ACIT Central Circle 1(1), CHENNAI V. Dr.S.Sankaralingam, CHENNAI

ITA 3185/CHNY/2017

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3982 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 26-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR M SRINIVASA RAO
• Assessee Lawyers: K G RAGHUNATH
• Keywords: Revised return
• Section: 54F; 54

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI . . . , . !'# ! , % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.3185/CHNY/2017 ( )( / ASSESSMENT YEAR : 2012-13 THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1(1), CHENNAI - 600 034. V. DR. S. SANKARALINGAM, RAJ PARIS VILLA, OLD NO.74, NEW NO.56, NEW AVADI ROAD, KILPAUK, CHENNAI - 600 010. PAN : AAAPS 7638 A (+,/ APPELLANT) (-.+,/ RESPONDENT) +, / 0 / APPELLANT BY : DR. M. SRINIVASA RAO, CIT -.+, / 0 / RESPONDENT BY : SHRI K.G. RAGHUNATH, ADVOCATE 1 / 2% / DATE OF HEARING : 16.08.2018 3') / 2% / DATE OF PRONOUNCEMENT : 05.10.2018 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -18, CHENN AI, DATED 14.09.2017 AND PERTAINS TO ASSESSMENT YEAR 2012-13. 2 I.T.A. NO.3185/CHNY/17 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS DISAL LOWANCE MADE BY THE ASSESSING OFFICER UNDER SECTION 54F OF THE I NCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). 3. DR. M. SRINIVASA RAO, THE LD. DEPARTMENTAL REPRE SENTATIVE, SUBMITTED THAT THERE WAS SEARCH IN THE PREMISES OF THE ASSESSEE. DURING THE YEAR UNDER CONSIDERATION, ACCORDING TO T HE LD. D.R., THE ASSESSEE SOLD A LANDED PROPERTY AT DOOR NO.99, NEW AVADI ROAD TO M/S J.K. HOLDING COMPANY PVT. LTD. FOR A TOTAL SALE CONSIDERATION OF 9 CRORES. HOWEVER, THE SALE DEED WAS REGISTERED DI SCLOSING THE SALE CONSIDERATION ONLY AT 6 CRORES. THE BALANCE 3 CRORES WAS RECEIVED BY THE ASSESSEE IN CASH. HOWEVER, THE BAL ANCE WAS DEPOSITED IN THE BANK ACCOUNT IN THE NAME OF THE CH ILDREN OF THE ASSESSEE. REFERRING TO THE ORDER OF THE ASSESSMENT , THE LD. D.R. SUBMITTED THAT THE ASSESSEE CLAIMED THE COST OF ACQ UISITION AT 1,04,31,924/- IN THE YEAR 2006-07. COST OF CONSTRU CTION WAS CLAIMED TO THE EXTENT OF 2,28,91,064/-. THE LONG TERM CAPITAL GAINS WAS 6,71,08,935/-. THE ASSESSEE CLAIMED EXEMPTION TO T HE EXTENT OF 6,71,08,935/- AND HAS NOT OFFERED ANY CAPITAL GAIN FOR TAXATION. ACCORDING TO THE LD. D.R., THE ASSESSEE HAS NOT CON STRUCTED THE HOUSE WITHIN A PERIOD OF THREE YEARS AND ALSO HAS N OT DEPOSITED IN 3 I.T.A. NO.3185/CHNY/17 CAPITAL GAINS ACCOUNT. THEREFORE, ACCORDING TO THE LD. D.R., THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION UNDER SECTIO N 54F OF THE ACT. MOREOVER, ACCORDING TO THE LD. D.R., THE ASSESSEE C LAIMED IN THE RETURN OF INCOME ONLY DEDUCTION UNDER SECTION 54 OF THE ACT. THE CIT(APPEALS), HOWEVER, GRANTED DEDUCTION UNDER SECT ION 54F OF THE ACT. REFERRING TO THE ASSESSMENT ORDER, THE LD. D .R. SUBMITTED THAT THE ASSESSEE HAS NOT INDICATED THE PROVISION UNDER WHICH THE ASSESSEE WAS CLAIMING DEDUCTION. THE ASSESSEE CLAI MED DEDUCTION UNDER SECTION 54B/54D/54EC/54F/54G/54GA. THE ASSESSEE HAS NOT INDICATED THE SECTION UNDER WHICH THE CLAIM WAS MADE. NO REVISED RETURN WAS ALSO FILED. THEREFORE , ACCORDING TO THE LD. D.R., THE CIT(APPEALS) IS NOT JUSTIFIED IN ALLO WING THE CLAIM OF THE ASSESSEE. 4. ON THE CONTRARY, SHRI K.G. RAGHUNATH, THE LD.COU NSEL FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSEE HAS DEPOSITED 1.40 CRORES TOWARDS LOAN ACCOUNT AND THE BALANCE OF 4.60 CRORES WAS DEPOSITED IN THE CAPITAL GAIN SCHEME WHICH WAS CONF IRMED BY STATE BANK OF INDIA. ACCORDING TO THE LD. COUNSEL, THE B ALANCE AMOUNT OF 2,99,50,000/- WAS DEPOSITED IN STATE BANK OF INDIA IN THE NAME OF THE ASSESSEE, HIS WIFE AND CHILDREN. BEFORE DUE DA TE FOR FILING OF THE 4 I.T.A. NO.3185/CHNY/17 RETURN OF INCOME, ACCORDING TO THE LD. COUNSEL, THE DEPARTMENT SEIZED THE AMOUNT BY WITHDRAWING THE SAME FROM BANK ACCOUNT, THEREFORE, THE MONEY WAS WITH THE DEPARTMENT. THE ASSESSEE WAS PHYSICALLY PREVENTED FROM DEPOSITING THE SAME IN TH E CAPITAL GAINS ACCOUNT, HENCE, THE CIT(APPEALS) ALLOWED THE CLAIM OF THE ASSESSEE. THE LD.COUNSEL FURTHER SUBMITTED THAT TH E DUE DATE FOR DEPOSITING IN CAPITAL GAINS ACCOUNT IS THE DUE DATE FOR RETURN OF INCOME UNDER SECTION 139(1) OF THE ACT. BEFORE THE DUE DATE, THE MONEY WAS TAKEN BY THE DEPARTMENT. HENCE, ACCORDIN G TO THE LD. COUNSEL, THE ASSESSEE CANNOT BE BLAMED FOR DEPOSITI NG THE MONEY IN CAPITAL GAINS ACCOUNT. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE PROPERTY WAS SOLD FOR 9 CRORES. THE SALE CONSIDERATION DISCLOSED IN THE SALE DEED WAS ONLY 6 CRORES. THE ASSESSEE APPARENTLY RECEIVED SALE CONSIDERATION TO THE EXTENT OF 3 CRORES IN CASH. HOWEVER, HE DEPOSITED THE SAME IN S.B. ACCOUNT IN T HE NAMES OF SELF, HIS WIFE AND CHILDREN. IT IS NOT IN DISPUTE THAT 1.40 CRORES WAS USED FOR REPAYMENT OF LOAN AND 4.60 CRORES WAS DEPOSITED IN CAPITAL GAINS ACCOUNT. THE BALANCE AMOUNT TO THE E XTENT OF 5 I.T.A. NO.3185/CHNY/17 2,99,50,000/- WAS DEPOSITED IN STATE BANK OF INDIA IN THE NAME OF ASSESSEE, HIS WIFE AND CHILDREN AND THE SAME WAS TA KEN OVER BY THE DEPARTMENT BEFORE THE DUE DATE FOR FILING OF RETURN OF INCOME. THEREFORE, AS RIGHTLY SUBMITTED BY THE LD.COUNSEL F OR THE ASSESSEE, THE ASSESSEE WAS PREVENTED FROM DEPOSITING THE MONE Y IN THE CAPITAL GAINS ACCOUNT. THE TOTAL CAPITAL GAIN IS 6,71,08,935/-. HENCE, CONSIDERING THE DEPOSIT OF 4.60 CRORES IN CAPITAL GAINS ACCOUNT AND THE MONEY TAKEN BY THE DEPARTMENT TO TH E EXTENT OF 2,99,50,000/-, THIS TRIBUNAL IS OF THE CONSIDERED O PINION THAT THE CIT(APPEALS) HAS RIGHTLY ALLOWED THE CLAIM OF THE A SSESSEE UNDER SECTION 54F OF THE ACT. 6. THE REVENUE HAS ALSO RAISED AN OBJECTION IN RESP ECT OF FAILURE OF THE ASSESSEE TO MAKE A SPECIFIC CLAIM UN DER SPECIFIC PROVISION. NO DOUBT, THE ASSESSEE HAS NOT MADE ANY SPECIFIC CLAIM. HOWEVER, HE CLAIMED EXEMPTION UNDER SECTION 54 OF T HE ACT IN THE RETURN OF INCOME FILED BY HIM. THE ASSESSEE HAS NO T INDICATED THE SPECIFIC PROVISION. THE RETURN OF INCOME CLEARLY S HOWS THAT THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 54B/54D/54 EC/ 54F/54G/54GA. THIS TRIBUNAL IS OF THE CONSIDERED O PINION THAT THAT THE PROVISIONS OF SECTION 54 AND 54F OF THE ACT ARE BENEFICIAL 6 I.T.A. NO.3185/CHNY/17 PROVISIONS. MERELY BECAUSE THE ASSESSEE HAS NOT MA DE ANY SPECIFIC REFERENCE, THAT CANNOT BE A REASON TO DISA LLOW THE CLAIM OF THE ASSESSEE. IT IS NOT A CASE OF THE REVENUE THAT THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION UNDER SECTION 54F OF THE ACT. THEREFORE, MERE NON-REFERENCE ABOUT SPECIFIC SECTION UNDER WHI CH THE ASSESSEE IS MAKING CLAIM CANNOT BE A REASON TO DISA LLOW THE CLAIM OF THE ASSESSEE. THEREFORE, THIS TRIBUNAL DO NOT F IND ANY REASON TO INTERFERE WITH THE ORDER OF THE LOWER AUTHORITY AND ACCORDINGLY THE SAME IS CONFIRMED. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE COURT ON 5 TH OCTOBER, 2018 AT CHENNAI. SD/- SD/- (. !'# ! ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 5 TH OCTOBER, 2018. KRI. 7 I.T.A. NO.3185/CHNY/17 / -267 87)2 /COPY TO: 1. +, /APPELLANT 2. -.+, /RESPONDENT 3. 1 92 () /CIT(A)-18, CHENNAI-34 4. PRINCIPAL CIT, CENTRAL 1, CHENNAI 5. 7: -2 /DR 6. ( ; /GF.