Sunita Singh, Jaipur V. ITO, Jaipur

ITA 275/JPR/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2175 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 08-04-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: POONAM ROY DCIT DHK
• Keywords: Capital asset; Capital expenditure
• Section: 54B; 54F; 54

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 275/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 SUNITA SINGH, 80, BRIJRAJ ENCLAVE, PANCHYAWALA, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD 2(1), AJMER. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AGMPS 9110 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : NONE JKTLO DH VKSJ LS@ REVENUE BY : SMT. POONAM ROY (DCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 15/01/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 16/01/2018 VKNS'K@ ORDER PER: BHAGCHAND, A.M. THIS IS THE APPEAL FILED BY THE ASSESSEE EMANATES F ROM THE ORDER OF THE LD. CIT(A), AJMER DATED 07/01/2014 FOR THE A.Y. 2009-2010, WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - 1. AS ON CONSTRUCTION OF HOUSE U/S 54 F EXEMPTION I S ALLOWED, SO EXEMPTION OF RS. 5,96,680/- THAT IF HAVE SPENT IN 2 009 ON CONSTRUCTION ON MY REMAINING LAND IS WORTH EXEMPTIO N BUT THE A.O. HAS NOT ACCEPTED IT GIVING REASON THAT AS THE PLOT HAS BEEN ALREADY SOLD, SO IT CANNOT BE GIVEN BUT ACCORDING TO SECTIO N 54F OF IT ACT IT IS ALLOWED. ITA 275/JP/2014_ SUNITA SINGH VS ITO 2 2. THE AMOUNT OF 1.4 LACS DEPOSITED IN CAPITAL GAIN S ACCOUNT SCHEME ON 29/07/2009 NEEDS NO PROOF, EXPLANATION SO; THE DEDU CTION IS ALLOWABLE UNDER INCOME TAX ACT. 2. AT THE TIME OF HEARING, NO ONE HAS APPEARED ON B EHALF OF THE ASSESSEE. THE LD DR WAS HEARD. 3. BOTH THE GROUND OF THE APPEAL IS INTERLINKED. THE LD. CIT(A) HAS DEALT THE ISSUE BY HOLDING AS UNDER: 4.3 I HAVE CONSIDERED THE CONTENTIONS OF THE APPEL LANT AS WELL AS ASSESSMENT ORDER AND THE REMAND REPORT. IT IS SEEN THAT THE AS SESSEE INITIALLY CONTENDED THAT THE LAND SOLD IS NOT A CAPITAL ASSET . HOWEVER DURING REMAND PROCEEDINGS, IT HAS BEEN MENTIONED BY THE AO THAT ASSESSEE HERSELF HAS TREATED THE IMPUGNED PROPERTY AS A CAPI TAL ASSET IN THE RETURN OF INCOME AND THIS ISSUE HAS NOT BEEN PRESSED AND S AME WAS CHARGEABLE TO TAX U/S 45 OF THE I.T. ACT. FURTHER IT IS SEEN T HAT THE AO HAS POINTED OUT IN THE ASSESSMENT ORDER THAT THE TEHSILDAR VIDE LET TER DATED 12.12.2011 IN LETTER NO. RA/2011/1359 HAS MENTIONED THAT THIS LAND IS SITUATED WITHIN 8 KMS OF MUNICIPAL LIMITS. THE ASSESSEES CL AIM THAT SALE OF SAID AGRICULTURAL LAND IS COVERED BY SEC. 10(37) IS WITH OUT ANY BASIS AS THE TRANSFER OF SAID LAND WAS NOT BY WAY OF COMPULSORY ACQUISITION. IN VIEW OF ABOVE DISCUSSION AND THE REMAND REPORT ON THE ISSUE , THE CLAIM OF THE ASSESSEE THAT LAND SOLD WAS NOT A CAPITAL ASSET IS REJECTED. AS REGARDING THE ASSESSEES CLAIM OF DEDUCTION U/S 54B OF THE I.T. ACT ON ACCOUNT OF PURCHASE OF 18 BIGHA OF AGRICULTURAL LAN D ON 29.07.2009 FOR A SUM OF RS.28,00,000, THE AO HAS MENTIONED THAT NECE SSARY DOCUMENT I.E. AGREEMENT OF PURCHASE OF NEW ASSET AND LATER ON REG ISTERED WITH THE SUB- REGISTRAR HAVE BEEN FURNISHED AND ASSESSEE IS ENTITLED TO GET BENEFIT ITA 275/JP/2014_ SUNITA SINGH VS ITO 3 OF DEDUCTION ON ACCOUNT OF SUCH INVESTMENT. ACCORDI NGLY, THE DEDUCTION U/S 54B TO ABOVE EXTENT IS ALLOWED TO THE ASSESSEE. AS REGARDING COST OF IMPROVEMENT OF RS.1,35,045 IN THE YEAR 2004 FOR THE SAID LAND, THE AO HAS MENTIONED IN THE REMAND REPOR T THAT THE ABOVE AMOUNT INCLUDES THE NON CAPITAL EXPENDITURE ALSO. I N THIS REGARD, IT MAY BE MENTIONED THAT EXPENDITURE IN MAKING THE ADDITIO NS AND ALTERATIONS TO THE CAPITAL ASSET HAS TO BE OF CAPITAL IN NATURE . IN VIEW OF ABOVE, THE AO IS DIRECTED TO ALLOW THE INDEXED COST OF IMPROVE MENT ON THE CAPITAL EXPENSES INCURRED BY THE ASSESSEE AFTER EXCLUDING T HE NON CAPITAL EXPENDITURE AS PER LAW. AS REGARDING THE ADDITIONS CLAIMED TO HAVE BEEN MA DE IN 2009 OF RS.4,15,186 BEFORE THE AO DURING THE REMAND PROCEED INGS AND RS.5,96,680 IN THE REJOINDER TO THE REMAND REPORT, IT MAY BE MENTIONED THAT NO SUCH CLAIM IS ALLOWABLE TO THE ASSESSEE AS THE IMPUGNED LAND WAS ALREADY SOLD IN 2008 ON 11.09.2008. SO THERE CANNOT BE ANY COST OF IMPROVEMENT FOR THE SAID LAND IN 2009 AS DISCUSSED BY THE AO IN THE REMAND REPORT. ACCORDINGLY, ASSESSEES CLAIM TO THI S EXTENT IS NOT ALLOWABLE. AS REGARDING THE ASSESSEES CLAIM OF CREDIT FOR IN VESTMENT OF RS.1,40,000 CLAIMED TO HAVE BEEN MADE ON 29.07.2009, IT MAY BE MENTIONED THAT NO SUCH CLAIM WAS MADE IN THE RETURN OF INCOME ALONG W ITH THE PROOF OF SUCH A DEPOSIT NOR SUCH DOCUMENTS WERE PRODUCED BEF ORE THE AO DURING THE ASSESSMENT PROCEEDINGS AS WELL AS REMAND PROCEE DINGS, HENCE THE CLAIM MADE BY THE APPELLANT IS REJECTED. ACCORDINGLY, THE AO IS DIRECTED TO COMPUTE THE TAX ABLE LONG TERM CAPITAL GAINS IN VIEW OF ABOVE FINDINGS. THE ADDITION MADE BY THE AO TO ABOVE EXTENT IS CONFIRMED AND BALANCE IS DELETED. ITA 275/JP/2014_ SUNITA SINGH VS ITO 4 4. AFTER HEARING THE LD. DR AND CONSIDERING THE FAC TS AND CIRCUMSTANCES OF THE CASE, THE BENCH FIND NO ANY CO NTRARY MATERIAL IN THE ORDER OF THE LD. CIT(A). THE ORDER OF THE LD. CIT(A) I S A SPEAKING ORDER, THEREFORE, SAME IS HEREBY UPHELD. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/01/2018. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ YS[KK LNL;@ YS[KK LNL;@ YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 16 TH JANUARY, 2018 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SMT. SUNITA SINGH, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD 2(1), AJMER. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 275/JP/2014) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR