Mohan Singh, Patiala V. ACIT, Patiala

ITA 330/CHANDI/2014

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9837 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 02-07-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 31-03-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Capital asset; Opportunity of being heard; Cost of acquisition; Reason to believe
• Section: 54B; 54F; 142(1); 12A; 148; 54; 2; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 330/CHD/2014 ASSESSMENT YEAR: 2010-11 SHRI MOHAN SINGH, VS THE ACIT, VILLAGE KASIANA, CIRCLE, PO CHAILAILA, PATIALA. DISTT. PATIALA. PAN: CYZPS3259L3 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DEEPAK AGGARWA L RESPONDENT BY : SHRI MANJIT SINGH DATE OF HEARING : 02.07.2015 DATE OF PRONOUNCEMENT : 07.07.2015 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. CIT(APPEALS) PATIALA DATED 29.01.2014 FOR ASSESSMENT YEAR 2010-11. 2. IN THIS APPEAL, ASSESSEE CHALLENGED THE RE-OPENI NG OF THE ASSESSMENT UNDER SECTION 148 OF THE INCOME TAX ACT AND REFUSING TO GRANT STATUTORY EXEMPTION UNDER SEC TION 54B OF THE INCOME TAX ACT. 3. BRIEFLY THE FACTS OF THE CASE ARE THAT DURING TH E PROCESS OF VERIFICATION OF APPLICATION FILED UNDER SECTION 2 12A OF THE ACT BY ONE M/S ASIAN EDUCATION SOCIETY, PATIALA, IT CAME TO THE NOTICE OF ASSESSING OFFICER THAT ASSESSEE HAS SOLD LAND MEASURING 40 KANAL TO THE SO CIETY DURING THE YEAR UNDER CONSIDERATION FOR RS. 1,55,20,000/-. THE ASSESSEE HAS NOT FILED THE RETU RN FOR ASSESSMENT YEAR 2010-11 UNDER APPEAL BEFORE THE DUE DATE I.E. 31.07.2010. ACCORDINGLY, NOTICE UNDER SE CTION 142(1) OF THE ACT WAS ISSUED TO THE ASSESSEE ON 25.08.2010 TO FILE HIS RETURN OF INCOME ON OR BEFOR E 31.08.2010. THE ASSESSEE VIDE REPLY DATED 31.08.20 10 SUBMITTED THAT HE IS NOT LIABLE TO INCOME TAX AS HE IS HAVING ONLY AGRICULTURE INCOME AND THAT LAND SOLD I S SITUATED MORE THAN 8 KMS FROM THE MUNICIPAL LIMIT. THEREAFTER, THE ASSESSING OFFICER ISSUED NOTICE UND ER SECTION 148 OF THE ACT TO THE ASSESSEE ON 06.09.201 0. IN RESPONSE, THE ASSESSEE FILED RETURN OF INCOME ON 05.10.2010 AND DECLARED TOTAL INCOME AT RS. 16,04,6 80/-. THE CASE WAS SELECTED FOR SCRUTINY. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE CLAIMED THAT DUE DATE FOR FILING OF THE RE TURN WAS 15.10.2010. IN THIS CONNECTION, ASSESSEE ALSO SUBMITTED THAT THE CASE OF THE ASSESSEE FALLS UNDER SECTION 44AB OF THE ACT AS HE IS ALSO DOING THE BUS INESS OF EARTH FILLING AND CIVIL CONTRACTOR. THE ASSESSIN G OFFICER HELD THAT NO DOCUMENTARY EVIDENCE IN THIS REGARD HA S BEEN FILED AND IT WAS AFTER THOUGHT, AFTER ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT. FURTHER, THE ASSESSE E IN 3 REPLY TO THE NOTICE UNDER SECTION 142(1) OF THE ACT ALSO STATED THAT HE WAS MERELY AN AGRICULTURIST. HOWEVE R, EXPLANATION OF THE ASSESSEE WAS NOT ACCEPTED. THE ASSESSEE COMPUTED THE CAPITAL GAINS ON THE LAND BY DEBITING THE COST OF THE LAND AT RS. 40,000/- PER K ANAL. IN THIS CONNECTION, ASSESSING OFFICER AFTER MAKING ENQUIRIES FROM TEHSILDAR AND ON THE BASIS OF ALL FO UR DIFFERENT REGISTRATIONS OF SIMILAR TYPE OF LAND, TO OK AVERAGE VALUE OF THE LAND IN 1981 AT RS. 1835/- PER KANAL. THUS, THE COST OF ACQUISITION WAS COMPUTED BY THE ASSESSING OFFICER AT RS. 4,63,129/- AND CAPITAL GAIN WAS COMPUTED AT RS. 1,50,56,871/-. THE CLAIM OF ASSESSEE OF EXEMPTION UNDER SECTION 54B FOR MAKING DEPOSIT IN THE BANK AND FOR INVESTMENT IN LAND WAS ALSO DISALLOWED. 5. THE ASSESSEE CHALLENGED THE ORDER OF THE ASSESSI NG OFFICER BEFORE LD. CIT(APPEALS) AND CHALLENGED RE-O PENING OF THE ASSESSMENT UNDER SECTION 148 OF THE INCOME T AX ACT ON THE GROUND THAT DUE DATE OF FILING OF THE RE TURN WAS 15.10.2010, THEREFORE NOTICE UNDER SECTION 148 OF THE ACT ISSUED BEFORE THAT DATE WAS NOT VALID. THE LD. CIT(APPEALS) FOUND THAT ASSESSEE HAS CONCOCTED THE STORY OF BUSINESS ACTIVITY ON WHICH NO DOCUMENTARY EVIDEN CE WAS FILED. INITIALLY ASSESSEE CLAIMED HE WAS MERE AGRICULTURIST AND LAND IN QUESTION FALLS OUTSIDE TH E MUNICIPAL LIMIT. IN THE ABSENCE OF ANY EVIDENCE ON RECORD TO SUPPORT CLAIM OF ASSESSEE OF BUSINESS ACT IVITIES, LD. CIT(APPEALS) WAS OF THE VIEW THAT THERE IS NO I LLEGALITY 4 IN ISSUING THE NOTICE UNDER SECTION 148 OF THE ACT. THE ASSESSEE ALSO CHALLENGED THE JURISDICTION BUT IT WA S ALSO DECIDED AGAINST THE ASSESSEE AND THIS GROUND WAS DECIDED AGAINST THE ASSESSEE. 6. AS REGARDS EXEMPTION UNDER SECTION 54B OF THE AC T, THE ASSESSEE SUBMITTED THAT HE HAD DEPOSITED A SUM OF RS. 50 LACS WITH PUNJAB NATIONAL BANK BRANCH UNDER CGAS BEFORE DUE DATE OF 15.10.2010. IN THIS CONNEC TION, ASSESSING OFFICER NOTED THAT BENEFIT OF THE SCHEME CAN ONLY BE AVAILED IF THE AMOUNT IS DEPOSITED UNDER CG AS BEFORE FILING OF THE INCOME TAX RETURN UNDER SECTIO N 139(1) I.E. 31.07.2010. SINCE THE AMOUNT WAS DEPOS ITED ON 14.10.2010 THEREFORE NO BENEFIT CAN BE GIVEN TO THE ASSESSEE. 7. THE ASSESSEE FURTHER SUBMITTED THAT RS. 50,00,00 0/- HAS BEEN ADVANCED TO SHRI AJMER SINGH AND OTHERS AN D CLAIMED EXEMPTION UNDER SECTION 54B OF THE ACT. HOWEVER, ASSESSING OFFICER NOTED THAT AGREEMENT TO PURCHASE THE LAND FROM SHRI AJMER SINGH ETC. WAS EXECUTED BEFORE 01.12.2009 WHILE THE FIRST SALE OF LAND IS ON 01.12.2012. THE ASSESSEE DID NOT GET POSSESSION OF THE SAME LAND BEFORE SALE OF THE LAND, THEREFORE, T HIS CLAIM OF ASSESSEE WAS ALSO DISALLOWED. 8. THE LD. CIT(APPEALS), CONSIDERING THE FACTS OF T HE CASE FOUND THAT SUM OF RS. 50 LACS HAVE BEEN DEPOSI TED AFTER DUE DATE OF FILING OF THE RETURN I.E. 31.07.2 010 AND IN ANY CASE, AFTER FILING OF THE RETURN ON 05.10.20 10. THE 5 ADVANCE OF RS. 50 LACS IS ALSO MADE WITHOUT TAKING POSSESSION OF THE LAND, THEREFORE, THESE GROUNDS OF APPEAL OF THE ASSESSEE WERE DISMISSED. 9. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECOR D. AS REGARDS THE RE-OPENING OF THE ASSESSMENT UNDER SECT ION 148 IS CONCERNED, THE ASSESSEE RAISED THE ISSUE BEF ORE LD. CIT(APPEALS) THAT DUE DATE FOR FILING OF THE RETURN WAS 15.10.2010, THEREFORE, ISSUE OF NOTICE UNDER SECTIO N 148 OF THE ACT ON 06.09.2010 WAS NOT VALID. THE LD. CIT(APPEALS) FOUND THAT THE ASSESSEE HAS CONCOCTED STORY OF ENGAGING IN BUSINESS ACTIVITY FOR WHICH NO DOCUMENTARY EVIDENCE WAS FILED FOR DOING ANY BUSINE SS ACTIVITY. THE ASSESSEE INITIALLY CONTENDED THAT HE IS MERELY AGRICULTURIST AND THE LAND IN QUESTION FALLS OUTSIDE THE MUNICIPAL LIMIT, THEREFORE NO CAPITAL G AIN ARISES. THEREFORE, THE STORY PROPOUNDED BY THE ASSE SSEE WAS NOT PROVED THROUGH ANY EVIDENCE OR MATERIAL ON RECORD. THE ASSESSING OFFICER, WHILE RECORDING THE REASONS FOR RE-OPENING OF THE ASSESSMENT NOTED IN T HE REASONS THAT HE HAS REASON TO BELIEVE THAT CAPITAL GAINS ON SALE OF LAND HAS ESCAPED ASSESSMENT. THE FACTS AND CIRCUMSTANCES CLEARLY SHOW THAT ASSESSING OFFICER W AS JUSTIFIED IN RECORDING REASONS FOR RE-OPENING OF TH E ASSESSMENT AND ISSUING NOTICE AGAINST THE ASSESSEE. DURING THE COURSE OF ARGUMENTS, LD. COUNSEL FOR THE ASSESSEE DID NOT ARGUE ON THIS GROUND AND H AVE 6 NOT CONTRIBUTED ANYTHING TO CHALLENGE THE FINDINGS OF THE AUTHORITIES BELOW FOR INITIATING THE PROCEEDINGS UN DER SECTION 148 OF THE ACT. IN THE ABSENCE OF ANY CHAL LENGE TO THE RE-OPENING OF THE ASSESSMENT UNDER SECTION 1 48 OF THE ACT, THIS GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 10. AS REGARDS THE CLAIM OF ASSESSEE FOR EXEMPTION UNDER SECTION 54B OF THE ACT, IT WOULD BE RELEVANT TO REPRODUCE SECTION 54B OF THE INCOME TAX ACT AS UNDE R : 54B. [(1)] [SUBJECT TO THE PROVISIONS OF SUB-SECTION ( 2), WHERE THE CAPITAL GAIN ARISES] FROM THE TRANSFER OF A CAPITAL ASSET B EING LAND WHICH, IN THE TWO YEARS IMMEDIATELY PRECEDING THE DATE ON WHICH T HE TRANSFER TOOK PLACE, WAS BEING USED BY [THE ASSESSEE BEING AN INDIVIDUAL OR HIS PARENT, OR A HINDU UNDIVIDED FAMILY] FOR AGRICULTURAL PURPOSES [(HEREINAFTER REFERRED TO AS THE ORIGINAL ASSET)], AND THE ASSESSEE HAS, WITH IN A PERIOD OF TWO YEARS AFTER THAT DATE, PURCHASED ANY OTHER LAND FOR BEING USED FOR AGRICULTURAL PURPOSES, THEN, INSTEAD OF THE CAPITAL GAIN BEING C HARGED TO INCOME-TAX AS INCOME OF THE PREVIOUS YEAR IN WHICH THE TRANSFER T OOK PLACE, IT SHALL BE DEALT WITH IN ACCORDANCE WITH THE FOLLOWING PROVISI ONS OF THIS SECTION, THAT IS TO SAY, (I) IF THE AMOUNT OF THE CAPITAL GAIN IS GREATER TH AN THE COST OF THE LAND SO PURCHASED (HEREINAFTER REFERRED TO AS THE NEW ASSET ), THE DIFFERENCE BETWEEN THE AMOUNT OF THE CAPITAL GAIN AND THE COST OF THE NEW ASSET SHALL BE CHARGED UNDER SECTION 45 AS THE INCOME OF THE PREVI OUS YEAR; AND FOR THE PURPOSE OF COMPUTING IN RESPECT OF THE NEW ASSET AN Y CAPITAL GAIN ARISING FROM ITS TRANSFER WITHIN A PERIOD OF THREE YEARS OF ITS PURCHASE, THE COST SHALL BE NIL; OR (II) IF THE AMOUNT OF THE CAPITAL GAIN IS EQUAL TO OR LESS THAN THE COST OF THE NEW ASSET, THE CAPITAL GAIN SHALL NOT BE CHARGED UN DER SECTION 45; AND FOR THE PURPOSE OF COMPUTING IN RESPECT OF THE NEW ASSE T ANY CAPITAL GAIN ARISING FROM ITS TRANSFER WITHIN A PERIOD OF THREE YEARS OF ITS PURCHASE, THE COST SHALL BE REDUCED, BY THE AMOUNT OF THE CAPITAL GAIN.] 7 [(2) THE AMOUNT OF THE CAPITAL GAIN WHICH IS NOT U TILISED BY THE ASSESSEE FOR THE PURCHASE OF THE NEW ASSET BEFORE THE DATE OF FU RNISHING THE RETURN OF INCOME UNDER SECTION 139, SHALL BE DEPOSITED BY HIM BEFORE FURNISHING SUCH RETURN [SUCH DEPOSIT BEING MADE IN ANY CASE NOT LAT ER THAN THE DUE DATE APPLICABLE IN THE CASE OF THE ASSESSEE FOR FURNISHI NG THE RETURN OF INCOME UNDER SUB-SECTION (1) OF SECTION 139] IN AN ACCOUNT IN ANY SUCH BANK OR INSTITUTION AS MAY BE SPECIFIED IN, AND UTILISED IN ACCORDANCE WITH, ANY SCHEME WHICH THE CENTRAL GOVERNMENT MAY, BY NOTIFIC ATION IN THE OFFICIAL GAZETTE, FRAME IN THIS BEHALF AND SUCH RETURN SHALL BE ACCOMPANIED BY PROOF OF SUCH DEPOSIT; AND, FOR THE PURPOSES OF SUB-SECTI ON (1), THE AMOUNT, IF ANY, ALREADY UTILISED BY THE ASSESSEE FOR THE PURCHASE O F THE NEW ASSET TOGETHER WITH THE AMOUNT SO DEPOSITED SHALL BE DEEMED TO BE THE COST OF THE NEW ASSET : PROVIDED THAT IF THE AMOUNT DEPOSITED UNDER THIS SUB-SECTIO N IS NOT UTILISED WHOLLY OR PARTLY FOR THE PURCHASE OF THE NEW ASSET WITHIN THE PERIOD SPECIFIED IN SUB-SECTION (1), THEN, (I) THE AMOUNT NOT SO UTILISED SHALL BE CHARGED UND ER SECTION 45 AS THE INCOME OF THE PREVIOUS YEAR IN WHICH THE PERIOD OF TWO YEARS FROM THE DATE OF THE TRANSFER OF THE ORIGINAL ASSET EXPIRES; AND (II) THE ASSESSEE SHALL BE ENTITLED TO WITHDRAW SUC H AMOUNT IN ACCORDANCE WITH THE SCHEME AFORESAID. 11. THE ASSESSEE CLAIMED THAT HE HAS DEPOSITED RS.5 0 LACS WITH PUNJAB NATIONAL BANK UNDER CAPITAL GAIN ACCOUNTS SCHEME ON 14.10.2010. COPY OF THE SAME I S FILED AT PAGE 73 OF THE PAPER BOOK. THE AUTHORITIE S BELOW DENIED THE CLAIM OF ASSESSEE ON THE REASON THAT THE AMOUNT WITH PUNJAB NATIONAL BANK WAS NOT DEPOSITED IN THE SCHEME BEFORE FILING OF THE INCOME TAX RETURN U NDER SECTION 139(1) I.E. 31.07.2010. HOWEVER, IT IS A F ACT THAT THE ASSESSEE FILED RETURN OF INCOME ON 05.10.2010. HON'BLE JURISDICTIONAL PUNJAB & HARYANA HIGH COURT IN 8 THE CASE OF CIT VS MS. JAGRITY AGGARWAL 339 ITR 610 HELD AS UNDER : SUB-S. (4 OF S. 139 IS IN FACT, A PROVISO TO SUB-S. ( 1) AND PROVIDES FOR EXTENSION OF PERIOD OF DUE DATE FOR FILING THE RET URN IN CERTAIN CIRCUMSTANCES AND, THEREFORE, EXEMPTION UNDER S. 54 W AS ALLOWABLE WHERE THE ASSESSEE HAD PURCHASED NEW PROP ERTY BEFORE THE EXTENDED DUE DATE OF FILING O RETURN AS PER S. 139(4) AND FILED RETURN WITHIN SUCH EXTENDED TIME. 12. FROM THE FACTS OF THE CASE IN THE LIGHT OF TH E ABOVE DECISION IN THE CASE OF MS. JAGRITI AGGARWAL (SUPRA ) IT IS CLEAR THAT IN THE CASE OF THE ASSESSEE, THE PERIOD UNDER SECTION 139(4) WOULD BE EXPIRING ON 31.03,.2011. SI NCE THE ASSESSEE MADE DEPOSIT OF RS. 50 LACS UNDER CAPI TAL GAIN ACCOUNTS SCHEME ON 14.10.2010. THEREFORE, IT WAS DEPOSITED WITHIN THE PERIOD PRESCRIBED UNDER SECTIO N 139(4) OF THE ACT. THEREFORE, ASSESSEE WOULD BE EN TITLED FOR EXEMPTION UNDER SECTION 54B OF THE INCOME TAX A CT IN RESPECT OF RS. 50 LACS DEPOSITED WITH PUNJAB NATION AL BANK. THIS GROUND OF APPEAL OF THE ASSESSEE IS ACCORDINGLY, ALLOWED. THE ASSESSING OFFICER IS DIR ECTED TO GIVE RELIEF TO THE ASSESSEE ACCORDINGLY. 13. AS REGARDS THE ADVANCE OF RS. 50 LACS MADE TO SHRI AJMER SINGH AND OTHERS ON WHICH ASSESSEE CLAIMED EXEMPTION UNDER SECTION 54B, ASSESSEE EXPLAINED BEF ORE ASSESSING OFFICER THAT ON DATED 22.09.2009, AGREEME NT TO SELL HAS BEEN EXECUTED FOR SELLING THE LAND TO ASIA N EDUCATIONAL SOCIETY. IT IS FURTHER EXPLAINED THAT ON 9 30.11.2009 (PB-89) AGREEMENT TO SELL/PURCHASE HAVE BEEN EXECUTED FOR THE PURCHASE OF LAND MEASURING 57 BIGAS 8 BISWA AT VILLAGE KHERI GILLAN, DISTT. SANGR UR WITH S/SHRI AJMER SINGH, GURJANT SINGH AND HARBANS SINGH . IT WAS ALSO EXPLAINED BEFORE ASSESSING OFFICER THAT ON 01.12.2009, THE LAND MEASURING 24 KANAL WAS SOLD AT RS. 1,04,40,000/- TO ASIAN EDUCATIONAL SOCIETY BY REGIS TERED SALE DEED DATED 01.12.2009. IT WAS FURTHER EXPLAIN ED THAT THE LAND MEASURING 8 KANAL WAS SOLD AT RS. 34,80,000/- TO ASIAN EDUCATIONAL SOCIETY BY REGISTE RED SALE DEED DATED 01.12.2009. IT WAS EXPLAINED THAT ON 08.03.2010, LAND MEASURING 8 KANAL WAS SOLD AT RS.16,00,000/- TO ASIAN EDUCATIONAL SOCIETY BY REGISTERED SALE DEED DATED 08.03.2009. THUS, TOTAL SALE CONSIDERATION OF THE AFORESAID THREE SALE DEEDS WER E AMOUNTING TO RS. 1,55,20,000/-. IT WAS ALSO EXPLAI NED THAT THE PURCHASE OF LAND MEASURING 57 BIGAS 8 BISW A WAS TO BE FINALIZED ON 15.05.2010 BEFORE SUB REGIST RAR, BHAWANIGARH. HOWEVER, THE SELLER NOT TURNED UP FOR THE AFORESAID REGISTRATION WHEREAS THE ASSESSEE MARKED HIS PRESENCE BEFORE THE AUTHORITY AND THE MATTER IS NOW PENDING ADJUDICATION BEFORE CIVIL JUDGE, SR. DIVISI ON, SANGRUR. 13(I) THE LD. COUNSEL FOR THE ASSESSEE REFERRED TO COPY OF THE NOTICE (PB-78 & 79) ADDRESSED TO THE SELLER FOR SPECIFIC PERFORMANCE. PB-81 TO 87 ARE COPY OF THE P LAINT FOR FILING SUIT FOR SPECIFIC PERFORMANCE AGAINST SE LLERS AND 10 THE PB-88 IS THE RESTRAINT ORDER PASSED BY THE CIVI L JUDGE AGAINST THE SELLER FROM TRANSFERRING, ALIENAT ING OR MORTGAGING THE PROPERTY IN QUESTION. THE LD. COUNS EL FOR THE ASSESSEE, THEREFORE, SUBMITTED THAT SINCE ASSES SEE MADE INVESTMENT IN THE PROPERTY WITHIN TIME AND AGREEMENT TO SELL WAS EXECUTED ON 22.09.2009 FOR SA LE TO ASIAN EDUCATIONAL SOCIETY, THEREFORE, THIS SHOULD B E CONSIDERED FROM THE DATE OF AGREEMENT TO SELL DATED 22.09.2009. HE HAS RELIED UPON DECISION OF THE HON 'BLE SUPREME COURT IN THIS CASE OF SHRI SANJEEV LAL ETC. VS CIT 365 ITR 389 (S.C) IN WHICH IT WAS HELD AS UNDER : WHERE THE ASSESSEE'S ENTERED INTO AGREEMENT TO SEL L RESIDENTIAL HOUSE ON 27.12.2002 AND RECEIVED EARNES T MONEY, AND HAD ALSO PURCHASED OTHER RESIDENTIAL HOU SE WITHIN ONE YEAR, HOWEVER COULD EXECUTE SALE DEED ON LY ON 24.09.2004 ON ACCOUNT OF LITIGATION AND RESTRAIN OR DER PASSED BY COURT, THE ASSESSES WERE ENTITLED TO RELIEF U/S 54 IN RESPECT OF LONG TERM CAPITAL GAIN WHICH THEY HAD EARNED IN PURSUANCE OF TRANSFER OF THEIR RESIDENTIA L PROPERTY AND USED FOR PURCHASE OF A NEW ASSET/RESID ENTIAL HOUSE. 14. HE HAS ALSO RELIED UPON DECISION OF KARNATA KA HIGH COURT IN THIS CASE OF CIT & ANR VS K. RAMACHAN DRA RAO 120 DTR 72 IN WHICH IT WAS HELD AS UNDER : CONCLUSION : CONTENTION THAT THE INVESTMENT MADE IN PUTTING UP A RESIDENTIAL CONSTRUCTION ON A SITE ALREADY OWNED BY THE ASSESSEE IS NOT ELIGIBLE FOR EXEMPTION UNDER S. 54F HA S NO SUBSTANCE: INVESTMENTS MADE BY THE ASSESSEE IN THE CONSTRUCTION OF RESIDENTIAL HOUSE ON THE SITE WHICH W AS ALREADY OWNED BY HIM WITHIN A PERIOD OF ONE YEAR PRIOR TO T HE DATE OF 11 TRANSFER OF THE ORIGINAL ASSET OR WITHIN A PERIOD OF THREE YEARS AFTER THAT DATE ARE ELIGIBLE FOR EXEMPTION UNDER S. 54F. 15. THE LD. DR, HOWEVER, RELIED UPON ORDERS OF TH E AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE M ADE FIRST SALE IN DECEMBER, 2009, THEREFORE, AGREEMENT TO PURCHASE DATED 30.11.2009 IS PRIOR TO THE DATE OF T HE SALE AND NO POSSESSION WAS TAKEN, THEREFORE, CLAIM OF ASSESSEE WAS CORRECTLY DISALLOWED. 16. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THE MATTER REQUIRES RE-CONSIDERATION AT THE LEVEL OF THE ASSESSING OFFICER. THE ASSESSEE HAS P LEADED ALL THE ABOVE FACTS BEFORE THE ASSESSING OFFICER BU T THE ASSESSING OFFICER HAS NOT GIVEN ANY FINDING ON THE SAME. THE ASSESSING OFFICER MERELY PRESUMED THAT SINCE SA LE DEED WAS ENTERED INTO ON 01.12.2009 WITH ASIAN EDUCATIONAL SOCIETY AND AGREEMENT TO PURCHASE WAS P RIOR TO THAT DATE AND THE ASSESSEE DID NOT GET POSSESSIO N OF THE SAME, THEREFORE CLAIM OF ASSESSEE NOT FOUND JUS TIFIED. THE ASSESSEE, HOWEVER, EXPLAINED THE REASONS WHY TH E POSSESSION COULD NOT BE TAKEN BECAUSE THE SELLER HA S NOT TURNED UP FOR HANDING OVER POSSESSION TO THE ASSESS EE OR FOR COMPLETION OF THE SALE. THE CASE LAW RELIED UP ON BY THE ASSESSEE SUPPORT THE CASE OF THE ASSESSEE THAT IT MAY BE A CASE OF TRANSFER UNDER COMPELLING REASONS AND THE LD. CIT(APPEALS) ALSO WITHOUT GIVING ANY REASONS FO R DECISION, REJECTED THE CLAIM OF ASSESSEE. SIMILARLY , ASSESSEE ALSO FAILED TO EXPLAIN THAT AGREEMENT TO S ELL WAS 12 EXECUTED IN NAME OF BALJIT SINGH AND LITIGATION IS ALSO IN NAME OF BALJIT SINGH AND ASSESSEE HAS TO CORRELATE ALL FACTS. THEREFORE, CONSIDERING THE FACTS AND CIRCUMS TANCES AND THE DOCUMENTARY EVIDENCE BROUGHT ON RECORD IN T HE LIGHT OF THE ABOVE DECISION, WE ARE OF THE VIEW THE MATTER REQUIRES RE-CONSIDERATION AT THE LEVEL OF THE ASSES SING OFFICER FOR GIVING FACTUAL FINDING OF FACT ON THE M ATTER AND ISSUE. WE, ACCORDINGLY, SET ASIDE THE ORDER OF AUTHORITIES BELOW AND RESTORE THIS ISSUE TO THE FIL E OF ASSESSING OFFICER WITH DIRECTION TO RE-DECIDE THE M ATTER IN ISSUE BY GIVING SPECIFIC FINDING OF FACT IN THE ASSESSMENT ORDER AND THE ASSESSING OFFICER SHALL GI VE REASONABLE SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSING OFFICER SHALL DECIDE THE IS SUE STRICTLY IN ACCORDANCE WITH LAW. 17. IN THE RESULT, THIS GROUND OF APPEAL OF THE ASS ESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 18. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH JULY,2015. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 7 TH JULY,2015. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT, CHANDIGARH