ITO, New Delhi V. Mrs. Roshni Darlie Koshy, Delhi

ITA 2356/DEL/2013

• Counselvise Citation: 235620114 RSA 2013
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 22-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMEER SHARMA
• Assessee Lawyers: SEKHON
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: H NEW DELHI BEFORE SHRI I. C. SUDHIR, JUDICIAL MEMBER AND SHRI J. S. REDDY, ACCOUNTANT MEMBER I.T.A. NOS. 2356/DEL/2013 ASSESSMENT YEAR: 2008-09 ITO VS. MRS. ROSHNI DARLIE KOSHY. WARD-36(2), 170 MADHUVAN, ROOM NO. 105, H BLOCK, DELHI-110092 VIKAS BHAWAN, NEW DELHI. PAN:AAAPK7858C (APPELLANT) (RESPONDENT) REVENUE BY : SHRI SAMEER SHARMA, DR. ASSESSEE BY : SHRI M. S. SEKHON, CA. ORDER PER J. S. REDDY, AM : THIS IS AN APPEAL FILED BY THE REVENUE DIRECTED AGA INST THE ORDER OF LD. CIT (A), XXVII, NEW DELHI, DATED 21.01.2013 FOR THE A.Y. 2008-09, ON THE FOLLOWING GROUNDS: 1. THE LEARNED INCOME TAX OFFICER, WARD 36(2) HAS ERRED IN MISINTERPRETING THE PROVISION OF SECTION 54 OF THE ACT TO ERRONEOUSLY OBSERVE THAT SINCE THE INVESTMENT HAS N OT BEEN 2 MADE WITHIN THE SPECIFIED PERIOD, THE ASSESSEE WILL NOT BE ENTITLED TO EXEMPTION UNDER SECTION 54 OF THE ACT P ROMPTING HIM TO OBSERVE FURTHER THAT THE CAPITAL GAIN IN THE INS TANT CASE WILL BE LIABLE TO BE TAXED IN THE YEAR IN WHICH THE DEFA ULT OCCURRED. 2. THAT ORDER OF THE LEARNED ITO IS BAD IN LAW AND ON THE FACTS OF THE CASE. 2. WE HAVE HEARD MR. SAMEER SHARMA, LD. DR ON BEHAL F OF THE REVENUE AND SHRI M. S. SEKHON, THE LD. CA ON BEHALF OF THE ASSESSEE. 3. THE FIRST APPELLATE AUTHORITY AT PARA 7 HOLD AS FOLLOWS: 7. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE APPELLANT, THE OBSERVATIONS MADE BY THE AO IN THE ASSESSMENT ORDER AND THE FACTS OF THE CASE. THERE I S NO DISPUTE REGARDING THE QUANTUM OF THE CAPITAL GAINS AS WORKED OUT BY THE APPELLANT FROM THE SALE OF HER PR OPERTY WHICH IS RS.24,76,889/-. THE ONLY ISSUE INVOLVED IN THIS CASE IS DENIAL OF EXEMPTION U/S 54 OF THE ACT TO TH E APPELLANT ON THE GROUND THAT THE APPELLANT HAD NOT FILED A COPY OF THE REGISTERED DEED OF THE PROPERTY PURCHAS ED BY HER FOR CLAIMING EXEMPTION U/S 54 OF THE ACT. IN TH IS REGARD, IT IS SEEN THAT THE APPELLANT HAD MADE A PA YMENT OF RS.29,89,739/- TO M/S BRIGADE ENTERPRISES TOWARD S COST OF CONSTRUCTION OF FLAT WHICH WAS JOINTLY PURC HASED BY THE APPELLANT WITH HER HUSBAND FROM M/S BRIGADE ENTERPRISES. THE AMOUNT OF RS.29,89,739/- PAID BY T HE APPELLANT WAS MORE THAN THE AMOUNT OF THE CAPITAL G AINS AT RS.24,76,889/-. THE APPELLANT HAD MADE PAYMENT T O 3 M/S BRIGADE ENTERPRISES ON THE VERY NEXT DAY OF THE SALE OF THE PROPERTY I.E., THE PROPERTY WAS SOLD ON 27.0 3.2008 AND THE PAYMENT TO M/S BRIGADE ENTERPRISES WAS MADE BY THE APPELLANT ON 28.03.2008. A COPY OF THE AGREEMEN T TO THIS EFFECT WAS DULY FILED BY THE APPELLANT BEFORE THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. A COPY OF THE REGISTERED DEED OF THE PURCHASED PROPERTY COULD NOT BE FILED BEFORE THE AO BECAUSE THE SAME HAD NOT BE ENTERED INTO TILL THAT TIME AND IT WAS INFORMED TO THE AO THAT THE REGISTERED DEED WOULD BE SIGNED IN THE MON TH OF JANUARY, 2011. A COPY OF THE REGISTERED DEED DULY ENTERED INTO BY THE APPELLANT DATED 05.01.2011 HAS BEEN PLACED ON RECORD. OTHERWISE ALSO JUST BECAUSE THE C OPY OF THE REGISTERED DEED WAS NOT FILED, THE EXEMPTION U/S 54 COULD NOT BE DENIED TO THE APPELLANT IN VIEW OF THE FACT THAT THE COPY OF THE AGREEMENT TO SELL IN RESPECT O F THE RESIDENTIAL PROPERTY WAS DULY FILED BEFORE THE AO A ND PAYMENT FOR PURCHASE OF THIS PROPERTY WAS MADE ON T HE VERY NEXT DAY OF THE SALE OF THE PROPERTY. THEREFOR E, THE AO IS DIRECTED TO ALLOW EXEMPTION U/S 54 OF THE ACT TO THE APPELLANT. 4. WE FIND NO INFIRMITY IN THIS WELL REASONED ORDER . COPY OF THE REGISTERED DEED OF THE PROPERTY PURCHASED COULD NOT BE FILED BEFORE THE AO AS IT WAS NOT AVAILABLE AS ON THE DATE OF PASSING O F THE ASSESSMENT ORDER. THE 4 SUBMISSION OF THE LD. DR ARE DEVOID OF MERIT. IN TH E RESULT THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/11/2013. SD/- SD/- ( I. C. SUDHIR ) (J. S. REDDY) JUDICIAL MEMBER ACCOUNTANT ME MBER DATED: 22/11/2013 *AK VERMA* COPY FORWARDED TO: 1. ASSESSEE 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR