.7460/Del/2018 for A.Y. 2009-10 vide order dated 28.12.2022. 6. Learned DR on the other hand, referred to the dismissal of SLP by Hon’ble Supreme Court in the case of Bahadur Singh vs. CIT(A) [2023] 154 ITA No.2265/Del/2023 Ravinder Kumar vs. ITO 3 taxmann.com 457 (SC) wherein the Supreme Court has dismissed the SLP against the order of Punjab and Haryana High Court, wherein purchase of agriculture land in the name of assessee’s wife was not to be allowed under section 54B relief to assessee. 7. We have heard both the parties and perused the material on record. We note that ITAT in the case of Ashok Kumar vs. ITO (supra) has held as under: “6. Before me, learned counsel appearing for the assessee submitted that investment in purchase of agricultural land in the name of wife would also be eligible for deduction under Section 54B of the Act. In support of such contention, learned counsel for the assessee relied upon the following decisions: 1. Laxmi Narayan vs. CIT, (2018) 402 ITR 0117, High Court of Rajasthan; 2. CIT vs. Kamal Wahal, (2013) 351 ITR 0004, High Court of Delhi; 3. CIT vs. V. Natarajan, (2006) 287 ITR 0271m High Court of Madras; & 4. CIT vs. Ravinder Kumar Arora, (2012) 342 ITR 0038, High Court of Delhi. 7. Learned Departmental Representative strongly relied upon the observations of the assessee. 8. I have considered rival submissions in the light of decisions relied upon and perused the material available on record. 9. The short issue arising for consideration before me is whether the assessee is eligible to claim deduction under Section 54B of the Act. The factual aspect relating to this issue remains undisputed. Therefore, there is no need to deliberate further on facts. The only reason for which learned Commissioner (Appeals) has denied assessee’s claim of deduction under Section 54B of the Act is because the agricultural land in which the capital gain was invested was purchased in the name of assessee’s wife. This, in my view, is unsustainable. In the decisions cited before me, various Hon'ble High Courts including the Hon'ble Delhi High Court have clearly and categorically held that deduction under Section 54B/54F of ITA No.2265/Del/2023 Ravinder Kumar vs. ITO 4 the Act is available in cases where investments are made in property purchased in the name of wife. Therefore, following the ratio laid down in these decisions, I hold that the assessee is eligible for deduction under Section 54B of the Act. Accordingly, I direct the Assessing Officer to allow deduction under Section 54B of the Act. 10. In the result, the appeal is partly allowed.” 8. We further note that in the decision relied upon by the Learned Departmental Representative, it was a dismissal of SLP simpliciter by Hon’ble Apex Court against the decision of Hon’ble Punjab & Haryana High Court. We note that dismissal of SLP simpliciter by Hon’ble Supreme Court does not merge the order of Hon’ble High Court with that of Hon’ble Supreme Court. We note that there is no jurisdictional High Court decision on this issue. Further, in case of conflicting, Hon’ble High Court decision one in favour of assessee has to be adopted as per Hon’ble Supreme Court decision in vegetable products. Accordingly, we follow the precedent relied upon by the assessee which also draws support from Hon’ble High Court decisions referred therein. Hence, we set aside the order of the Revenue authorities and decide the issue in favour of the assessee. 9. In the result, the appeal of the assessee stands allowed. Order pronounced in the open court on 08.11.2023 Sd/- Sd/- (KUL BHARAT) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Date:- 08.11.2023 Priti Yadav, Sr. PS* ITA No.2265/Del/2023 Ravinder Kumar vs. ITO 5 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI