JAYANT S. JAIN, MUMBAI V. ASST CIT CIR 15(2), MUMBAI

ITA 2624/MUM/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4407 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: J
• Assessment Year: 2009-2010
• Appeal Filed On: 17-04-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JEEVANLAL LAVIDIYADR
• Assessee Lawyers: G P MEHTA
• Section: 54

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI-J,BENC H , , BEFORE S/SH. SANJAY GARG, JUDICIAL MEMBER & ASHWANI TANEJA, ACCOUNTANT MEMBER /.ITA NO.2624/MUM/2014, /ASSESSMENT YEAR-2009-10 SHRI JAYANT S. JAIN C/O.,G.P. MEHTA & CO. CAS, 807, TULSIANI CHAMBERS, 212, NARIMAN POINT, MUMBAI-400021. PAN NO.AAAPJ 9285 E VS. ASSTT. CIT, CIRCLE 15(2) MATRU MANDIR, ROOM NO.113 TARDEO, MUMBAI-400 007. ( / APPELLANT ) ( /RESPONDENT) APPELLANT BY SHRI G.P. MEHTA RESPONDENT BY SHRI JEEVANLAL LAVIDIYA-DR DATE OF HEARING : 17.12.2015 DATE OF PRONOUNCEMENT : 08.01.2016 O R D E R PER ASHWANI TANEJA, AM : THE ONLY GROUND ARGUED BY THE LD. COUNSEL OF THE AS SESSEE BEFORE US IS WITH REGARD TO ACTION OF LOWER AUTHORITIES IN DISALLOWIN G THE BENEFIT OF DEDUCTION/EXEMPTION CLAIMED BY THE ASSESSEE U/S.54 OF THE ACT FOR RS,21,95905/-, IN RESPECT OF LONG TERM CAPITAL GAIN (LTCG) ON AC COUNT OF SALE OF HOUSE PROPERTY. 2. DURING THE COURSE OF HEARING IT HAS BEEN SUBMITTED BEFORE US THAT THE ASSESSEE HAD CONSTRUCTED THE NEW HOUSE PROPERTY WIT HIN A STIPULATED PERIOD OF THREE YEARS. ALL THE CONDITIONS HAVE BEEN COMPLIED WITH R EGARD TO SECTION 54 OF THE ACT. THE ONLY GRIEVANCE OF THE LOWER AUTHORITIES WAS THA T THE UNUTILISED AMOUNT WAS NOT DEPOSITED IN THE SPECIFIED BANK ACCOUNT BEFORE FILI NG OF THE RETURN. LD. COUNSEL HAS 2 ITA NO.2624/M/14-JA YANT S. JAIN SUBMITTED PETITION U/R. 29 FOR ADMISSION OF ADDITIO NAL EVIDENCES SHOWING THAT HOUSE WAS COMPLETED WITHIN A STIPULATED PERIOD OF THREE Y EARS. IT HAS BEEN ARGUED THAT SINCE THE SUBSTANTIVE COMPLIANCE HAD BEEN MADE OF T HE LAW, THE BENEFIT OF DEDUCTION SHOULD NOT BE DENIED MERELY ON SOME PROCE DURAL REASONS. HE HAS ALSO SUBMITTED DETAILS SHOWING PAYMENT MADE BY THE ASSES SEE TOWARDS CONSTRUCTION OF NEW RESIDENTIAL HOUSE PROPERTY FOR AN AMOUNT AGGREG ATING TO RS.28,97,570/-. 3. ON THE OTHER HAND, LD. DR HAS SUBMITTED THAT ASSES SEE IS OBLIGED UNDER THE LAW TO MAKE COMPLIANCE OF THE CONDITIONS STIPULATED THEREIN, IF, HE SEEKS TO GET SOME BENEFITS PROVIDED UNDER THE LAW. HOWEVER, HE S HOWED NO SERIOUS OBJECTION IN CASE MATTER IS SENT BACK TO ASSESSING OFFICER FOR V ERIFICATION OF THE FACTS BASED ON FRESH EVIDENCES SOUGHT TO BE FILED BY THE ASSESSEE, BY WAY OF AFORESAID PETITION UNDER RULE-29. 4. WE HAVE HEARD BOTH THE PARTIES. FROM THE EVIDENCES BROUGHT BEFORE US IT APPEARS THAT ASSESSEE HAS COMPLETED CONSTRUCTION OF THE HOUSE PROPERTY. THUS, THE MAIN OBJECT OF LAW AS CONTAINED IN SECTION 54, TO D EVELOP NEW RESIDENTIAL UNITS HAS BEEN ACHIEVED. THE ONLY GRIEVANCE OF THE REVENUE NO W IS WITH REGARD TO NON DEPOSIT OF UNUTILISED AMOUNT IN THE SPECIFIED BANK ACCOUNT BY THE ASSESSEE. IN THIS REGARD BOTH THE PARTIES AGREED DURING THE COURSE OF HEARING THAT ASSESSEE CAN BE GRANTED THE BENEFIT OF SECTION 54 WITH RESPECT TO T HE AMOUNTS WHICH THE ASSESSEE HAS UTILISED IN CONSTRUCTION OF HOUSE PROPERTY UP T O THE TIME PERIOD AVAILABLE FOR FILING OF RETURN U/S. 139(4) OF THE ACT. THUS, KEEP ING IN VIEW POSITION OF LAW, FACTS AND EVIDENCE BROUGHT BEFORE US AND SUBMISSIONS MADE BY BOTH THE PARTIES BEFORE US, WE DEEM IT APPROPRIATE TO SEND THIS ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION THAT AMOUNT UTILISED BY THE ASSESSEE TOWARDS CONSTRUCTION OF HOUSE PROPERTY UP TO THE DATE OF TIME PERIOD ALL OWED FOR FILING OF RETURN U/S. 3 ITA NO.2624/M/14-JA YANT S. JAIN 139(4), SHOULD BE CONSIDERED FOR THE PURPOSE OF GRA NTING DEDUCTION U/S. 54 OF THE ACT. THE ASSESSING OFFICER SHALL ALSO EXAMINE EVIDE NCES WITH REGARD TO COMPLETION OF CONSTRUCTION. IN CASE CONSTRUCTION OF HOUSE PROP ERTY HAS BEEN COMPLETED THEN BENEFIT OF SECTION 54 SHALL NOT BE DENIED FOR THE A MOUNT AS DISCUSSED ABOVE. THE ISSUE IS BEING SENT BACK TO THE ASSESSING OFFICER F OR VERIFICATION OF FACTS IN THIS REGARD, FOR WHICH AN ADEQUATE OPPORTUNITY OF HEARIN G SHALL BE GRANTED TO THE ASSESSEE. THE ASSESSEE SHALL ALSO EXTEND REQUISITE CO-OPERATION TO THE ASSESSING OFFICER AND FURNISH REQUISITE DETAILS AND DOCUMENTS AS REQUIRED BY THE ASSESSING OFFICER, AS PER LAW. THIS GROUND IS TREATED AS PART LY ALLOWED FOR STATISTICAL PURPOSES. OTHER GROUNDS ARE TREATED AS DISMISSED BEING NOT PR ESSED. 5. AS A RESULT, THIS APPEAL IS TREATED AS PARTLY ALLO WED. ORDER PRONOUNCED IN THE OPEN COU RT ON 08.01.2016. 08 , 2016 SD/- SD/- ( /SANJAY GARG ) ( /ASHWANI TANEJA) / JUDICIAL MEMBER /ACCOUNTANT MEMBER , MUMBAI, DATED 08.01.2016 JV, SR. PS 4 ITA NO.2624/M/14-JA YANT S. JAIN / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI