M YOGESH SHAKTHIVEL, CHENNAI V. ITO, NCW-7(4), CHENNAI

ITA 3517/CHNY/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2370 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 27-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALMALSAWMA PACHUAU
• Keywords: Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , A BENCH, CHENNAI . . . , , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ./ I.T.A.NO.3517/CHNY/2018 ( [ [ / ASSESSMENT YEAR: 2013-14) SHRI M YOGESH SHAKTHIVEL NO.11/9, SANTHAM COLONY, ANNA NAGAR WEST EXTN., THIRUMANGALAM, CHENNAI 600 040. VS THE INCOME TAX OFFICER, NON-CORPORATE CIRCLE-7(4), CHENNAI 34. PAN: AJEPY5217C ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI Y. SRIDHAR, ADVOCATE / RESPONDENT BY : SHRI LALMALSAWMA PACHUAU, JCIT /DATE OF HEARING : 19.06.2019 /DATE OF PRONOUNCEMENT : 21.06.2019 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-7, CHENNAI DATED 17.10.2018 AND PERTAINS TO THE ASSESSMENT YEAR 2013-14. 2 I.T.A. NO. 3517/CHNY/2018 2. SHRI Y. SRIDHAR, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ONLY ISSUE ARISES FOR CONSIDERATION IS DENIAL OF EXEMPTION U/S.54F OF THE ACT. 3. SHRI Y. SRIDHAR, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE PURCHASED THE IMMOVABLE PROPERTY ALONG WITH BUILDING BY MEANS OF REGISTERED SALE DEED DATED 07.02.2013. THE ASSESSEE APPLIED FOR PERMISSION TO DEMOLISH THE BUILDING BY A LETTER DATED 15.02.2013. THE ASSISTANT EXECUTIVE ENGINEER, TOWN PLANNING SECTION, CORPORATION OF CHENNAI GRANTED PERMISSION FOR DEMOLITION OF THE EXISTING BUILDING BY AN ORDER DATED 03.06.2013. THEREFORE THE ASSESSEE INVESTED THE CAPITAL GAIN IN A RESIDENTIAL HOUSE AND ELIGIBLE FOR EXEMPTION U/S.54F OF THE ACT. THE LD.AO HOWEVER FOUND THAT THE ASSESSEE HAS PURCHASED ONLY A VACANT LAND MEASURING 3067 SQ.FT AT PADI AND THEREFORE NOT ELIGIBLE FOR EXEMPTION U/S.54F OF THE ACT. 4. REFERRING TO THE COPY OF THE REGISTERED SALE DEED WHICH IS AVAILABLE AT PAGE NO.19 OF PAPER-BOOK, THE LD. COUNSEL SUBMITTED THAT IN THE SCHEDULE OF THE SALE DEED, EVEN THOUGH IT WAS REFERRED AS VACANT SITE, THERE WAS A BUILDING IN EXISTENCE WHICH WAS PERMITTED TO BE DEMOLISHED BY THE ORDER OF THE ASSISTANT EXECUTIVE ENGINEER, TOWN PLANNING SECTION, CORPORATION OF CHENNAI, THE COPY OF WHICH IS 3 I.T.A. NO. 3517/CHNY/2018 AVAILABLE AT PAGE NO.35 OF PAPER-BOOK. THEREFORE THE CLAIM OF THE LD.AO THAT THERE WAS NO BUILDING IN EXISTENCE WAS NOT CORRECT. 5. ON THE CONTRARY, SHRI LALMALSAWMA PACHUAU, THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE REGISTERED SALE DEED CLEARLY SHOWS THAT THE PROPERTY PURCHASED BY THE ASSESSEE WAS A VACANT SITE AND NOT A RESIDENTIAL HOUSE. THEREFORE THE ASSESSEE IS NOT ELIGIBLE FOR EXEMPTION U/S.54F OF THE ACT. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE APPROVAL GRANTED BY THE CORPORATION OF CHENNAI FOR DEMOLITION OF THE EXISTING BUILDING CLEARLY SHOWS THAT THERE WAS A BUILDING WHICH IS IN EXISTENCE AS ON 03.06.2013. HOWEVER, IN THE REGISTERED SALE DEED, IT WAS SHOWN AS VACANT SITE. THEREFORE THERE IS A CLEAR CONTRADICTORY STATEMENT BETWEEN THE REGISTERED SALE DEED AND THE ORDER OF THE GREATER CORPORATION OF CHENNAI. THEREFORE IT IS OBVIOUS THAT EITHER THE STATEMENT MADE IN THE REGISTERED SALE DEED AS VACANT SITE MAY BE WRONG OR THE CORPORATION OF CHENNAI MIGHT HAVE GRANTED PERMISSION TO DEMOLISH THE BUILDING WHICH IS NOT IN EXISTENCE. FOR THE PURPOSE OF CLAIMING EXEMPTION U/S.54F OF THE ACT, THE ASSESSEE HAS TO ESTABLISH THAT THE CAPITAL GAIN WAS INVESTED IN A RESIDENTIAL HOUSE. IN CASE, 4 I.T.A. NO. 3517/CHNY/2018 THERE WAS A BUILDING IN EXISTENCE, THE SUB-REGISTRAR WHO REGISTERED THE DOCUMENT MIGHT HAVE LEVIED THE STAMP DUTY FOR THE MARKET VALUE OF THE BUILDING ALSO. THE ENDORSEMENT MADE ON THE REGISTERED SALE DEED SHOWS THAT IN ADDITION TO THE STAMP DUTY PAID INITIALLY, THE ASSESSEE HAS ALSO PAID A SUM OF RS.4 LAKHS TOWARDS DEFICIENT STAMP DUTY. THEREFORE THERE WAS CONFUSION WHETHER THE PROPERTY PURCHASED BY THE ASSESSEE IS A VACANT SITE OR A BUILDING. HENCE THIS TRIBUNAL IS OF CONSIDERED OPINION THAT THE MATTER NEEDS TO BE RE-EXAMINED BY THE ASSESSING OFFICER. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE ENTIRE ISSUE OF EXEMPTION U/S.54F OF THE ACT IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE MATTER. THE ASSESSING OFFICER SHALL SUMMON THE SUB-REGISTRAR IN EXERCISE OF HIS POWER U/S.131 OF THE ACT AND FIND OUT WHETHER THERE WAS PERSONAL INSPECTION BY THE SUB- REGISTRAR DURING THE COURSE OF REGISTRATION OF THE DOCUMENT. IF SO, THE ASSESSING OFFICER SHALL BRING ON RECORD, THE NOTE MADE BY THE SUB- REGISTRAR WITH REGARD TO THE PHYSICAL NATURE OF THE PROPERTY. AFTER EXAMINING THE SUB-REGISTRAR U/S.131 OF THE ACT, THE ASSESSING OFFICER FOUND THAT THERE WAS NO BUILDING IN EXISTENCE ON THE DATE OF REGISTRATION OF THE DOCUMENT, THE ASSESSING OFFICER SHALL ALSO SUMMON THE ASSISTANT EXECUTIVE ENGINEER WHO GRANTED PERMISSION FOR DEMOLITION OF BUILDING ON 03.06.2013. THE ASSESSING OFFICER SHALL 5 I.T.A. NO. 3517/CHNY/2018 EXAMINE THE ASSISTANT EXECUTIVE ENGINEER U/S.131 OF THE ACT AND BRING ON RECORD, HOW THE PERMISSION WAS CAME TO BE ISSUED ON 03.06.2013 WHEN THE BUILDING WAS NOT IN EXISTENCE. AFTER BRINGING ALL THE FACTS ON RECORD, THE ASSESSING OFFICER SHALL DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 21 ST JUNE, 2019 AT CHENNAI. SD/- SD/- ( ) (INTURI RAMA RAO) /ACCOUNTANT MEMBER ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER /CHENNAI, /DATED, THE 21 ST JUNE, 2019. RSR /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. ( )/CIT(A) 4. /CIT 5. /DR 6. [ /GF