ITO, Coimbatore V. D.Vijaya, Coimbatore

ITA 256/CHNY/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6236 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 09-06-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 03-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N MADHAVAN
• Assessee Lawyers: N SUBRAMANIAN ITP
• Section: 148; 54

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI . , . . , ! ' [BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMB ER AND SHRI S. S. GODARA, JUDICIAL MEMBER] ./ I.T.A.NO.256/MDS/2014 & C.O.NO.29/MDS/2014 / ASSESSMENT YEAR : 2008-09 THE INCOME TAX OFFICER WARD III(3) COIMBATORE VS. SMT. D. VIJAYA OLD NO.372, NEW NO.50 LIGHT HOSUE ROAD COIMBATORE 641 001 [PAN AKEPV 8098D ] ( #$ / APPELLANT) (RESPONDENT/CROSS OBJECTOR) / APPELLANT BY : SHRI N. MADHAVAN, JCIT /RESPONDENT BY : SHRI N.SUBRAMANIAN, ITP / DATE OF HEARING : 09-06-2014 ! / DATE OF PRONOUNCEMENT : 13-06-2014 % / O R D E R PER S.S.GODARA, JUDICIAL MEMBER THIS REVENUES APPEAL AND ASSESSEES CROSS OBJECT IONS FOR ASSESSMENT YEAR 2008-09, ARISE FROM ORDER OF THE CO MMISSIONER OF INCOME-TAX(APPEALS)-I COIMBATORE, DATED 13.11.2013 PASSED IN I.T.A.NO.256/14 CO NO.29/14 :- 2 -: I.T.A.NO. 404/11-12 IN PROCEEDINGS UNDER SECTION 1 43(3) R.W.S 147 OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT). 2. THE SOLE SUBSTANTIVE GROUND RAISED IN THE APPEAL CH ALLENGES THE CIT(A)S ORDER HOLDING THE ASSESSEE ENTITLED F OR SECTION 54 EXEMPTION. IN THE COURSE OF HEARING, THE REVENUE C ONTENDS THAT SINCE THE ASSESSEE HAD INVESTED ENTIRE CAPITAL GAINS OF ` 22,72,180/- FOR CONSTRUCTION OF A RESIDENTIAL HOUSE IN HER HUSBAND S NAME, THE CIT(A)S ORDER ALLOWING HER THE AFORESAID RELIEF IS NOT SUSTAINABLE IN THE EYES OF LAW. IT IS ALSO CONTENDED THAT THE ASSESS EES HUSBAND HAD NOWHERE DISCLOSED CONSTRUCTION OF THE AFORESAID HOU SE IN HIS INCOME TAX RETURN. PER REVENUE, THIS RENDERS THE ASSESSE ES ENTIRE VERSION AS DOUBTFUL. SO, REVIVAL OF THE IMPUGNED DEMAND OF ` 8,66,670/- IS PRAYED FOR. 3. THE ASSESSEE REITERATES HER PLEADINGS IN THE CROSS OBJECTIONS, SUPPORTS THE CIT(A)S ORDER UNDER CHALL ENGE AND PRAYS FOR REJECTION OF THE APPEAL. 4. THE ASSESSEE; AN INDIVIDUAL, IS WIFE OF SHRI R. DEVARAJAN. ON 30.11.2007, SHE ALONGWITH HER BROTHERS HAD SOLD A PROPERTY AT NEW DOOR NO.50, LIGHT HOUSE ROAD, COIMBATORE. HER SHARE OF CONSIDERATION READ ` 23.25 LAKHS. AT THE FIRST INSTANCE, SHE HAD NOT F ILED HER RETURN. I.T.A.NO.256/14 CO NO.29/14 :- 3 -: THROUGH INVESTIGATIONS, THE ASSESSING OFFICER CAME TO KNOW ABOUT THE LONG TERM CAPITAL GAINS OF ` 22,72,180/- ARISING FROM THE AFORESAID SALE TRANSACTION. SO, HE ISSUED SECTION 148 NOTICE DATE D 4.10.2010. ON 4.3.2011, THE ASSESSEE FILED HER RETURN ADMITTING TOTAL LOSS OF ` 3,87,145/-. IN COURSE OF SCRUTINY, IT TRANSPIRED THAT SHE HAD INVESTED ENTIRE CAPITAL GAINS OF ` 22,72,180/- FOR CONSTRUCTION OF A NEW RESIDENTIAL HOUSE BEARING DOOR NO.372, LIGHT HOUSE ROAD, POOMARKET, COIMBATORE, IN HER HUSBANDS NAME. PER ASSESSING O FFICER, THIS RE- INVESTMENT ITSELF DISENTITLED THE ASSESSEE FOR C LAIMING EXEMPTION U/S 54. THEREFORE, HE DISALLOWED THE CLAIM AND RAISED IMPUGNED DEMAND OF ` 8,66,670/-. 5. IN LOWER APPELLATE ORDER, THE CIT(A) HAS FOLLOWED T HE CASE LAW OF HON'BLE JURISDICTIONAL HIGH COURT CIT VS V. NATARAJAN, 287 ITR 271 AND ACCEPTED THE ASSESSEES ARGUMENTS. THIS L EAVES THE REVENUE AGGRIEVED. 6. WE HAVE HEARD BOTH PARTIES AND GONE THROUGH THE CAS E FILE. THE REVENUE HAS RAISED TWO FOLDED ARGUMENTS. ONE I S THAT THE ASSESSEE OUGHT TO HAVE INVESTED THE CAPITAL GAINS F OR CONSTRUCTION OF THE RESIDENTIAL HOUSE IN HER OWN NAME INSTEAD OF HE R HUSBANDS. THE SECOND CONTENTION IS THAT SHRI R. DEVARAJAN HAD NOT DISCLOSED I.T.A.NO.256/14 CO NO.29/14 :- 4 -: CONSTRUCTION OF THE AFORESAID RESIDENTIAL HOUSE IN HIS RETURN. IN OUR VIEW, BOTH THE AFORESAID ARGUMENTS ARE ENTIRELY MI SCONCEIVED. SO FAR AS THE FIRST PLEA IS CONCERNED, THE REVENUE HAS FAI LED TO COUNTER THE CASE LAW (SUPRA) APPLIED BY THE CIT(A). THE SAME I S ALSO BINDING ON US. COMING TO LATTER PLEA, WE ARE OF THE OPINION THAT IN THE SECOND APPELLATE STAGE, THE APPELLANT-REVENUE CANNOT BE AL LOWED TO RAISE AN ALTOGETHER NEW GROUND IN THE ABSENCE OF ANY SUPPORT ING EVIDENCE. WE ALSO OBSERVE THAT ONCE THE ASSESSING OFFICER HAS H IMSELF DISALLOWED THE ASSESSEES CLAIM U/S 54 FOR THE REASONS OF HA VING RAISED CONSTRUCTION IN HER HUSBANDS NAME, IT IS PRESUMED THAT SHRI R. DEVARAJAN IS OWNING THE SAID PROPERTY EVEN IF NOT D ISCLOSED IN HIS RETURN. COUPLED WITH THIS, DETAILS OF THE NEWLY CO NSTRUCTED HOUSE ARE ALREADY STATED IN ASSESSMENT ORDER. SO, THE REVEN UE IS NOT ENTITLED TO TAKE ALTOGETHER A MUTUALLY DESTRUCTIVE PLEA WHICH G OES AGAINST THE VERY REASONS STATED IN THE ASSESSMENT ORDER. THUS, BOTH REVENUES ARGUMENTS ARE LIABLE TO BE REJECTED. CONSEQUENTLY, WE AGREE WITH THE CIT(A)S ORDER GRANTING RELIEF U/S 54 OF THE ACT . 7. THE ASSESSEES CROSS OBJECTIONS HAVE BEEN RENDERED INFRUCTUOUS. I.T.A.NO.256/14 CO NO.29/14 :- 5 -: 8. IN VIEW OF OUR ABOVE DISCUSSION, THE REVENUES APP EAL IS DISMISSED AND ASSESSEES CROSS OBJECTIONS ARE DISM ISSED AS HAVING BECOME INFRUCTUOUS. ORDER PRONOUNCED ON FRIDAY, THE 13 TH OF JUNE, 2014, AT CHENNAI. SD/- SD/- ( . ) (A. MOHAN ALANKAMONY) / ACCOUNTANT MEMBER ( . . ) (S. S. GODARA) ! / JUDICIAL MEMBER '# / CHENNAI $% / DATED: 13 TH JUNE, 2014 RD %& '()( / COPY TO : 1 . / APPELLANT 2 . / RESPONDENT 3. *+, / CIT(A) 4. * / CIT 5. (-. / / DR 6. .01 / GF