Shri Dashrathbhai K. Dodiya, Surendranagar V. The Dy. Commr. of Income Tax, Surendranagar Circle, Surendranagar

ITA 247/RJT/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6726 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 01-12-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 03-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: USHA N SHROTE
• Assessee Lawyers: DM RINDANI
• Keywords: Valuation report
• Section: 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH E-COURT AT AHMEDABAD] BEFORE SHRI PRAMOD KUMAR ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ ITA NO.247/RJT/2015 / A.Y. 2009-10 SHRI DASHRATHBHAI K DODIYA, KHARVANI POLE, WADHWAN CITY, DIST. SURRENDRANAGAR-363001. PAN : AFXPD7560 E VS DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE SURENDRANAGAR (APPELLANT) (RESPONDENT) BY APPELLANT : SHRI D.M. RINDANI, A.R BY RESPONDENT : SMT USHA N. SHROTE, SR DR / DATE OF HEARING : 01/12/2016 /DATE OF PRONOUNCEMENT: 03/02/2017 / O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE FOR THE ASSESSMEN T YEAR 2009-10 AGAINST THE ORDER OF LEARNED CIT(A)-7, CIRCLE, SURRENDRANAGAR THE GROUNDS RAISED BY ASSESSEE ARE AS FOLLOWS:- 1.THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -7, AHMEDABAD ERRED CONFIRMING ACTION OF THE ASSESSING OFFICER IN DISALLOWING RS.20,45,434/-U/S 54 OF THE ACT AND THEREBY TREATING RS.28,31,4387- ON SALE OF NON-AGRICULTURAL LAND AGAINST THE APPELLANT. 2.THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 7, AHMEDABAD ERRED IN NOT TAKING INTO DUE CONSIDERATION THE REJOINDER OF THE REMAND REPORT SUBMITTED BY THE APPELLANT. ITA NO.247/RJT/2015 A.Y. 2009-10 - 2 - 3.THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-7, AHMEDABAD FAILED TO APPRECIATE AND CONSIDER THAT THE ASSESSING OFFICER ERRED IS NOT GRANTING PROPER OPPORTUNITY TO THE APPELLANT TO SUBMIT EVIDENCE DURING REMAND PROCEEDINGS AND] HAS ALSO FAILED TO CARRY OUT PROPER INQUIRIES DURING REMAND. 4.THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 7, AHMEDABAD FAILED TO CONSIDER AND APPRECIATE THAT THE RESULTS OF LOCAL INQUIRIES WERE NOT MADE AVAILABLE BY THE A.O. TO THE APPELLANT. 5. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 7, AHMEDABAD FAILED TO APPRECIATE THAT THE AO HAS NOT STATED IN REMAND REPORT THAT HE VISITED THE VERY PLOT OR THE HOUSE IN QUESTION. 2. BRIEF FACTS OF THE CASE ARE ON VERIFICATION OF THE RET URN OF INCOME AND THE STATEMENT OF TOTAL INCOME, IT IS NOTICED THAT THE ASSESS EE HAS SHOWN THE LONG TERM CAPITAL GAIN OF RS.28,31,438/- ON SALE OF JOINT PROPERTY IN THE NAME OF SHRI DASHRATH KARIUBHAI DODIYA, AND HIS BROTHER SHRI HARIBHAI KANUBHAI DOD IYA. THE PROPERTY WHICH IS SOLD OUT BY THE ASSESSEE IS SITUATED AT REVEN UE SURVEY NO. 2246/2, PAIKI-1 AT WADHWAN. THE SALES CONSIDERATION OF THE SALE OF LAND IS R S. 61,04,816/- OUT OF WHICH THE HALF OF THE SHARE OF SHRI DASHRATHBHAI KANUBHAI DODIYA, THE ASSESSEE IS RS. 30,52,408/-. 3. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS C LAIMED DEDUCTION U/S. 54F OF THE I.T. ACT AGAINST THE CAPITA! GAIN ARISES FROM NON-AGRICULTURAL LAND AFTER CONSTRUCTION OF THE RESIDENTIAL HOUSE WITHIN A PERIOD OF THREE YEARS OF SALES CONSIDERATION. AFTER CLAIMING THE DEDUCTION 54F OF THE ACT, THE ASSESSEE HAS SHOWN THE LONG TERM CAPITA! OF RS.7,86,004/- AND PAY THE TAX THERE UPON OF RS. 1,57,201/-. 4. AT THE TIME OF ASSESSMENT PROCEEDINGS, THE ASSESSEE W AS ASKED TO PRODUCE THE DETAILS OF THE CONSTRUCTION OF A RESIDENTIAL HOUS E WITH DETAILS SUCH AS CERTIFIED COPY OF THE PLAN APPROVED BY THE MUNICIPALITY, WADHWAN FORTHE CONSTR UCTION OF THE HOUSE, EXPENDITURE MADE ON THE CONSTRUCTION HOUSE PR OPERTY WITH BILLS/VOUCHERS FOR VERIFICATION, COPY OF STATEMENT OF HOUSE TAX PAID DURING THE F.Y. 2009-10, 2008- 09 AND 2007-08 AND THE OF COMPLETION CERTIFICATE ISSUED BY TH E MUNICIPALITY, WADHWAN, BUT, ASSESSEE COULD NOT PRODUCED DOCUMENTS COPI ES OF LONG TERM ITA NO.247/RJT/2015 A.Y. 2009-10 - 3 - CAPITA! GAIN FAVOUR OF SHRI DASHRATHBHAI KANUBHAI DODIYA AN D COPY OF THE RENOVATION OF GROUND FLOOR AND PROPOSED 1 ST FLOOR PLAN PREPARED BY SHRI MANOJ SHA, CIVIL ENGINEER AND THE EXTRACT OF THE PROPERTY CARD F ROM THE CITY SURVEY WADHWAN AND VALUATION REPORT OF SHRI MANOJ SHAH FOR THE ESTIMATE COST OF CONSTRUCTION OF RS. 20,42,345/-. THE ASSESSEE DID NOT PRODUCE DETAILS REGARDING THE MATERIAL PURCHASED FOR THE CONSTRUCTION OF HE WE!! AS THE PAYMENT MADE TO THE CONTRACTOR AND CIVIL ENGINEER. 5. AFTER NECESSARY INQUIRIES FROM THE MUNICIPALITY, WADHW AN. IN HIS REPLY MUNICIPALITY, WADHWAN HAS STATED IN ITS LETTER DATED 29.11.2011 THAT 'SHRI DASHRATHBHAI KANUBHAI DODIYA DID NOT PRODUCE ANY CO PY OF PLAN FOR THE CONSTRUCTION OF HOUSE AT SURVEY NO. 3249, 3250 SIT NO. 118 AND THIS OFFICE DID NOT ALSO APPROVE ANY PLAN FOR THE CONSTRUCTION OF HOUSE IN FAVOUR OF SHRI DASHRATHBHAI KANUBHAI DODIYA'. THE MUNICIPALITY, WADHWAN ALSO SENT THE COPY OF DEMAND BIL L FOR THE HOUSE TAX OF THE PERIOD F.Y. 2008-09, 2009-10 AND 2010-11 IN FAVOU R OF SHRI KANUBHAI LAGHRABHAI DODIYA THE FATHER OF THE ASSESSEE. AS PE R THE COPY OF THE PROPERTY CARD OF CITY SURVEY, WADHWAN ON WHICH THE ASSESS EE CLAIMED THAT A CONSTRUCTION HAS BEEN CARRIED OUT AT SURVEY NO. 3249, 3250 SI T NO. 118, THE SAID PROPERTY WAS OWNED BY SHRI KANUBHAI LAGHRABHAI DODIYA DURING THE F.Y. 2008 -09. 6. THE ASSESSING OFFICER DID NOT FIND CLAIMED OF THE AS SESSEE MADE U/S.54F OF THE ACT WAS NOT ALLOWABLE AS ASSESSEE DID NOT FULFILL TH E CONDITIONS OF NEW HOUSE PROPERTY AND RS.28,61,438 ADDED TO THE INCOME OF THE ASSESSEE AG AINT SAID ORDER. ASSESSEE PREFERRED STATUTORY APPEAL BEFORE THE LEARNED CIT(A) WHO DISMISSED APPEAL OF THE ASSESSEE GONE THROUGH THE IMPUGNED ORDER HEARD BO TH THE PARTY. 7. BEFORE US ASSESSEE FILED PAPER BOOKS CONTAINING 82 PAGES INCLUDED FIGURES OF NEW HOUSES CONSTRUCTED ON THE PLOT OF ASSESSEE. ASSES SEE ALSO STATED THAT AUTHORITIES BELOW DID NOT CONSIDERED DOCUMENTS FILED BEFORE THE LOWER AUTHORITIES, THEREFORE, IN THE INTEREST OF JUSTICE WE REMAND THIS MATTER BACK TO THE FILE OF CIT(A) WHO WILL SEEK HELP FROM TECHNICAL PERSON AS WELL AS DVO TO DECIDE A F RESH. THEREFORE, ORDER OF THE CIT(A) IS SET ASIDE. ITA NO.247/RJT/2015 A.Y. 2009-10 - 4 - 8. IN THIS RESULT APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL P URPOSE. ORDER PRONOUNCED IN THE COURT ON 3 RD FEBRUARY , 2017 AT AHMEDABAD. SD/- SD/- (PRAMOD KUMAR) (MAHAVI R PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER TRUE COPY AHMEDABAD; DATED 03 /02/2017 MANISH / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. #$#% ' ' & / CONCERNED CIT 4. ' ' & ( ) / THE CIT(A) 5. )*+' % , ' ' % , -.$ / DR, ITAT, AHMEDABAD 6. +/ 0 / GUARD FILE. TRUE COPY / BY ORDER, / (DY./ASSTT.REGISTRAR) !', $% / ITAT, AHMEDABAD