Mihir Madhavrao Suryawanshi, Pune V. Income tax Officer, Pune

ITA 313/PUN/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0982 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 10 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 07-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Assessee Lawyers: SHIRUDE
• Keywords: Set aside
• Section: 54F; 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, J UDICIAL MEMBER . / ITA NO . 313 /PUN/201 7 / ASSESSMENT YEAR : 20 1 3 - 14 MIHIR MADHAVRAO SURYAWANSHI, FLAT NO. 7, GUJARAT COLONY, PAUD ROAD, KOTHRUD, PUNE 411029 PAN : AHYPS3597B ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD 11(2), PUNE / RESPONDENT ASSESSEE BY : SHRI M.R. SHIRUDE REVENUE BY : SHRI S.P. WALIMBE / DATE OF HEARING : 2 7 - 11 - 2019 / DATE OF PRONOUNCEMENT : 16 - 12 - 2019 / ORDER PER S.S. VISWANETHRA RAVI, JM : THIS APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 31 - 10 - 2016 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 1, PUNE [CIT(A)] FOR ASSESSMENT YEAR 201 3 - 14. 2. THE ONLY ISSUE TO BE DECIDED IS AS TO WHETHER THE CIT(A) JUSTIFIED IN CONFIRMING THE ORDER OF ASSESSING OFFICER IN DENYING THE DEDUCTION U/S. 54F OF THE ACT IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 2 ITA NO.313/PUN/2017, A.Y. 2013 - 14 3. HEARD BOTH PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ASSESSEE IS AN INDIVIDUAL AND IS A MEDICAL PRACTITIONER. THE A SSESSEE HAS SHOWN LONG TERM CAPITAL GAIN OF RS.66,35,931/ - AND CLAIMED DEDUCTION U/S. 54F OF THE ACT. ACCORDING TO THE A O, THE ASSESSEE SOLD PROPERTY IN PLOT NO. 173, MAHATMA HOUSING SOCIETY, KOTHRUD, PUNE VIDE SURRENDER DEED DATED 10 - 09 - 2012 AND PURCHASE D A FLAT IN LAVASA CORPORATION VIDE AGREEMENT OF PURCHASE DEED DATED 22 - 04 - 2010. THE A O OPINED , IN ORDER TO CLAIM DEDUCTION U/S. 54F OF THE ACT THE ASSESSEE H AS TO MAKE INVESTMENTS IN PURCHASING OR CONSTRUCTING RESIDENTIAL HOUSE ONE YEAR BEFORE OR TWO YEA RS AFTER THE DATE ON WHICH THE TRANSFER TOOK PLACE OR WITHIN A PERIOD OF THREE YEARS AFTER THE DATE OF TRANSFER, RESPECTIVELY. WE NOTE THAT THE ASSESSING OFFICER HAS TAKEN THE DATE OF 22 - 04 - 2010 AS PURCHASE AND HELD THE ASSESSEE IS NOT ENTITLED TO CLAIM D EDUCTION AS IT IS NOT THE ONE YEAR BEFORE THE DATE OF SALE OF PROPERTY I.E. 10 - 09 - 2012. 4. THE CONTENTION OF SHRI M.R. SHIRUDE, THE LD. AR IS THAT THE ASSESSEE HAS PAID SUBSTANTIAL AMOUNTS FOR PURCHASE OF FLAT IN LAVASA CORPORATION TO AN EXTENT OF RS. 54,9 7,746/ - FROM 12 - 07 - 2012 TO 06 - 11 - 2013 WHICH IS MORE THAN 50% OF THE SALE CONSIDERATION OF NEW RESIDENTIAL HOUSE AND GOT POSSESSION ON 03 - 08 - 2013 AND IT IS WELL WITHIN TWO YEARS AFTER THE DATE ON WHICH TRANSFER TOOK PLACE. THE LD. AR PLACE D RELIANCE ON THE DECISION OF HONBLE HIGH COURT OF BOMBAY IN THE CASE OF SMT. BEENA K. JAIN REPORTED IN 75 TAXMAN 145 (BOM.) AND SUBMITTED THAT THE MUMBAI BENCHES OF TRIBUNAL IN THE CASE OF BASTIMAL K. JAIN FOLLOWING THE DECISION OF HONBLE HIGH COURT OF B OMBAY HELD THE CLAIM OF DEDUCTION U/S. 54F OF THE ACT IS TO BE RECKONED FROM THE DATE OF HANDING OVER OF THE POSSESSION OF FLAT BY THE BUILDER. IN SUCH CIRCUMSTANCES, WE FIND THE ASSESSEE TRANSFERRED HIS PROPERTY ON 10 - 09 - 2012 AND GOT POSSESSION OF NEW RE SIDENTIAL HOUSE ON 3 ITA NO.313/PUN/2017, A.Y. 2013 - 14 03 - 08 - 2013 WHICH CLEARLY SHOWS THAT THE ASSESSEE MADE INVESTMENTS WITHIN TWO YEARS AFTER THE DATE OF TRANSFER OF OLD PROPERTY. THEREBY IN OUR OPINION THE ASSESSEE IS ENTITLED TO CLAIM DEDUCTION U/S. 54F OF THE ACT AND IMPUGNED ORDER OF THE CIT(A) IS NOT JUSTIFIED AND IT IS SET ASIDE. THUS, ONLY GROUND RAISED BY THE ASSESSEE IS ALLOWED. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH DECEMBER, 2019. SD/ - SD/ - (ANIL CHATURVEDI) (S.S. VISWANETHRA RAVI) ACCOUNTANT MEMBER JUDICIAL MEMBE R / PUNE; / DATED : 16 TH DECEMBER, 2019 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 1, PUNE 4. THE PR. COMMISSIONER OF INCOME TAX - 1, PUNE 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. // // TRU E COPY // / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE