Shri Navinbhai P. Patel, Vadodara V. The Deputy Commissioner of Income Tax, Circle-1(2), Baroda

ITA 24/AHD/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9845 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 02-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT P JAIN
• Assessee Lawyers: KAMLESH N BHATT
• Keywords: Set aside
• Section: 54F; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) ITA. NO: 24/AHD/2017 (ASSESSMENT YEAR: 2012-13) SHRI NAVINBHAI P. PATEL A- 35, PRAMUKH SWAMI VIHAR SOC., NEAR AKSHAR CHOWK, OLD PADRA ROAD, VADODARA-390 020 V/S DCIT CIRCLE-1(3), VADODARA (APPELLANT) (RESPONDENT) PAN: AMFPP1546H APPELLANT BY : SHRI KAMLESH N. BHATT, AR RESPONDENT BY : SHRI LALIT P. JAIN, SR. D.R. ( )/ ORDER DATE OF HEARING : 12 -02-201 9 DATE OF PRONOUNCEMENT : 07-05-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. CIT(A)-IV, AHMEDABAD DATED 21.09.2016 PERTAINING TO A.Y. 2015-16 AND FOLLOWING GROUNDS HAVE BEEN TAKEN: ITA NO. 24/A HD/2017 . A.Y. 2012- 13 2 1. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) OUGHT TO HAVE DIRECTED THE LD. A. O. TO ASSESS THE INCOME OF CAPITAL GAIN IN THE YEAR OF IT'S TRANSFER AND NOT IN THE YEAR IN WHICH THE DEVELOPER AGREEMENT WAS EXECUTED AND HENCE YOUR PETITIONER PRAYS THAT THE LD. A. O. BE D IRECTED TO TAX THE INCOME IN THE YEAR IN WHICH TRANSFER TOOK PLACE. 2. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE ALLOWED THE EXEMPTION U/S. 54 F OF THE INCOME TAX ACT, 1961 IN RESPECT OF THE INVESTMENT MADE BY THE APPELLANT IN THE PURCHAS E OF NEW RESIDENTIAL UNIT AND HENCE YOUR PETITIONER PRAYS THAT THE LD. A. O. BE D IRECTED TO ALLOW THE EXEMPTION U/S. 54 F AS CLAIMED BY THE APPELLANT. 2. FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIV IDUAL HAVING INCOME OF REMUNERATION AND INTEREST FROM THE PARTNERSHIP FIRM IN WHICH HE IS PARTNER AND ALSO HAVING INTEREST AND OTHER INCOME. DURING THE Y EAR UNDER CONSIDERATION, ASSESSEE HAS SOLD HIS ANCESTRAL LAND AND DECLARED T HE CAPITAL GAIN ON IT. AND AS PER A.O. CAPITAL GAIN TO THE EXTENT OF RS. 64,29,98 9/- ARISING ON SALE OF THE SAID IMMOVABLE PROPERTY WAS ASSESSABLE IN THE HANDS OF T HE ASSESSEE. IN THE RETURN OF INCOME FILED BY THE ASSESSEE ON 09.03.2013, THE ASSESSEE HAS DECLARED LONG TERM CAPITAL GAIN OF RS. 8,61,660/- AND ASSESSEE HA S CLAIMED EXEMPTION U/S. 54F OF THE ACT AMOUNTING TO RS. 50,80,583/-. 3. IN REPLY TO THE NOTICE, ASSESSEE SUBMITTED THAT HE HAS ENTERED INTO AN AGREEMENT FOR DEVELOPMENT OF LAND AND THEREAFTER ASSESSEE HAS BOOKED NEW HOUSE WITH P.S. VILLA FOR RS. 5,36,000/- AND ALLOTMENT LETTER DATED 1 ST FEBRUARY, 2012 WAS ISSUED BY THE DEVELOPER. AND FURTHER STATED THAT A SSESSEE HAS ALREADY GIVEN AN AMOUNT OF RS. 9,55,000/- UP TO 31 ST MARCH, 2013 TOWARDS COST OF CONSTRUCTION TO THE DEVELOPER AND HE HAS ALSO PAID RS. 13,00,000 /- AND RS. 5,50,000/- IN THE ITA NO. 24/A HD/2017 . A.Y. 2012- 13 3 FINANCIAL YEAR 2013-14 AND IN FINANCIAL YEAR 2014-1 5 AND ASSESSEE CLAIMED DEDUCTION UNDER 54F. 4. ON THE OTHER HAND, LD. A.O. CONTENTION WAS THAT ASS ESSEE HAS NOT DEPOSITED AMOUNT OF CAPITAL GAIN ACCOUNT BEFORE THE DUE DATE AND ASSESSEE HAS NOT PURCHASED OR CONSTRUCTED NEW HOUSE WITHIN TWO YEARS FROM THE TRANSFER OF ORIGINAL ASSETS AND DISALLOWED THE CLAIM OF THE ASS ESSEE AND MADE ADDITION OF RS. 52,13,133/-. 5. AGAINST THE SAID ORDER, ASSESSEE PREFERRED FIRST ST ATUTORY APPEAL BEFORE THE LD. CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE. 6. NOW, ASSESSEE HAS COME BEFORE US. 7. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMPUGN ED ORDER. IN THIS CASE, ASSETS IN QUESTION IS INHERITED ONE AND WAS OWNED B Y PREVIOUS OWNER FROM WHOM IT WAS INHERITED OWNED IT MUCH PRIOR TO 01.04. 1981. ASSESSEE MADE AN AGREEMENT WITH DEVELOPER ON 17.09.2011 AS AND WHEN PROPERTY IS TO BE DEVELOPED AND TO BE SOLD AT THAT POINT OF TIME CONS IDERATION OF RS. 601 PER SQUARE FEET TO BE PAID TO THE ASSESSEE. WITHOUT THE AFORESAID PAYMENT, THE DEVELOPER WILL NOT BE ENTITLED TO GIVE POSSESSION O F A FLAT TO ANY BUYERS. 8. IN SUPPORT OF ITS CONTENTION, ASSESSEE HAS FILED SO ME WORKING BEFORE US WITH REGARD TO PAYMENT BOOKED BY THE DEVELOPER AND PAYME NT RECEIVED BY THE ASSESSEE. THUS, IN THE INTEREST OF JUSTICE, WE SET ASIDE THIS MATTER BACK TO FILE OF THE LD. CIT(A) WHO WILL GO THROUGH ALL THE WORKING AND EVIDENCES ON WHICH ASSESSEE SEEKS TO RELY UPON AND AN OPPORTUNITY OF B EING HEARD TO BE GIVEN BY ITA NO. 24/A HD/2017 . A.Y. 2012- 13 4 THE LD. CIT(A) TO THE ASSESSEE AND THEREAFTER LD. C IT(A) WILL DECIDE A MATTER AFRESH AS PER PROVISION OF LAW. 9. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 07- 05- 2019 SD/- SD/- (PRADIP KUMAR KEDIA) (MAHAVIR PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 07/05/2019 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD