Samar Chandra, CHENNAI V. ITO Non Corporate Ward 1(3), CHENNAI

ITA 2820/CHNY/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1285 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 23-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V M MAHIDAR
• Assessee Lawyers: N DEVANATHAN
• Keywords: Set aside
• Section: 148; 54

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , ! ' # , % #& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ./ ITA NO.2820/CHNY/2017 ) *) / ASSESSMENT YEAR : 2005-06 SHRI SAMAR CHANDRA, NO.94-A/72, 1 ST FLOOR, 4 TH STREET, ABHIRAMAPURAM, CHENNAI - 600 018. PAN : AALPS 3879 C V. THE INCOME TAX OFFICER, NON CORPORATE WARD - 1(3), CHENNAI - 600 034. (,-/ APPELLANT) (./,-/ RESPONDENT) ,- 0 1 / APPELLANT BY : SH. N. DEVANATHAN, ADVOCATE ./,- 0 1 / RESPONDENT BY : SHRI V.M. MAHIDAR, JCIT 2 0 3% / DATE OF HEARING : 07.08.2019 45* 0 3% / DATE OF PRONOUNCEMENT : 05.09.2019 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -4, CHENNA I, DATED 01.02.2016 AND PERTAINS TO ASSESSMENT YEAR 2005-06. 2. THERE WAS DELAY OF 593 DAYS IN FILING THE APPEAL BY THE ASSESSEE. THE ASSESSEE FILED AN APPLICATION FOR CO NDONATION OF DELAY. HAVING HEARD THE LD.COUNSEL FOR THE ASSESSE E AND THE LD. 2 I.T.A. NO.2820/CHNY/17 D.R., THIS TRIBUNAL FINDS THAT THERE WAS A REASONAB LE CAUSE ON THE PART OF THE ASSESSEE IN NOT FILING THE APPEAL WITHI N THE PRESCRIBED TIME. THEREFORE, THE DELAY IS CONDONED AND THE APP EAL IS ADMITTED. 3. NOW COMING TO THE MERIT OF THE APPEAL, SH. N. DE VANATHAN, THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE INVESTED THE CAPITAL GAIN IN A PROPERTY AT ABHIRAMA PURAM, MYLAPORE, CHENNAI, ON 06.12.1995. SUBSEQUENTLY, ACCORDING TO THE LD. COUNSEL, THE BUILDING WAS DEMOLISHED AND THE ASSESS EE HAS RECONSTRUCTED THE SAME. THE ASSESSING OFFICER DISA LLOWED THE CLAIM OF THE ASSESSEE UNDER SECTION 54 OF THE INCOM E-TAX ACT, 1961 (IN SHORT 'THE ACT'). ACCORDING TO THE LD. COUNSEL , THE EXISTING BUILDING WAS DEMOLISHED AND THERE WAS RECONSTRUCTIO N, THEREFORE, THE CIT(APPEALS) IS NOT JUSTIFIED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER. 4. WE HEARD SHRI V.M. MAHIDAR, THE LD. DEPARTMENTAL REPRESENTATIVE, ALSO. THE FIRST ISSUE RAISED BY TH E ASSESSEE IN THE GROUNDS OF APPEAL IS WITH REGARD TO REOPENING OF AS SESSMENT. WE HAVE GONE THROUGH THE ORDERS OF BOTH THE AUTHORITIE S BELOW. AS PER THE INFORMATION RECEIVED BY THE ASSESSING OFFICER, THE ASSESSEE SOLD THE IMMOVABLE PROPERTY FOR A CONSIDERATION OF 84 LAKHS. THE 3 I.T.A. NO.2820/CHNY/17 ASSESSING OFFICER ALSO RECEIVED INFORMATION THAT TH E ASSESSEE ALONG WITH HIS WIFE PURCHASED A FLAT AT DOOR NO.20, SHRI RAM COLONY, ABHIRAMAPURAM, CHENNAI. IN VIEW OF THIS INFORMATIO N RECEIVED BY THE ASSESSING OFFICER, THIS TRIBUNAL IS OF THE CONS IDERED OPINION THAT THE ASSESSING OFFICER HAS RIGHTLY REOPENED THE ASSE SSMENT BY ISSUING NOTICE UNDER SECTION 148 OF THE ACT. 5. NOW COMING TO THE MERIT OF THE CLAIM OF SECTION 54 OF THE ACT ON RECONSTRUCTION OF BUILDING, FROM THE RECORDS, IT APPEARS THAT THE ASSESSEE PURCHASED A FLAT, NAMELY, FLAT NO.3, DOOR NO.20, SHRI RAM COLONY, ABHIRAMAPURAM, CHENNAI. WHEN THE ASSES SEE PURCHASED A FLAT, THERE MAY BE OTHER CO-OWNERS OF T HE PROPERTY. THEREFORE, THE CLAIM OF THE ASSESSEE THAT THE BUILD ING WAS DEMOLISHED BY HIM AND IT WAS RECONSTRUCTED IS BEYON D THE HUMAN PROBABILITY. UNLESS ALL THE CO-OWNERS JOINED TOGET HER TO APPLY FOR DEMOLITION TO THE MUNICIPAL CORPORATION, THE BUILDI NG CANNOT BE DEMOLISHED. COPIES OF THE SALE DEEDS WERE NOT FILE D BEFORE THIS TRIBUNAL. MOREOVER, THE ORDER SAID TO BE ISSUED BY THE MUNICIPAL CORPORATION FOR DEMOLITION AND RECONSTRUCTION OF TH E BUILDING ALSO NOT FILED BEFORE THIS TRIBUNAL. IN THOSE FACTUAL C IRCUMSTANCES, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE MATT ER NEEDS TO BE RE- 4 I.T.A. NO.2820/CHNY/17 EXAMINED. ACCORDINGLY, ORDERS OF BOTH THE AUTHORIT IES BELOW ARE SET ASIDE AND THE ENTIRE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE- EXAMINE THE MATTER IN THE LIGHT OF THE MATERIAL AVAILABLE ON RE CORD AND BRING ON RECORD THE ACTUAL FACTS WHETHER THE ASSESSEE PURCHA SED A FLAT OR INDEPENDENT HOUSE. IF THE ASSESSEE PURCHASED A FLA T, HOW IT WAS DEMOLISHED WITHOUT THE HELP OF OTHER CO-OWNERS. TH E ASSESSING OFFICER SHALL ALSO BRING ON RECORD WHETHER THERE WA S ANY ORDER BY MUNICIPAL CORPORATION FOR DEMOLITION OF EXISTING BU ILDING AND FOR RECONSTRUCTION AND THEREAFTER DECIDE THE ISSUE AFRE SH IN ACCORDANCE WITH LAW, AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 5 TH SEPTEMBER, 2019 AT CHENNAI. SD/- SD/- ( ! ' # ) ( . . . ) (INTURI RAMA RAO) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 7 /DATED, THE 5 TH SEPTEMBER, 2019. 5 I.T.A. NO.2820/CHNY/17 KRI. 0 .389 :9*3 /COPY TO: 1. ,- /APPELLANT 2. ./,- /RESPONDENT 3. 2 ;3 () /CIT(A)-4, CHENNAI-34 4. PRINCIPAL CIT- 5, CHENNAI 5. 9< .3 /DR 6. =) > /GF.