SUMAN KADAM, THANE V. ITO WD 2(4), THANE

ITA 2777/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3899 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 23-04-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DEBABRATA BAID YA
• Keywords: Capital asset; Additional evidence; Revised return
• Section: 54F; 54; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SANJAY ARORA , A M AND SHRI PAWAN SINGH, J M ./ I.T.A. NO. 2777/MUM/2014 ( / ASSESSMENT YEAR: 2008 - 09) SUMAN KADAM S/1, NARMADA APARTMENT, CABIN CROSS ROAD, BHAYANDAR (E), THANE - 401 105 / VS. ITO, WARD 2(4), VARDAAN, 6 TH FLOOR, ASHAR I. T. PARK, ROAD NO. 16 - Z, WAGLE INDL. ESTATE, THANE - 400 604 ./ ./ PAN/GIR NO. AFIPK 3600 D ( A SSESSEE ) : ( RE VENUE ) ./ I.T.A. NO. 3256/MUM/2014 ( / ASSESSMENT YEAR: 2008 - 09) ITO, WARD 2( 2 ), THANE - 400 604 / VS. SUMAN KADAM THANE - 401 105 ( RE VENUE ) : ( A SSESSEE ) A SSESSEE BY : SHRI VIJAY SHAH RE VENUE BY : SHRI DEBABRATA BA IDYA / DATE OF HEARING : 12.5.2016 / DATE OF PRONOUNCEMENT : 08 . 8 .2016 / O R D E R PER SANJAY ARORA, A. M.: TH ESE ARE CROSS A PPEAL S, I.E., BY THE ASSESSEE AND THE REVENUE, ARISING OUT OF THE ORDER BY THE COMM ISSIONER OF INCOME TAX (APPEALS) - 2 , THANE (CIT(A) FOR SHORT) DATED 27.2.2014, PARTLY ALLOWING THE A SSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S.143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A.Y.) 2008 - 09 VIDE ORDER DATED 31.12.2010. 2 ITA NO S . 2777 & 3256 /MUM/2014 (A.Y. 2008 - 09) SUMAN KADAM VS. ITO 2. EXPLAINING THE BACKGROUND FACTS OF THE CASE, IT WAS SUBMITTED BY THE LD. AUTHORIZED REPRESENTATIVE (AR), THE ASSESSEES COUNSEL , THAT THE ASSESSEE, A WIDOW, WHO OWNED 1/4 TH SHARE IN A PLOT OF LAND ADMEASURING 8090 SQ. MTRS. , BEARING SURVEY NO. 99 AT VILLAGE GHOD BUNDER, TALUKA AND DISTRICT THANE, HAD ALONG WITH THREE OTHER CO - OWNERS, BEING FAMILY MEMBERS, ENTERED INTO AN AGREEMENT FOR SALE AND DEVELOPMENT ON 15.12.1994 WITH ANOTHER SET OF INDIVIDUAL S , ANIL PATEL & OTHERS, FOR A TOTAL CONSIDERATION OF RS.1,05,00,000/ - (PB PGS. 39 - 56). TAKING US THROUGH THE RE CITALS AND THE TERMS OF THE SAID AGREEMENT, IT WAS SOUGHT TO BE EMPHASIZED THAT THE ENTIRE CONSIDERATION WAS TO BE RECEIVED WITHIN 12 MONTHS OF THE EXECUTION OF THE AGREEMENT. THE PAYMENT WAS, IN FACT, RECEIVED IN DUE COURSE OF TIME. A POWER OF ATTORNEY WAS ALSO EXECUTED FOR THE PURPOSE IN FAVOUR OF THE BUYERS. IN FACT, THE BUYERS ASSIGNED THE DEVELOPMENT RIGHTS TO ANOTHER, M/S. RASH MI GRU H NIRMAN LTD. , VIDE AN AGREEMENT FOR DEVEL OPMENT AND SALE DATED 18.1.1996 (AT PB PGS. 57 - 82), IN PURSUANCE TO WHICH A BUILDING WAS CONSTRUED ON THE DEMISED LAND BY THE LATTER. IN FACT, A HOUSING SOCIETY WAS ALSO F ORMED QUA THE SAID RESIDENTIAL COMPLEX IN THE YEAR 2003. THE ENTIRE TRANSACTION WAS C OMPLETED MUCH EARLIER, I.E., SOMETIME IN THE LATE 1990S, AND THE ENTIRE CAPITAL GAIN AROSE TO THE ASSESSEE FOR THAT YEAR /S . THE ASSESSEE HAVING RECEIVED PART CONSIDERATION IN AN EARLIER YEAR , RECEIVED PART CONSIDERATION OF HER SHARE OF CONSIDERATION DURING THE CURRENT YEAR FROM SHRI RAMAKANT M AHADEV KADAM , A CO - OWNER AND BROTHER OF THE ASSESSEES HUSBAND. THE AMOUNTS HAD BEEN RETAINED BY THE LAT T ER DUE TO SOME DIFFERENCES AND LEGAL DISPUTES BETWEEN THE TWO. THE ASSESSEE RETURNED THE ENTIRE CAPITAL GAIN AMOU NTING TO RS.24,29,117/ - , I.E., AS ATTRIBUTABLE TO HER 1/4 TH SHARE (VALU ING RS.26.25 LACS) FOR THE CURRENT YEAR , ALSO CLAIMING DEDUCTION U/S. 54 - F THEREON IN RESPECT OF INVESTMENT IN A RESIDENTIAL HOUSE. THE RETURN ING OF THE CAPITAL GAIN ON THE SAID PROPERT Y BY THE ASSESSEE FOR THE CURRENT YEAR WAS, TH US , CLEARLY A MISTAKE. THE REVENUE AUTHORITIES WERE HOWEVER OF THE VIEW THAT THE ASSESSEE COULD NOT WITHDRAW HER DECLARATION OF LONG - TERM CAPITAL GAIN (LTCG) SUPRA, I.E., ONCE RETURNED, EXCEPT PER A REVISED RET URN. 3 ITA NO S . 2777 & 3256 /MUM/2014 (A.Y. 2008 - 09) SUMAN KADAM VS. ITO IN THEIR VIEW THE GAIN HAD BEEN CORRECTLY RETURNED IN - AS - MUCH AS THE ASSESSEE COULD NOT SHOW AS TO WHY THE SALE PROCEEDS HAD NOT BEEN RECEIVED DURING THE RELEVANT YEAR (I.E., THE PREVIOUS YEAR RELEVANT TO A.Y. 1995 - 96) OR , PER CONTRA , WHY WAS THE RELE VANT PROPERTY HANDED OVER TO THE BUYER WITHOUT RECEIVING FULL CONSIDERATION IN ITS RESPECT . THE RELIEF U/S. 54 - F HAS ALSO BEEN RESTRICTED QUA CAPITAL GAIN ARISING ON ONLY ONE PLOT OF LAND ( I.E., SINGLE CAPITAL ASSET), WHILE THE PROVISION CARRIES NO SUCH R ESTRICTION. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. I T SHALL BE RELEVANT TO , BEFORE WE PROCEED TO ADJUDICATE THE ISSUES ARISING, RECOUNT THE BACKGROUND FACTS OF THE CASE. THE ASSESSEE RETURNED HER INCOME FOR THE RELEVANT ASSE SSMENT Y EAR ( A .Y. ) ON 23.03. 2009, DISCLOSING LONG - TERM CAPITAL GAIN (LTCG) ON THREE PLOTS OF LAND, AS UNDER, CLAIMING EXEMPTION U /S. 54F ON THE LAST TWO: (REFER PG. 2 OF THE ASSESSMENT ORDER) ( AMOUNT IN RS. ) CAPITAL ASSET LTCG EXEMPTION U/S. 54F SHOWN IN RETURN PLOT NO. 375/6 315270 - 315270 PLOT N O. 99 2429117 774217 1654900 PLOT N O. 688 4493702 4493702 - TOTAL 7238089 5267919 1970170 T HE ASSESSEE SUBSEQUENTLY, I.E., VIDE HER LETTER DATED 27 . 12 . 2010, FURNISHED D URING THE ASSESSMENT PROCEEDINGS, SOUGHT TO WITHDRAW HER DISCLOSURE OF CAPITAL GAIN ON PLOT NUMBER 99. THE SAME WAS CONSIDERED NOT ACCEPTABLE BY THE ASSESSING OFFICER (A.O.) IN - AS - MUCH AS THE ASSESSEE HAD NOT DONE SO PER A REVISED RETURN, I.E., AS PRESCRIB ED BY LAW. HOW COULD THE ASSESSEE HAVE GIVEN POSSESSION OF THE P LOT WITHOUT RECEIVING FULL CONSIDERATION IN ITS RESPECT? IF THE POSSESSION HAD INDEED BEEN GIVEN, WHY IS THAT THE ASSESSEE DID NOT RETURN THE CAPITAL GAIN FOR THE RELEVANT YEAR, I.E., A.Y. 19 95 - 96. THE PROPERTY , I N FACT, CONTINUE D TO BE SHOWN IN THE ASSESSEES BALANCE - SHEET TILL 31 .3. 2007 ( I.E., UP TO A.Y. 20 07 - 08). THE CLAIM FOR EXEMPTION U /S. 54F WAS ALSO DISALLOWED AS , AS IT APPEARED, THE ASSESSEE OWNED MORE THAN ONE RESIDENTIAL HOUSE AT 4 ITA NO S . 2777 & 3256 /MUM/2014 (A.Y. 2008 - 09) SUMAN KADAM VS. ITO TH E RELEVANT TIME , VIOLATING S. 54F(1) . F URTHER, NO DETAILS OF THE INVESTMENT OF CAPITAL GAIN HAD BEEN FURNISHED, WHICH ( CAPITAL GAIN ) HAD ADMITTEDLY NOT BEEN DEPOSITED, AS REQUIRED BY LAW, IN A SEPARATE CAPITAL GAIN S ACC OUNT WITH A SCHEDULED BANK, I.E., TO THE EXTENT NOT UTILI Z ED UP TO THE DATE OF FILING THE RETURN OF INCOME FOR THE RELEVANT YEAR. THE C OMMENCEMENT AND COMPLETION DATE S OF THE RESIDENTIAL HOUSE WERE ALSO NOT FURNISHED AND , IN ANY CASE , NOT ESTABLISHED. IN APPEAL, THE LD. CIT (A) FOUND THE ASSES SEE ELIGIBLE F O R HER CLAIM FOR EXEMPTION U /S. 5 4F AS , ON THE BASIS OF EVIDENCE S FURNISHED AND ADMITTED, THE SAME WERE FOUND BY HIM AS NON - RESIDENTIAL. FURTH ER, EVEN IF CONSIDERED RESIDENTIAL , THE SAME ARE ONLY PARTLY OWNED, WHICH COULD NOT BE EQUATED WITH ABSOLUTE OWNERSHIP, RELYING FOR THE PURPOSE ON THE DECISION IN ITO VS. RASIKLAL N. SATRA [2006] 98 ITD 335 ( MUM ) . FURTHER, THE LD. CIT (A) , FOLLOWING RAJESH KESHAV PILLAI VS. ITO [2 011 ] 44 S OT 617 (MUM) , RESTRICTED THE EXEMPTION U /S. 54F TO THE CAPITAL GAIN ON THE SALE OF PLOT NUMBER 688, SO THAT THAT QUA PLOT NUMBER 99 WAS TO BE EXCLUDED. AS REGARDS THE INVESTMENT IN THE NEW RESIDENTIAL HOUSE, RELIANCE WAS PLACED FOR THE PURPOSE ON THE SUM REFLECTED IN THE ASSESSEES BOOKS IN ITS RESPECT . THE TOTAL INVESTME NT UP TO 31 .3. 2010 (RS.44.05 L ACS), I.E., THE LAST DATE F OR FILING THE RETURN OF INCOME U /S. 139 (4) FOR THE CURRENT YEAR , WAS TAKEN INTO ACCOUNT FOR THE PURPOSE. RELIANCE TOWA RD THE SAME WAS PLACED ON CIT VS. JAGRITI AGGARWAL [ 2011 ] 339 ITR 610 (P & H); KISH ORE H. GALAIYA V S. ITO [ 2012 ] 137 ITD 22 9 (MUM) ; AND JAGTAR SINGH CHAWLA V S. A SS T. CIT (IN ITA NO. 4923/D EL/2010 DATED 30. 6 . 2011) , SINCE AFFIRMED IN CIT VS. JAGTAR SINGH CHAWLA (IN ITA NO. 71 OF 2012 DATED 20.3.2013/COPY ON RECORD). THE PROP ORTIONATE CAPIT AL GAIN, AT 87.35%, APPLIED, WITH REFERENCE TO WHICH EXEMPTION U/S. 54F IS TO BE ALLOWED, WORKED TO RS.39.25 L ACS , TO WHICH EXTENT RELIEF THERE - UNDER WAS, ACCORDINGLY, DIRECTED TO BE ALLOWED. AGGRIEVED, BOTH PARTIES ARE IN APPEAL, THE ASSESSEE RAISING THE FOLLOWING GROUNDS: 1. THE HON'BLE COMMISSIONER OF INCOME TAX(A) - II , THANE HAS ERRED IN LAW AND IN FACTS BY DISALLOWING THE CLAIM OF RS. 13,42,670 / - U / S.54F OF THE INCOME - TAX ACT, 1961 OUT OF THE TOTAL CLAIM OF RS. 52,67,919/ - . 5 ITA NO S . 2777 & 3256 /MUM/2014 (A.Y. 2008 - 09) SUMAN KADAM VS. ITO 2. THE HON'BLE COMMISSIONER OF INCOME TAX (A) - II , THANE HAS ERRED IN LAW AND IN FACTS BY CONFIRMING THE ADDITIONS OF LONG TERM CAPITAL GAIN MADE BY THE ASSESSING OFFICER AMOUNTING TO RS. 24,29,117 / - - ON SALE OF ONE FOURTH SHARE IN THE LAND BEARING SURVEY NO 99 IN EARLIER ASSESSMENT YEAR 1995 - 96 ERRONEOUSLY OFFERED FOR TAXATION IN A.Y. 2008 - 09, AN YEAR UNDER APPEAL, ALTHOUGH NONE OF THE INGREDIENTS OF SECTION 45 READ WITH SECTION 2(47) WERE FULFILLED AND THUS THE CAPITAL GAIN THEREOF DID NOT PERTAIN TO THE YEAR IN QUESTION. 3. THE HON'BLE COMMISSIONER OF INCOME TAX(A) - II , THANE HAS ERRED IN LAW AND IN FACTS BY HOLDING THAT THE APPELLANT'S ACTION OF WITHDRAWING THE AFORESAID CAPITAL GAINS ERRONEOUSLY OFFERED IN THE YEAR UNDER CONSIDERATION ON THE PREMISE THAT THERE IS NO PROVISION IN THE ACT PERMITTING SUCH A WITHDRAWAL HAS RIGHTLY BEEN REJECTED BY THE ASSESSING OFFICER. THE REVENUES APPEAL AGITATES THE PART RELIEF U/S. 54F ALLOWED BY THE LD. CIT(A) IN - AS - MUCH AS THE SAME WAS DONE BY ADMITTING NEW EVIDENCES WITHOUT OBSERVING THE MA NDATORY PROCEDURE PRESCRIBED UNDER RULE 46A (OF THE INCOME TAX RULES, 1962) AND SEEKING A.O.S REPORT THEREON . WE SHALL TAKE UP THE ASSESSEES APPEAL FIRST. T HE FIRST ISSUE , RAISED PER GROUNDS 2 AND 3, IS WHETHER THE CAPITAL GAIN ON THE TRANSFER OF PLOT N O. 99 ARISES TO THE ASSESSEE DURING THE CURRENT YEAR, OR DOES IT SO FOR ANY OTHER YEAR, AS (SAY) A.Y. 1995 - 96. T HE SECOND ISSUE ARISING IN THE INSTANT APPEAL IS THE RESTRICTION OF THE CLAIM FOR EXEMPTION U /S. 5 4F TO RS.3 9 ,25,249 / - , I.E., AS AGAINST THE CLA IMED SUM OF RS.5 2 , 67 ,319 / - . IN RESPECT OF THE FIRST ISSUE, AS EXPLAINED BY THE HONBLE APEX COURT IN CIT VS. SHELLY PRODUCTS [2003] 261 ITR 367 (SC), THE LIABILITY TO TAX DOES NOT DEPEND UPON ASSESSMENT, BUT ARISES AS SOON AS THE FINANCE ACT PRESCRIBES TH E RATE /S FOR THE RELEVANT YEAR, I.E., U/S.4 OF THE ACT. AS SUCH, EVEN WHERE THE ASSESSMENT DOES NOT SURVIVE OR IS HELD AS VO ID AB - INITIO , THE TAX PAID BY WAY OF SELF - ASSESSMENT TAX COULD NOT BE REFUNDED TO THE ASSESSEE. HOWEVER, JUST BECAUSE THE ASSESSEE H AS FILED THE RETURN, HE CANNOT BE SADDLED WITH A TAX LIABILITY IN - AS - MUCH AS THERE IS NO ESTOPPEL AGAINST LAW (REFER: CIT VS. DURGA PRASAD MORE [1971] 82 ITR 540 (SC)), AND IT IS ONLY THE CORRECT 6 ITA NO S . 2777 & 3256 /MUM/2014 (A.Y. 2008 - 09) SUMAN KADAM VS. ITO INCOME, ASSESSABLE FOR A YEAR , WHICH COULD BE BROUGHT TO TAX FOR TH AT YEAR ( CIT VS. BRITISH PAINTS INDIA LTD. [ 1991] 188 ITR 44 (SC)) . T HE PURVIEW OF THE A.O. IS TO ASSESS THE TOTAL INCOME FOR THE RELEVANT YEAR. A S SUCH, WHERE THE ASSESSEE IS ABLE TO SHOW THAT THE INCOME AS RETURNED IS NOT ASSESSABLE FOR THAT YEAR, I.E., AS PER LAW ; EACH YEAR BEING AN INDEPENDENT UNIT OF ASSESSMENT, WE SEE NO REASON AS TO WHY THE SAME COULD NOT BE EXCLUDED. THE ONUS, HOWEVER, TO SHOW THAT IT IS NOT SO, AS WHERE THE RETURN AS FURNISHED CARRIED AN OMISSION OR A WR ONG STATEMENT IS SQUA RELY ON THE ASSESSEE. IN THE CONTEXT OF THE PRESENT CASE, ADMITTEDLY A LEGAL DISPUTE /S LED TO THE WITHHOLDING OF THE PAYMENT OF RS.58.25 LACS (OUT OF THE TOTAL CONSIDERATION OF RS.105 LACS), AND WHICH STANDS RESOLVED DURING THE CURRENT YEAR ( REFER ASSESSE ES REPLY , REPRODUCED AT PARA 2 OF THE ASSESSMENT ORDER) , SO THAT IT IS PRIMA FACIE INDICATIVE OF THE INCOME (BY WAY OF CAPITAL GAIN) ARISING DURING THE CURRENT YEAR. THE ASSESSEE CLAIMS THAT THE POSSESSION WAS ALLOWED FORTHWITH, I.E., ON THE EX ECUTION OF THE SALE AND DEVELOPMENT AGREEMENT DATED 15.12.1994 AND , IN FACT , THE DEVELOPMENT RIGHTS STOOD FURTHER ASSIGN ED BY THE DEVELOPER , ANIL PATEL AND O THER S, ON 18.1.1996 , SO THAT CAPITAL GAIN U/S.45 R/W S. 2(47)(V) AROSE FOR A.Y. 1995 - 96 . WITHOUT DOUBT, ONLY R S.46.75 LACS W AS RECEIVED, EVEN AS THE AMOUNT WAS TO BE RECEIVED WITHIN 12 MONTHS , WITH IN FACT FURTHER TRANSFER TAKING PLACE SOON AFTERWARDS, IN JANUARY, 1996 . THE WITHHOLDING OF THE BALANCE WAS THUS ONLY ON ACCOUNT OF SOME DISPUTE /S , AND WHICH WAS , AS ST ATED , SUBJECT TO LO NG DRAWN LITIGATION. WHAT WAS THE DISPUTE/S, I.E., ITS NATURE ? WH EN WAS THE BALANCE AMOUNT (RS.5 8 .25 LACS) RECEIVED , AND BY WHOM ? THE SAME, AS IT APPEARS, IS RECEIVED WITHOUT ANY COMPENSATION FOR TIME, EVEN AS FUNDS HAVE OPPORTUNITY AND TIME COST , AND THE SAME STANDS PRESUMABLY RECEIVED AFTER OVER 13 YEARS. WHY ? THAT APART , HOW COULD THE ASSESSEES SHARE (RS.26.25 LACS) BE GIVEN TO , AS STATED, RAMAKANT KADAM, HER BROTHER - IN - LAW, SHE BEING A SEPARATE AND DISTINCT PERSON, AN OWNER ( TO THE E XTENT OF 1/4 TH ) IN HER OWN RIGHT. 7 ITA NO S . 2777 & 3256 /MUM/2014 (A.Y. 2008 - 09) SUMAN KADAM VS. ITO IN OUR VIEW, THE ISSUE SHALL HAVE TO BE DETERMINED ON THE AN VIL AND TOUCH STONE OF SECTION 2(4 7 )(V) OF THE ACT R/W S. 53A OF THE TRANSFER OF THE PROPERTY ACT, 1882. THE ASSESSEE HAVING RETURNED CAPITAL GAINS (FOR THE CURR ENT YEAR) DESPITE HAVING NOT RECEIVED HER SHARE EVEN DURING THE CURRENT YEAR (REFER PARA 6 OF THE ASSESSMENT ORDER) , IS THUS AWARE THAT THE INCOME BY WAY OF CAPITAL GAIN S IS ASSESSABLE ON ACCRUAL BASIS, STATING RESOLUTION OF THE LEGAL DISPUTE DURING THE CU RRENT YEAR AS THE REASON FOR CONSIDERING THE SAME AS HAVING ACCRUED/ARISEN THEREAT . IF NOT DURING THE CURRENT YEAR, WHEN DID THE SAME GET RESOLVED AND, FURTHER, WHAT IS THE BASIS OR THE EVIDENCE TO CONSIDER IT AS SO ? NO DETAILS WITH REGARD THERETO STAND FU RNISHED AT ANY STAGE ; THE ASSESSEE CHANGING HER STAND TO CLAIM THAT NO GAIN IN FACT AROSE DURING THE CURRENT YEAR . THE COMPLETE DETAILS NEED TO BE BROUGHT FORTH, AND ITS IMPACT CONSIDERED IN LIGHT AND IN THE CONTEXT OF THE PROVISION S OF LAW , WHILE THERE IS NOTHING ON RECORD TOWARD THE SAME, WITH , RATHER, EVEN MOST OF THE FACTS STATED BY THE LD. C OUNSEL BEING NOT BORNE OUT BY THE RECORD. THEN THERE IS T HE QUESTION OF WHETHER THE TRANSFEREE HAS PERFORMED OR WAS WILLING TO PERFORM HIS PART OF THE CONTRACT (SEC. 53A OF THE TP ACT) . IF SO, WHY IS IT THAT THE PAYMENT WAS WITHHELD, AND FOR YEARS, OR GIVEN, AS STATED, TO THE ASSESSEE S BROTHER - IN - LAW, AND WHEN ? ANSWERS TO TH ESE AND OTHER RELATED QUESTIONS WOULD DECIDE WHETHER THE CAPITAL GAIN HAD INDEED ARISEN TO THE ASSESSEE DURING THE RELEVANT PREVIOUS YEAR AND, IF NOT, WHEN. THE MATTER IS ACCORDINGLY RESTORED TO THE FILE OF THE ASSESSING AUTHORITY FOR FRESH ADJUDICATION WITH REGARD TO WHETHER ANY PART OF THE CAPITAL GAINS ON TRANSFER OF PLOT NO. 99 ARISE TO T HE ASSESSEE DURING THE RELEVANT YEAR. THE AO SHALL DECIDE ISSUING DEFINITE FINDINGS OF FACT. WE DECIDE ACCORDINGLY. AS REGARDS THE QUESTION OF EXEMPTION U/S. 54F, THE SECOND ISSUE, ASSESSEE HAS NOT BROUGHT FORTH ANY REASON TO DISTURB THE FINDINGS AND DETE RMINATION BY THE LD. CIT(A) , I.E., IN - SO - FAR AS IT IS ADVERSE TO THE ASSESSEE, BEING IN FACT BASED ON JUDICIAL PRECEDENTS , BINDING ON THE R EVENUE AUTHORITIES. WE, ACCORDINGLY, CONFIRM THE SAME. THE R EVENUES GRIEVANCE IS WITH REGARD TO THE LD. CIT(A) RELYI NG ON T HE A D DITIONAL EVIDENCES WITHOUT OBSERVING THE MANDATE OF RULE 46A . WE FIND THE 8 ITA NO S . 2777 & 3256 /MUM/2014 (A.Y. 2008 - 09) SUMAN KADAM VS. ITO REVENUES OBJECTION VALID , BEING S QUARELY COVERED BY R. 46A(3) , EVEN AS WE UPHOLD HIS DECISION WITH REGARD TO THE ADMISSION OF ADDITIONAL EVIDENCES. THE SAME, WE OBSERVE, ARE IN RELATION TO: A) NATURE OF THE HOUSE PROPERTIES OWNED BY THE ASSESSEE RESIDENTIAL OR NON - RESIDENTIAL; B) NATURE OF OWNERSHIP A BSOLUTE OR PARTIAL; AND C) INVESTMENT IN NEW RESIDENTIAL HOUSE ON TIME SCALE (UP TO 31/3/2010) THE RELIEF BY THE LD. CIT(A) SH ALL THEREFORE BE SUBJECT TO THE VERIFICATION BY AND THE SATISFACTION OF THE AO WITH REGARD TO THE ASSESSEES CLAIMS MADE QUA THE SAME. WITH REGARD TO PART OR (CO - ) OWNERSHIP, W E MAY THOUGH CLARIFY THAT THE SAME HAS BEEN HELD IN CIT V. M.J. SIWANI [2014] 3 66 ITR 356 (KAR.) TO BAR ELIGIBILITY U/S. 54F, SLP AGAINST WHICH STANDS DISMISSED IN 232 TAXMAN (ST.) 335 (SC). FURTHER, THERE BEING NO FINDING BY THE LD. CIT(A) WITH REGARD TO THE COMMENCEMENT AND COMPLETION DATES OF THE NEW RESIDENTIAL HOUSE, THE AO SHAL L EXAMINE THE SAID ASPECT ALSO , REPRESENT AS IT DOES A PRIMARY CONDITION FOR EXEMPTION U/S. 54 - F. NEEDLESS TO ADD, IT HAVING BEEN DECIDED AND, FURTHER, ENDORSED BY US THAT THERE CAN BE NO AGGREGATION OF CAPITAL GAINS ARISING ON DIFFERENT CAPITAL ASSETS FOR THE PURPOSE OF CLAIM U/S. 54F, I.E., QUA A PARTICULAR RESIDENTIAL PROPERTY, THE EXEMPTION U/S. 54F SHALL BE ONLY WITH REFERENCE TO THE CAPITAL GAIN ON THE TRANSFER OF PLOT # 688. THE AO SHALL DECIDE IN ACCORDANCE WITH LAW, ISSUING DEFINITE FINDINGS OF FAC T, RENDERED OF - COURSE AFTER HEARING THE ASSESSEE, AS WELL AS ALLOWING HER AN OPPORTUNITY TO SUBSTANTIATE HER CLAIMS . SUBJECT TO THE AO RETURNING POSITIVE FINDINGS, WE CONFIRM THE RELIEF AS ALLOWED QUA SECTION 54F BY THE LD. CIT(A) , WHOSE ORDER WE THUS APPR OVE IN PRINCIPLE , I.E., SAVE QUA THE CO - OWNERSHIP AS NOT BARRING EXEMPTION U/S.54F, AS NOTED ABOVE . WE DECIDE ACCORDINGLY. WE MAY BEFORE PARTING ADD THAT LEST ONE CONSIDERS US AS HAVING TRAVELLED OUTSIDE THE SCOPE OF THE INSTANT APPEAL S , I.E., WHILE ISSUI NG THE DIRECTIONS WITH WHICH THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING AUTHORITY, WE MAY ADVERT TO THE 9 ITA NO S . 2777 & 3256 /MUM/2014 (A.Y. 2008 - 09) SUMAN KADAM VS. ITO DECISIONS , INTER ALIA , IN THE CASE OF KAPURCHAND SHRIMAL V. CIT [1981] 131 ITR 451 ( SC) AND AHMEDABAD ELECTRICITY CO. LTD. V. CIT [1993] 199 IT R 351 (BOM)(FB). 4. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES , AND THE REVENUES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON AUGUST 08 , 201 6 SD/ - SD/ - ( PAWAN S INGH ) (S ANJAY ARORA) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 08 . 0 8 .201 6 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI