Ashish Dhawan, New Delhi V. ACIT, New Delhi

ITA 3446/DEL/2015

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1361 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 2006-2007
• Appeal Filed On: 29-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V K JIWANI
• Assessee Lawyers: SUMIT MANGAL CA MS ARZOO BATTA
• Keywords: Deduction for capital gain; Cost of acquisition; Difference of opinion; Assessment record; Revised return; Change of opinion
• Section: 54F; 54; 154

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G : NEW DELHI BEFORE SHRI KULDIP SINGH , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 3446/DEL/2015 (ASSESSMENT YEAR: 2006 - 07 ) ASHISH DHAWAN, 55 - A, JOR BAGH, NEW DELHI PAN: ADLPD9621N VS. ACIT, CIRCLE - 31(1), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SUMIT MANGAL, CA MS. ARZOO BATTA, CA REVENUE BY: SHRI V.K. JIWANI, SR. DR DATE OF HEARING 19/09 / 2018 DATE OF PRONOUNCEMENT 2 9 / 1 1 / 2018 O R D E R PER PRASHANT MAHARISHI, A. M. 1 . THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD CIT(A) - 1 8 , NEW DELHI DATED 02.03.2015 FOR THE ASSESSMENT YEAR 2006 - 07. 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1. THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) - 18, (LD CIT(A) AND DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 31(1) (LD AO) HAVE ERRED IN MAKING ADJUSTMENTS TO THE INCOME OF THE APPELLANT UNDER SECTION 154 OF THE ACT ON AN ISSUE WHICH WAS NOT A MISTAKE APPARENT FROM RECORDS AND THUS OUT OF THE SCOPE OF SECTION 154 OF THE ACT. 2. THE LD CIT(A) AND LD AO HAVE ERRED IN LAW AND ON THE BASIS OF THE CASE IN REDUCING THE EXEMPTION CLAIMED BY THE APPELLANT UNDER SECTION 54F OF THE ACT BY EXCLUDING RS. 1231260/ - INCURRED IN RELATION TO THE CONSTRUCTION OF RESIDENTIAL HOUSE PROPERTY FROM TOTAL COST OF CONSTRUCTION BY ALLEGING THAT THESE PAGE | 2 COSTS ARE NOT COVERED WITHIN THE PROVISIONS OF SECTION 54F OF THE ACT. 3. THE ABOVE GROUNDS OF APPEALS A RE INDEPENDENT AND WITHOUT PREJUDICE TO ONE ANOTHER. 3 . THE FIRST GROUND OF APPEAL IS WITH RESPECT TO ISSUE THAT ADJUSTMENT TO THE INCOME OF THE APPELLANT HAS BEEN MADE ON AN ISSUE, WHICH WAS NOT A MISTAKE APPARENT FROM THE RECORD AND THUS IS NOT IN THE SCOPE OF PROVISION OF SECTION 154 OF THE ACT. 4 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL. ORIGINAL RETURN WAS FILE D ON 31/10/2006 DECLARING TOTAL INCOME OF INR 20 , 1 9 , 98 , 480/ . THE ASSESSEE REVISED THE ABOVE RETURN ON 31/7/2007 ENHANC ING THE TOTAL INCOME FROM INR 2 0 , 19 , 98 , 480 / - TO INR 21 , 61 , 27 , 270 / - . THE ASSESSMENT UNDER SECTION 143 (3) OF THE ACT WAS PASSED ON 10 TH /12/2008. THAT ASSESSMENT ORDER WAS DETERMINED CONSIDERING THE ORIGINAL RETURN OF INCOME AND THE ASSESSED INCOME OF INR 20 , 19 , 98 , 480/ WAS ACCEPTED. IN NUTSHELL THE RETURNED INCOME WAS ASSESSED UNDER SECTION 143 (3) BY THE ABOVE ORDER DATED 10/12/2008. 5 . ON 25/4/2010 THE AO ISS UED NOTICE FOR RECTIFICATION UNDER SECTION 154 OF THE INCOME TAX ACT HOLDING THAT ORIGINAL INCOME TAX ORDER PASSED BY THE LEARNED ASSESSING OFFICER IS HAVING MISTAKE APPARENT FROM RECORD ON TWO COUNTS. 6 . THE FIRST REASON WAS THAT ASSESSEE HAS FILED REVISE D RETURN ON 31/7/2007 ENHANCING THE TOTAL INCOME AT INR 216127270/ FROM THE ORIGINAL RETUR NED INCOME OF INR 201998480/ , HOWEVER, THE ASSESSMENT ORDER UNDER SECTION 143 (3) WAS PASSED CONSIDERING THE ORIGINAL RETURNED INCOME OF INR 201998480/ INSTEAD OF REVISED RETURN INCOME AND THEREFORE THERE IS A MISTAKE APPARENT FROM THE RECORD WHICH IS SUPPOSED TO BE RECTIFIED UNDER SECTION 154 OF THE INCOME TAX ACT. PAGE | 3 7 . THE 2 ND REASON MENTIONED IN THE SAME NOTICE IT WAS FURTHER STATED BY THE LEARNED ASSESSING OFFICER THAT ON THE PERUSAL OF THE ASSESSMENT RECORD ASSESSEE HAS DECLARED TOTAL AMOUNT OF LONG - TERM CAPITAL GAIN ON SALE OF FOREIGN SECURITIES AMOUNTING TO RS. 228994110/ AND OUT OF THIS RS 119708471 HAS BEEN CLAIMED AS EXEMPT UNDER SECTION 54EC OF THE INCOME TAX ACT BEING INVESTMENT MADE IN NATIONAL HOUSING BANK BONDS. HE FURTHER NOTED THAT INVESTMENT IN NATIONAL HOUSING BANK BONDS ARE LESS THAN THE AMOUNT OF LONG - TERM CAPITAL GAIN THE PROVISIONS OF CLAUSE (B) OF SECTION 54EC (1) ARE APPLICABLE TO THE CASE OF THE ASSESSEE. CONSEQUENTLY, THE PROPORTIONATE OF THE CAPITAL GAIN INVESTED IS EXEMPT UNDER SECTION 54EC (1) (B). THEREFORE, ACCORDING TO THE AO THE CHARGEABLE LONG - TERM CAPITAL GAIN COMES TO INR 7 683583/ LEADING TO THE LOSS OF REVENUE. HE THEREFORE H ELD THAT SINCE THE MISTAKE IS APPARENT FROM RECORD THE SAME IS REQUIRED TO BE RECTIFIED. HE THEREFORE PROPOSED THAT THE TRUE VALUE OF LONG - TERM CAPITAL GAIN AS PER THE PROVISIONS OF SECTION 54EC IS REQUIRED TO BE RE - COMPUTED. 8 . VIDE LETTER DATED 13/05/201 0 THE ASSESSEE FILED A REPLY TO THE SHOW CAUSE NOTICE ISSUED TO THE ASSESSEE UNDER SECTION 154 OF THE INCOME TAX ACT. IT WAS STATED THAT THAT RECTIFICATION HAS PROPOSED ON 2 ISSUES. THE FIRST ISSUE IS THE ADOPTION OF THE REVISED RETURN INCOME AND THE SEC OND IS THE COMPUTATION OF THE LONG - TERM CAPITAL GAIN. ON THE 1 ST ISSUE THE ASSESSEE SUBMITTED THAT IT DOES NOT HAVE ANY OBJECTION IN ADOPTING THE REVISED RETURN INCOME IN THE ASSESSMENT ORDER IS ACCORDING TO ASSESSEE ALSO DECISION MISTAKE APPARENT FROM TH E RECORD. ON THE 2 ND ISSUE THE ASSESSEE OBJECTED THAT MISTAKE IS NOT APPARENT FROM THE RECORD. PAGE | 4 9 . THE FACTS RELATED TO SECOND ISSUE ARE THAT ASSESSEE IN F Y 2005 06 HAS MADE AN INVESTMENT OF INR 7683583 IN A RESIDENTIAL HOUSE PROPERTY AND CLAIMED EXEM PTION FROM LONG - TERM CAPITAL GAIN IN ACCORDANCE WITH THE PROVISIONS OF SECTION 54 F OF THE ACT AMOUNTING TO INR 7 683583. THE ASSESSEE SUBMITTED THAT IT HAS RECEIVED NET CONSIDERATION ON SALE OF THE FINANCIAL INSTRUMENT OF INR 43276250/ . THE AMOUNT OF EXEMPTION UND ER SECTION 54F WAS COMPLETED AT PROPORTIONATE TO THE AMOUNT OF INVESTMENT MADE IN THE HOUSE PROPERTY OF INR 7683583 OUT OF THE TOTAL SALE CONSIDERATION RECEIVED OF INR 43276250 WHICH IS ALSO THE CAPITAL GAIN INCOME AND THEREFORE THE DEDUCTION OF INR 7683583/ WAS CLAIMED. THE ASSESSEE SUBMITTED THAT THERE IS NO ERROR IN THE COMPUTATION OF TOTAL CAPITAL GAIN CHARGEABLE TO TAX AS WELL AS THE DEDUCTION UNDER SECTION 54F OF THE ACT. THE ASSESSEE ALSO SUBMITTED THAT DED UCTION UNDER THE PROVISIONS OF SECTION 54EC WAS ALSO COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THE ACT. THE ASSESSEE EXPLAINED THAT THE COST OF ACQUISITION OF THE SPECIFIED ASSET IS RS. 119708471 AND THE TOTAL LONG - TERM CAPITAL GAIN EARNED BY THE ASSE SSEE IS RS. 2213105 2 7 / - . THE RESULTANT CAPITAL GAIN AFTER REDUCING THE EXEMPTION UNDER SECTION 54F WAS RS. 22131527 AND IN PROPORTION TO THAT, THE AMOUNT OF DEDUCTION WAS CLAIMED AT RS. 119708471. THEREFORE, THE ASSESSEE SUBMITTED THAT THE CORRECT DEDU CTION HAS BEEN CLAIMED BY THE ASSESSEE AND THERE IS NO MISTAKE APPARENT FROM THE RECORD. 10 . THE LEARNED ASSESSING OFFICER REJECTED THE EXPLANATION OF THE ASSESSEE AND PASSED AN ORDER UNDER SECTION 154 READ WITH SECTION 143 (3) OF THE INCOME TAX ACT ON 1/10/20 10 MAKING THE ABOVE TWO ADJUSTMENTS. PAGE | 5 A . HE REINSTATED THE REVISED RETURN INCOME OF THE ASSESSEE OF INR 2 16127270/ INSTEAD OF THE ASSESSED INCOME OF INR 2 01998480/ WHICH WAS THE ORIGINAL RETURNED INCOME OF THE ASSESSEE. EVEN ASSESSEE HAS NO OBJECTION TO T HE ABOVE PROPOSITION. B . HE HELD THAT ASSESSEE HAS MADE IN EXCESS CLAIM OF EXEMPTION UNDER SECTION 54EC AMOUNTING TO INR 7683583/ DISALLOWED UNDER SECTION 154 OF THE INCOME TAX ACT. THIS ADJUSTMENT MADE BY THE ASSESSING OFFICER WAS SUBJECT MATTER OF THE DIS PUTE BEFORE THE LEARNED COMMISSIONER OF INCOME TAX APPEALS AS WELL AS BEFORE US. 11 . ASSESSEE PREFERRED AN APPLICATION UNDER SECTION 154 OF THE INCOME TAX ACT AGAINST THAT ORDER WIDE LETTER DATED 09/11/2010 BEFORE THE LEARNED ASSISTANT COMMISSIONER OF INCOME T AX STATING THAT WHILE PASSING THE ORDER UNDER SECTION 154 READ WITH SECTION 143 (3) OF THE INCOME TAX ACT DATED 01/10/2010. THE DISALLOWANCE MADE BY THE LEARNED ASSESSING OFFICER UNDER SECTION 54EC OF THE ACT IS A MISTAKE APPARENT FROM THE RECORD AS THER E IS NO ERROR IN THE CLAIM OF THE ASSESSEE OR ORIGINALLY MADE. 12 . MEANWHILE THE ASSESSEE ALSO FILED AN APPEAL BEFORE THE LEARNED COMMISSIONER OF INCOME TAX APPEALS CONTESTING THAT THE CLAIM OF DEDUCTION MADE BY THE ASSESSEE IS CORRECT AND FURTHER THE WITHDRAW AL OF THE EXCESS DEDUCTION UNDER SECTION 54F IS ALSO INCORRECT. THE ASSESSEE ALSO SUBMITTED THAT THE ABOVE ADJUSTMENT MADE BY THE LEARNED ASSESSING OFFICER IS BEYOND THE SCOPE OF THE PROVISIONS OF SECTION 154 OF THE INCOME TAX ACT. 13 . THE LEARNED COMMISSIONE R OF INCOME TAX (APPEALS) XVII,, NEW DELHI PASSED ORDER DATED 5/11/2012 A SET ASIDE THE ISSUE OF THE COMPUTATION OF THE CAPITAL GAIN EXEMPTION UNDER SECTION 54F OF PAGE | 6 INR 7 683583/ . HE NOTED THAT IN THE ORIGINAL RETURN THE APPELLANT HAS CLAIMED INR 1 0239 517/ AS EXEMPTION UNDER SECTION 54F OF THE INCOME TAX ACT FILING REVISED RETURN. THE CLAIM WAS REDUCED TO INR 7 683583/ . THE ASSESSEE HAS GIVEN THE WORKING OF DEDUCTION UNDER SECTION 54F OF INR 7 683583/ . IN THEIR LETTER DATED 13/5/2010 IN RESPONSE TO NOTICE UNDER SECTION 154, DATED 25/4/2010. THEREFORE, HE DIRECTED THE LEARNED ASSESSING OFFICER TO EXAMINE THIS CLAIM AND GRANT DEDUCTION AS PER LAW. 14 . IN PURSUANCE TO THE DIRECTION OF THE LEARNED COMMISSIONER OF INCOME TAX APPEALS, THE ASSESSING OFFI CER ISSUED NOTICE DATED 8/1/2013 TO THE ASSESSEE FOR EXAMINATION OF THE ABOUT THE DETAILS, WHICH WAS REPLIED TO BY THE ASSESSEE ON 24/1/2013. IT CULMINATED INTO THE ASSESSMENT ORDER DATED 16 TH /4/2013 PASSED BY THE LEARNED ASSESSING OFFICER UNDER SECTION 2 50/154/143 (3) FOR ASSESSMENT YEAR HOLDING THAT THE DEDUCTION ALLOWABLE TO THE ASSESSEE UNDER SECTION 54F IS ONLY INR 6452323 AND NOT INR 7683583 AS CLAIMED BY THE ASSESSEE. THE LEARNED ASSESSING OFFICER NOTED THAT OUT OF THE AMOUNT SPENT FOR CONSTRUCTION OF INR 7 683583, INR 1231260 IS INCURRED BY THE ASSESSEE FOR THE VARIOUS GADGETS FOR WHICH DEDUCTION UNDER SECTION 54F IS NOT ALLOWABLE. CONSEQUENTLY THE TOTAL INCOME OF THE ASSESSEE WAS COMPUTED AT INR 217358530/ . 15 . THIS ORDER WAS ALSO CHALLENGED BY THE ASSESSEE BEFORE THE COMMISSIONER OF INCOME TAX APPEALS. IN THE APPEAL THE ASSESSEE RAISED A GROUND THAT THE LEARNED ASSESSING OFFICER HAS ERRED IN MAKING ADJUSTMENT TO THE INCOME OF THE APPELLANT UNDER SECTION 154 OF THE ACT ON AN ISSUE WHICH WAS NOT A MI STAKE APPARENT FROM RECORD AND THUS OUT OF THE SCOPE OF SECTION 154 OF THE PAGE | 7 INCOME TAX ACT. AS A SUB GROUND ASSESSEE ALSO CHALLENGED THE ORDER WITH RESPECT TO THE DENIAL OF DEDUCTION BY EXCLUDING THE EXPENDITURE AMOUNTING TO RS . 1231260/ INCURRED BY THE APPELLANT IN RELATION TO THE CONSTRUCTION OF RESIDENTIAL HOUSE PROPERTY RELATED TO THE PURCHASE OF VARIOUS GADGET. 16 . THE LEARNED COMMISSIONER OF INCOME TAX ( APPEALS ) PASSED ORDER DATED 2/3/2015 RECTIFYING THE ORDER WHEREIN THE 1 ST GROUND CHALLENGED BY THE ASSESSEE OF MAKING AN ADJUSTMENT TO THE RETURNED INCOME OF THE APPELLANT, 2 ND GROUND THE APPLICABILITY OF THE ADJUSTMENT UNDER SECTION 154 OF THE ACT ON AN ISSUE WHICH WAS NOT A MISTAKE APPARENT FROM RECORD AND THUS OUT OF THE SCOPE OF S ECTION 154 OF THE ACT, AND THE GROUND NUMBER 4 AND 5 STATING GENERAL GROUNDS WERE DISMISSED. HOWEVER, NO SUCH REASONS WERE GIVEN IN THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX APPEALS. WITH RESPECT TO THE 3 RD GROUND OF THE APPEAL REGARDING EXCLUS ION OF INR 1231260/ INCURRED BY THE APPELLANT IN RELATION TO THE CONSTRUCTION OF RESIDENTIAL HOUSE PROPERTY FOR PURCHASE OF GADGETS THE ACTION OF THE LEARNED ASSESSING OFFICER WAS CONFIRMED AND ON THIS GROUND THE APPEAL OF THE ASSESSEE WAS DISMISSED. 17 . AGAI NST THIS ORDER, THE APPEAL HAS BEEN PREFERRED BEFORE US. 18 . THE LD AR FIRSTLY SUBMITTED THAT ABOVE ADJUSTMENT CANNOT MADE U/S 154 OF THE ACT AS THERE IS NO MISTAKE APPARENT FROM THE RECORD. HE SUBMITTED THAT THE ORDER PASSED BY THE LD AO IS CRYPTIC AND WITHOU T APPLICATION OF MIND. HE FURTHER SUBMITTED THAT THE LD CIT(A) HAS NOT RECORDED ANY REASON FOR NOT ADJUDICATING THE OBJECTION U/S 154 OF THE ACT. HE FURTHER STATED THAT THERE IS CHANGE OF OPINION AND IN SUCH CIRCUMSTANCES; THE PROVISION OF SECTION 154 OF T HE ACT DOES NOT APPLY. HE FURTHER PAGE | 8 STATED THAT WHEN THE MISTAKE IS TO BE DISCOVERED ON THE INTERPRETATION OR CONSTRUCTION OF THE PROVISION OF THE ACT IT CAN NEVER BE A MISTAKE APPARENT FROM THE RECORD. THE ASSESSEE ALSO RELIED UPON THE DECISION OF THE COOR DINATE BENCH IN 9 SOT 601 WHEREIN IT HAS BEEN HELD THAT IT IS A SUBJECT OF EXAMINATION WHETHER THE EXPENDITURE INCURRED TO MAKE THE HOUSE HABITABLE OR JUST TO MAKE THE HOUSE MORE COMFORTABLE. THEREFORE, HE SUBMITTED THAT WHAT CONSTITUTES THE RESIDENTIAL HOUSE IS A DEBATABLE ISSUE WITH RESPECT TO THE EXPENDITURE INCURRED FOR THE CONSTRUCTION OF RESIDENTIAL HOUSE. 19 . THE LD DR VEHEMENTLY SUPPORTED THE ORDER OF THE LOWER AUTHORITIES. 20 . WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS. FIRSTLY, THE LEARNED COMMISSIONER OF INCOME TAX APPEALS HAS NOT DECIDED THE GROUND RAISED BY THE APPELLANT BEFORE HIM THAT WHETHER THE ISSUE OF THE COST OF RESIDENTIAL HOUSE CAN BE THE SUBJECT MATTER OF RECTIFICATION OR NOT. THE PROVISIONS OF SECTION 154 , ARE VERY CLEAR WHICH GIVES A POWER TO THE ASSESSING OFFICER TO RECTIFY THE MISTAKE IF IT IS APPARENT FROM THE RECORD. THIS ISSUE IS APPARENTLY NOT A MISTAKE APPARENT FROM THE RECORD. WHEN THE LEARNED ASSESSING OFFICER HAS MADE THE DETAILED EXAMINATION OF THE COST OF CONSTRUCTION OF THE RESIDENTIAL HOUSE PROPERTY AND HELD THAT CERTAIN ITEMS INCURRED BY THE ASSESSEE FOR THE CONSTRUCTION OF RESIDENTIAL HOUSE ARE NOT COVERED FOR THE PURPOSE OF EXEMPTION UNDER SECTION 54F OF THE INCOME TAX ACT. IT IS ALWAYS DEBATABLE WHAT ARE THE AMENITIES, WHICH CAN BE INCLUDED IN THE COST OF RESIDENTIAL HOUSE. THEREFORE ACCORDING TO US THE LEARNED AO WAS NOT CORRECT A INVOKING THE PROVISIONS OF SECTION 154 OF THE INCOME TAX ACT, FOR THE PURPOSE OF COMPETITION OF THE CAPIT AL GAIN W ITH PAGE | 9 RESPECT TO THE COST OF RESIDENTIAL HOUSE. FIRST WE COME TO THE NOTICE UNDER SECTION 154 OF THE INCOME TAX ACT ISSUED ON 25/4/2010, WHERE THE ASSESSING OFFICER HAS NOTED AS UNDER: - THE PERUSAL OF THE ASSESSMENT RECORD SHOWS THAT YOU HAVE DEC LARED TOTAL AMOUNT OF LONG - TERM CAPITAL GAIN ON THE SALE OF FOREIGN SECURITIES AMOUNTING TO RUPEES 228994110/ . OUT OF THIS AMOUNT THE SUM OF RUPEES 119708471/ HAS BEEN CLAIMED AS EXEMPT UNDER SECTION 54EC OF THE INCOME TAX ACT BEING INVESTMENT IN THE NH B BONDS. SINCE, THE INVESTMENT IN NHB BONDS IS LESS THAN THE AMOUNT OF LTC G THE PROVISI ONS OF CLAUSE ( B ) OF SECTION 54E C (1) AS HIGHLIGHTED ABOVE, ARE APPLICABLE TO THE CASE OF THE ASSESSEE. CONSEQUENTLY, THE PROPORTIONATE OF THE CAPITAL GAIN INVESTED AS EXEMPT UNDER SECTION 54EC (1) (B). ACCORDINGLY, THE CHARGEABLE LTC COMES TO INR 7 683583/ LEADING TO THE LOSS OF REVENUE. SINCE THE MISTAKE IS APPARENT FROM THE RECORD THE SAME IS SURE TO BE RECTIFIED. ON CAREFUL READING OF THE ABOVE REASONS FOR THE I NVOKING OF THE PROVISIONS OF SECTION 154 OF THE INCOME TAX ACT. IT IS APPARENT THAT THE LEARNED ASSESSING OFFICER WAS NOT CONSIDERING THE ISSUE OF THE COST OF THE RESIDENTIAL HOUSE, BUT THE PROVISIONS OF SECTION 54EC OF THE ACT. IN VIEW OF THIS, WE ARE O F THE OPINION THAT EVEN IN THE SHOW CAUSE NOTICE THE LEARNED ASSESSING OFFICER HAS NOT NOTED THAT THE ASSESSEE HAS SHOWN THE INCORRECT COST OF RESIDENTIAL HOUSE PROPERTY. THE ASSESSING OFFICER IS TO PASS DETAILED ORDER TO SHOW THAT CERTAIN COST OF GADGETS HAVE BEEN INCLUDED BY THE ASSESSEE IN THE COST OF RESIDENTIAL HOUSE PROPERTY FOR CLAIMING EXEMPTION UNDER SECTION 54F OF THE ACT. IN VIEW OF PAGE | 10 THIS WE ARE OF THE OPINION THAT THE IMPUGNED ADJUSTMENT THAT IS PROPOSED TO BE MADE BY THE LEARNED ASSESSING OFFI CER TO THE TOTAL INCOME OF THE ASSESSEE IS NOT ON ACCOUNT OF MISTAKE APPARENT FROM RECORD. IN VIEW OF THIS WE ARE NOT INCLINED TO UPHOLD THE ORDER OF THE LEARNED ASSESSING OFFICER SO FAR AS IT RELATES TO THE ADJUSTMENT ON ACCOUNT OF THE CAPITAL GAIN IS CHARGEABLE TO TAX BY TWEAKING THE COST OF THE RESIDENTIAL HOUSE PROPERTY. ACCORDINGLY, THE GROUND NUMBER 1 OF THE APPEAL IS ALLOWED. 21 . GROUN D NO. 2 IS WITH WHETHER DEDUCTION U/S 54F OF THE ACT WILL INCLUDE THE EXPENDITURE INCURRED BY THE ASSESSEE OF R S. 1231260/ - ON ACCOUNT OF HEATER, AIR CONDITIONER AND HOME KITCHEN. AS WE HAVE ALREADY QUASHED THE RECTIFICATION NOTICE ISSUED BY THE ASSESSING OFFICER TO THE EXTENT OF ADJUSTMENT TO THE CAPITAL GAIN COMPUTED BY THE ASSESSEE. THE GROUND NUMBER 2 BECOMES INFRUCTOUS. ACCORDINGLY, SAME IS DISMISSED. 22 . ACCORDINGLY, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 9 / 1 1 / 2018 . - S D / - - S D / - ( KULDIP SINGH ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 9 / 1 1 / 2018 A K KEOT COPY FORWARDED TO 1 . APPLICANT 2 . RESPONDENT 3 . CIT 4 . CIT (A) 5 . DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI