SHRI NIRANJAN RAHEJA, MUMBAI V. ITO-4(1)(1), MUMBAI

ITA 279/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1199 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 21-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY J SETHI LD
• Assessee Lawyers: SASHI BEKAL LD; DR K SHIVRAM LD SR
• Keywords: Additional evidence
• Section: 201

Judgement Text

1 - IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI , , BEFORE HONBLE SHRI AMARJIT SINGH, JM AND HONB LE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO . 279 /MUM/2019 ( / ASSESSMENT YEAR: 201 3 - 14 ) SHRI NIRANJAN RAHEJA PRATIK BUILDING, V.P. ROAD BEHIND ARYA SAMAJ SANTACRUZ (W) , MUMBAI - 400 0 54 / VS. CIT(A) - 38 MUMBAI . ./ ./ PAN/GIR NO. AMLPR - 1370 - D ( / APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : DR. K. SHIVRAM - LD. SR. COUNSEL & SHRI SASHI BEKAL - LD. AR REVENUE BY : SHRI SANJAY J. SETHI LD. DR / DATE OF HEARING : 08/07/2021 / DATE OF PRONOUNCEMENT : 08/07/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AGGRIEVED BY DENIAL OF EXEMPTION U/S 54 FOR RS.27.20 LACS, THE ASSESSEE IS IN FURTHER APPEAL BEFO RE US. THE ASSESSEE HAS ALSO RAISED AN ADDITIONAL GROUND TO SUBMIT THAT LD. CIT(A) ERRED IN NOT ADMITTING THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE. AN APPLICATION HAS ALSO BEEN MADE BEFORE US FOR ADMISSION OF ADDITIONAL EVIDENCES. 2 2. HAVING HEARD RIV AL SUBMISSIONS AND UPON PERUSAL OF MATERIAL ON RECORD, OUR ADJUDICATION WOULD BE AS FOLLOWS. 3. AN ASSESSMENT WAS FRAMED AGAINST THE ASSESSEE ON 29/02/2016. WHILE EXAMINING ASSESSEES CLAIM OF DEDUCTION U/S 54, IT WAS NOTED THAT THE ASSESSEE EARNED LONG - TE RM CAPITAL GAIN OF RS.27.20 LACS ON SALE OF A FLAT SITUATED AT KHAR (W), MUMBAI AND CLAIMED DEDUCTION U/S 54 ON ACCOUNT OF INVESTMENT IN AN UNDER CONSTRUCTION FLAT SITUATED AT 701, GOKUL ANAND BUILDING . THE FLAT AT KHAR WAS SOLD ON 16/05/2012. IT WAS SUBMI TTED BY THE ASSESSEE THAT NEW FLAT WAS PURCHASED F ROM BALKRISHNA BUILDERS FOR RS.132.25 LACS AND A SUM OF RS.121.91 LACS WAS PAID. THE BUILDER ISSUED ALLOTMENT LETTER DATED 16/05/2012 AND THUS A RIGHT WAS CREATED IN THE FLAT AND THE CONDITIONS OF SEC.54 WE RE FULFILLED BY THE ASSESSEE . HOWEVER, NO OTHER DOCUMENT COULD BE FURNISHED BY THE ASSESSEE IN SUPPORT OF INVESTMENT IN NEW FLAT. THE FIELD VISIT BY WARD - INSPECTOR REVEALED THAT THE SAID FLAT WAS IN THE NAME OF SHRI DILPREET SINGH ANAND. IN RESPONSE TO NOT ICE U/S 133(6), THE BUILDER SUBMITTED THAT DUE TO SOME REASONS, THE BOOKING WAS CANCELLED AND THE AM O UNT PAID BY THE ASSESSEE WAS TRA NSFERRED TO AN OTHER PROJECT GO KUL VALLEY FLAT NO.B - 1004. THOU G H THE ASSESSE E PLEADED THAT THE CONDITIONS OF SEC . 54 WERE FUL F ILLED, HOWEVER, NOT CONVINCED, L D. AO DENIED DEDUCTION U/S 54 AS CLAIMED BY THE ASSESSEE. 4. DURING APPELLATE PROCEEDINGS, THE ASSESSEE SUBMITTED THAT THE BOOKING OF FLAT NO.701 WAS CANCELLED AND THE ENTIRE AMOUNT WAS TRANSFERRED TO FLAT NO.B - 1004. THUS N O MONEY WAS RECEIVED BACK BY THE ASSESSEE AND THE CONDITIONS OF SEC. 54 WERE DULY FULFILLED. THE ASSESSEE ALSO SOUGHT ADMISSION OF ADDITIONAL 3 EVIDENCES IN THE SHAPE OF ALLOTMENT LETTER DATED 28/03/2014 ISSUED BY THE BUILDER. HOWEVER, THE SAME WAS NOT ADMIT TED. THE LD. CIT(A), OPINED THAT THERE WERE TWO INDEPENDENT TRANSACTIONS. THE FLAT NO. 701 WAS CANCELLED AND THE PROCEEDS WERE TRANSFERRED TO FLAT NO.B - 1004. FURTHER THE ALLOTMENT LETTER DATED 16/05/2012 WITH RESPECT TO FLAT NO.701 DID NOT SPECIFY THE TERM S AS GENERALLY CONTAINED IN THE ALLOTMENT LETTER AND THE SAME WAS NOT LEGALLY ENFORCEABLE ALLOTMENT LETTER. THUS THE ACTION OF LD. AO IN DENYING THE DEDUCTION WAS UPHELD. AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 5. BEFORE US, LD. SR. COUNSEL , INTER - ALIA, ASSAILED THE ACTION OF LD. CIT(A) IN REJECTING THE ADDITIONAL EVIDENCES. THE LD. SR. COUNSEL ALSO SUBMITTED THAT NO DISALLOWANCE OF DEDUCTION COULD BE MADE WHERE BONA - FIDE INVESTMENT WAS MADE BY THE ASSESSEE IN ACCORDANCE WITH THE REQUIREMENT S OF SEC.54. RELIANCE HAS BEEN PLACED ON VARIOUS JUDICIAL PRONOUNCEMENTS TO SUBMIT THAT SEC.54 WAS BENEFICIAL PROVISIONS TO ENCOURAGE INVESTMENT IN HOUSING SECTOR. THE LD. SR. COUNSEL ALSO PLEADED THAT EVEN NEW PROPERTY AT GOKUL VALLEY WAS PURCHASED BY 15/ 05/2014 WHICH IS WITHIN STIPULATED PERIOD. THE LD. DR, ON THE OTHER HAND, SUBMITTED THAT THE ONUS TO TO DEMONSTRATE THE FULFILLMENT OF CONDITIONS ENVISAGED BY SEC.54 WAS ON THE ASSESSEE. 6. UPON CAREFUL CONSIDERATION, WE FIND THAT THE ADDITIONAL EVIDENCES AS SUBMITTED BY THE ASSESSEE ARE IN THE SHAPE OF ALLOTMENT LETTER DATED 28/03/2014 AND AGREEMENT DATED 30/03/2016. THESE DOCUMENTS SHALL HAVE MATERIAL BEARING TO ASCERTAIN THE ASSESSEES CLAIM OF DEDUCTION U/S 54. THEREFORE, 4 THESE EVIDENCES OUGHT TO HAVE B EEN ADMITTED. KEEPING IN VIEW THE ARGUMENTS MADE BEFORE US, WE DIRECT LD. CIT(A) TO ADMIT THE ADDITIONAL EVIDENCES AND RE - ADJUDICATE THE ISSUE OF DEDUCTION U/S 54 IN THE LIGHT OF THESE EVIDENCES AS WELL AS FACTUAL MATRIX ON RECORD. THE ASSESSEE IS DIRECTED TO SUBSTANTIATE HIS CLAIM, IN THIS REGARD. KEEPING IN VIEW THE FACT THAT THE ASSESSEE IS NON - RESIDENT, LD. CIT(A) IS DIRECTED TO DISPOSE - OFF THE APPEAL PREFERABLY WITHIN A PERIOD OF SIX MONTHS FROM THE DATE OF RECEIPT OF THIS ORDER. 7. THE APPEAL STANDS A LLOWED FOR STATISTICAL PURPOSES. O RDER PR ONOUNCED ON 08 TH JULY, 2021. SD/ - SD/ - ( AMARJIT SINGH ) (MANOJ KUMAR A GGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 08/07/2021 SR.PS, J AISY VARGHESE / 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 FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI .