VIRENDER SINGH TYAGI, GHAZIABAD V. ITO, WARD- 2(5), GHAZIABAD

ITA 3600/DEL/2018

AI Insights

The case involves Virender Singh Tyagi, who appealed against the order of the Commissioner of Income Tax (Appeals) - Ghaziabad, which pertained to the Assessment Year 2011-12. The primary contention in the appeal was the denial of a deduction under section 54F of the Income Tax Act, which the assessee claimed for investments made in the construction of a residential house. The Assessing Officer had rejected this claim, categorizing the expenses as 'remodeling' and 'renovation' of an old ancestral house rather than construction of a new house. The CIT(A) upheld this decision, leading to the appeal before the Tribunal. However, the Tribunal dismissed the appeal primarily due to the excessive delay in filing, without addressing the substantive issues of the case.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 302763 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 9 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 06-02-2023
• Assessment Year: 2011-2012
• Appeal Filed On: 13-05-2018
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Cost of acquisition; Valuation report; Condonation of delay; Capital Gains
• Section: 54; 143(3); 54F; 143(1); 139(1)

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “F”: NEW DELHI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND MS. ASTHA CHANDRA, JUDICIAL MEMBER ITA No.3600/Del/2018 Asstt. Year: 2011-12 O R D E R PER ASTHA CHANDRA, JM The appeal filed by the assessee is directed against the order dated 05.12.2014 of the Ld. Commissioner of Income Tax (Appeals)- Ghaziabad (“CIT(A)”) pertaining to Assessment Year (“AY”) 2011-12. 2. The assessee has raised the following grounds: “1. That in view of the facts and circumstances of the case and under the law, the Ld. CIT(A) erred in dismissing the appeal, in haste without providing reasonable opportunity, a must in law, therefore, the order so passed in furtherance thereto is arbitrary, unjust and bad in law. 2. That in view of the fact and circumstances of the case and under the law, the Ld. CIT(A) erred in not adjudicating the other Virender Singh Tyagi H. No. 45, Dundehra, NH-24, By Pass Road, Ghaziabad. PAN AGNPT6674L Vs. Income Tax Officer Ward 2(5) Ghaziabad. (Appellant) (Respondent) Assessee by: None Department by : Ms. Princy Singla, Sr. DR Date of Hearing 07.02.2023 Date of pronouncement 15. 02.2023 ITA No. 3600/Del/2018 2 grounds of appeal, a must in law, as raised by the appellant against the order passed by the Assessing Officer u/s 143(3) of the Act by treating the same as not pressed and general in nature. 3. That in view of the fact and circumstances of the case and under the law the Ld. CIT(A) erred in denying the deduction, as claimed by the appellant u/s 54F of the Act on the ground of alleged non- production of evidences in support of amount spent on construction of residential house.” 3. The facts in brief are that the assessee retired from PAC and is in receipt of pension. He is also running a small business of building material in the name of Nishant Traders in village-Dundehra, Ghaziabad. He filed e- return for AY 2011-12 on 04.12.2011 declaring income of Rs. 1,57,910/-. It was processed under section 143(1) of the Income Tax Act, 1961 (the “Act”). His case was selected for scrutiny through CASS. Statutory notices were issued and served upon the assessee, in response to which written replies along with requisite details and relevant document/information and bank statement etc. were filed. During assessment proceedings, the Ld. Assessing Officer (“AO”) observed that the assessee had sold residential land for Rs. 37448000/- with other three co-owner (the assessee’s share 1/4 th of Rs. 93,12,000/-) through registered sale deed dated 21.11.2011 and he had shown investment of Rs. 1750000/- in the construction of residential house. During assessment, the assessee had claimed deduction of Rs. 88,60,715/- (investment in immovable properties of Rs. 56,60,715/- + purchase of shop for Rs. 14,50,000/- + construction of residential house for Rs. 1750000/-). The assessing officer rejected the claim of the assessee and accordingly made an addition of Rs. 88,17,144/- as per following working:- Sale Consideration Rs. 93,13,000/- Less: Indexed cost of acquisition: The assessee has adopted circle rate of Rs. 200/- As on 1.4.1981 in respect of the land in question Whereas circle rate of the said land is Rs. 50/- ITA No. 3600/Del/2018 3 Per sq. yd. as on 1.4.1981 as obtained from the Tehsildar, Ghaziabad[land measuring 1164 sq. Mts. Qr 1392 sq.yds [assessee’s 1/4 th share] @ Rs. 50/- per sq.yds. Rs. 69600/-(1392x50) 69600 x 711 - 4,94,856/- (-) 4,94,856/- 100 Taxable Long term capital gain 88,17,144/- The Ld. AO thus computed the total income of the assessee at Rs. 89,75,050/- in his order dated 27.01.2014 passed under section 143(3) of the Act. 4. On appeal filed by the assessee, the Ld. CIT(A) dismissed the appeal observing and recording his findings in paras 4.1 to 4.3 which are reproduced below: “4.1 During appeal proceedings in the written submission, the appellant pursued only one ground that the assessee is entitled to deduction u/s 54F in respect of investment in construction of house. No submission or arguments were made w.r.t. other grounds. Therefore, ground no. 4 is being adjudicated and other grounds of appeal are rejected as not pressed and general in nature. 4.2 The assessing officer has denied the deduction u/s 54F with respect to investment of Rs. 17,50,000/- in residential house holding that:- “ As regards, investment of Rs. 1750000/- in the construction of house, the assessee has made investment in “remodeling” and “renovation” of old ancestral parental house and such investment cannot be said to have been made in construction of house. The assessee has not constructed any new building as alleged by him and not made investment in the construction of the new building. Therefore, assessee’s claim for exemption u/s 54 in respect of Rs. 1750000/- cannot be allowed.” ITA No. 3600/Del/2018 4 4.3 During appeal proceedings, the appellant has submitted that the house was nearly constructed and has submitted a valuation report of the valuer regarding its cost of construction. The appellant has not produced any evidence to disprove the Assessing Officer’s finding that the house was remodeled or renovated. Besides, the claim of the appellant of deduction u/s 54F is not allowable because the appellant has not produced how and when the cost of new house was paid. The provisions of Section 54F clearly state that the assessee had to either utilize the consideration or deposit it in Capital Gains Account Scheme by the due date of filing of return of income u/s 139(1) and furnish the proof of same with the return of income. The appellant has admitted that no amount was deposited in Capital Gains Account Scheme. No proof that the amount was utilized in the manner prescribed u/s 54F (4) has been furnished with return of income. Since the conditions laid down in section 54F (4) have not been met, the appellant is not entitled to any relief. Therefore, the appeal is rejected. ” 5. Aggrieved the assessee is in appeal before the Tribunal and all the grounds relate thereto. 6. The appeal to the Tribunal was found to have been filed late by 1193 days which was notified to the assessee vide Registry’s letter dated 14.05.2018. There is on record application for condonation of delay. 7. Hearing was fixed by the Tribunal on 27.07.2021, 22.09.2021, 22.11.2021, 24.01.2022, 29.03.2022, 15.06.2022, 12.09.2022, 22.11.2022 and finally on 07.02.2023. None attended for the assessee whereas the Revenue was represented by the Ld. DR on all the above dates. 8. As stated earlier, the appeal to the Tribunal has been filed late by 1193 days. We have gone through the application for condonation of delay of 1193 days which has been attributed by the assessee to his continuous ill- health and severe depression on account of family problems. However, no documentary proof has been submitted in support thereof. Hence the inordinate delay cannot be condoned. In the said application it has also been mentioned that the assessee is showing the sign of recovery. None-the- less neither the assessee nor his Authorised Representative appeared on any of the date(s) of hearing fixed by the Tribunal. ITA No. 3600/Del/2018 5 9. On the facts and in the circumstances of the case, we are constrained to hold that the appeal is not maintainable. 10. In the result, the appeal of the assessee is dismissed. Order pronounced in the open court on 15 th February, 2023. sd/- sd/- (SHAMIM YAHYA) (ASTHA CHANDRA) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 15/02/2023 Veena Copy forwarded to - 1. Applicant 2. Respondent 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, New Delhi Date of dictation Date on which the typed draft is placed before the dictating Member Date on which the typed draft is placed before the Other Member Date on which the approved draft comes to the Sr. PS/PS Date on which the fair order is placed before the Dictating Member for pronouncement Date on which the fair order comes back to the Sr. PS/PS Date on which the final order is uploaded on the website of ITAT Date on which the file goes to the Bench Clerk Date on which the file goes to the Head Clerk The date on which the file goes to the Assistant Registrar for signature on the order Date of dispatch of the Order