Shri Kishan Dutt, New Delhi V. ITO, New Delhi

ITA 331/DEL/2011

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0172 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 23-03-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 20-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUSHA KHURANA
• Keywords: Opportunity of being heard
• Section: 54B; 54F; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D NEW DELHI) BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO.331 /DEL/2011 ASSESSMENT YEAR : 2005-06 SHRI KISHAN DUTT, ITO, VILLAGE & POST SMALKHA, WARD-25 (4), NEW DELHI. V. NEW DELHI. (APPELLANT) (RESPONDENT) PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO.AMIPD AMIPD AMIPD AMIPD- -- -3603 3603 3603 3603- -- -L LL L APPELLANT BY : SHRI GAUTAM JAIN, C.A. RESPONDENT BY : MS. ANUSHA KHURANA, SR. DR. ORDER PER A.K. GARODIA, AM: THIS IS AN ASSESSEE'S APPEAL FILED AGAINST THE ORDER OF LD CIT(A)- VIII, NEW DELHI DATED 2.11.2010 FOR ASSESSMENT YEAR 200 5-06. 2. GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER:- 1.THAT THE LD CIT(A) HAS ERRED BOTH ON FACTS AND IN L AW IN NOT ACCEPTING THE CLAIM OF DEDUCTION OF `.7,90,000/- U/ S 54F OF THE ACT. 1.1.THAT THE LD CIT(A) HAS NOT ALLOWED THE CLAIM OF DEDUCTION ON MISCONCEPTION THAT APPELLANT HAD CLAIMED DEDUCTION U /S 54B OF PAGE 2 OF 4 ITA NO331/DEL/11 THE ACT, WHEN NO SUCH CLAIM OF DEDUCTION WAS MADE BY THE APPELLANT. 1.2. THAT THE LD CIT(A) WHILE NOT ALLOWING THE CLAI M OF THE APPELLANT, HAS OVER-LOOKED THE SUBMISSIONS MADE BY THE APPELLANT AND DOCUMENTARY EVIDENCE FILED TO SUPPORT THE CLAIM OF DEDUCTION U/S 54F OF THE ACT. IN FACT, HAVING ACCEPT ED THAT, APPELLANT HAD CONSTRUCTED A RESIDENTIAL HOUSE, THE LEA RNED CIT(A) OUGHT TO HAVE HELD THAT, APPELLANT WAS ENTITLED TO C LAIM OF DEDUCTION U/S 54F OF THE ACT. 3. IT IS SUBMITTED BY THE LD AR OF THE ASSESSEE THAT AS P ER THE COPY OF COMPUTATION OF TAXABLE INCOME AVAILABLE ON PAGE NO.14 OF THE PAPER BOOK, IT CAN BE SEEN THAT THE ASSESSEE HAD CLAIMED EXEM PTION OF `.7.90 LAKHS U/S 54F OF THE ACT IN RESPECT OF INVESTMEN T IN RESIDENTIAL PROPERTY TO THE EXTENT OF `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`.3 CRORES ASSE SSED BY THE ASSESSING OFFICER, LD CIT(A) HAS DIRECTED THE ASSESSING OFFICER TO ASSESS THE INCOME OF THE ASSESSEE AT `.12.50 LAKHS BECAUSE IT HAS PAGE 3 OF 4 ITA NO331/DEL/11 BEEN NOTED BY HIM THAT THE ASSESSEE WAS HAVING ONLY 1/48 SHARES IN THE PROPERTY WHICH WAS SOLD FOR `.6 CRORES AND HENCE T HERE WAS NO BASIS FOR BRINGING TO TAX `.3 CRORES IN THE HANDS OF TH E ASSESSEE. AFTER ALLOWING DEDUCTION TO THE ASSESSEE REGARDING INDEXED CO ST OF ACQUISITION, IT WAS HELD BY LD CIT(A) THAT THE TAXABL E CAPITAL GAIN IN THE HANDS OF THE ASSESSEE WAS ONLY `.7.90 LAKHS. REGARDING CLA IM OF THE ASSESSEE FOR DEDUCTION AGAINST THIS LONG TERM CAPITAL GAI N OF `.7.90 LAKHS, LD CIT(A) SAYS THAT THE ASSESSEE HAS CLAIMED DEDUCTI ON U/S 54B OF THE ACT, BUT THE CLAIM OF THE ASSESSEE IS THIS THAT D EDUCTION IS ALLOWABLE TO HIM U/S 54F. UNDER THIS FACTUAL POSITION , WE FEEL THAT THIS ISSUE SHOULD GO BACK TO THE FILE OF THE ASSESSING OFFICER FOR A FRESH DECISION. HENCE, WE SET ASIDE THE ORDER OF THE LD CIT( A) ON THIS ISSUE AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR A FRESH DECISION. THE ASSESSEE SHOULD FURNISH THE RELEVANT D OCUMENT AND EVIDENCE BEFORE THE ASSESSING OFFICER REGARDING HI S CLAIM FOR DEDUCTION U/S 54F AND AFTER EXAMINING THE SAME, THE A SSESSING OFFICER SHOULD PASS NECESSARY ORDER AS PER LAW AFTER PROVIDING AD EQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IF THE ASSESS EE IS ELIGIBLE FOR DEDUCTION U/S 54F, AS PER THE DOCUMENTS AND EVIDEN CES TO BE FURNISHED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER, THE SAME SHOULD BE ALLOWED AS PER LAW. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE O F HEARING I.E. 23 RD DAY OF 2011. SD/- SD/- (R.P. TOLANI) (A.K. GAR ODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 23.3.2011. HMS PAGE 4 OF 4 ITA NO331/DEL/11 COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI).