ITO, New Delhi V. Mrs. Geeta Kashyap, New Delhi

ITA 3655/DEL/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6357 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 21-05-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 07-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G H SEMA SENIOR
• Assessee Lawyers: G N GUPTA I T PRACTITIONER
• Keywords: Additional evidence
• Section: 54; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH C : NEW DELHI) BEFORE SHRI B.C. MEENA, ACCOUNTANT MEMBER AND SHRI A.T. VARKEY, JUDICIAL MEMBER ITA NO.3655/DEL./2013 (ASSESSMENT YEAR : 2009-10) ITO, WARD 22 (2), VS. MRS. GEETA KASHYAP, NEW DELHI. 169, SUKHDEV VIHAR, NEW DELHI 110 025. (PAN : AMIPK4521A) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.N. GUPTA, I.T. PRACTITIONER REVENUE BY : SHRI G.H. SEMA, SENIOR DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE REVENUE EMANATES FROM THE ORDER OF CIT (APPEALS)-XXIII, NEW DELHI DATED 29.04.2013 FOR THE ASSESSMENT YEAR 2009-10. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN ACCEPTING THE ADDITIONAL EVIDENCE IN VIOLA TION OF RULE 46A OF THE INCOME-TAX ACT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT (A) HAS ERRED IN DELETING THE ADDITION OF RS.55,96,020/- ON ACCOUNT OF LONG TERM CAPITAL GAIN ON THE SALE OF IMMOVABLE PROPERTY SOLD AT MUMBAI FOR RS.65,00,000/-. 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HE ARING OF THE APPEAL. ITA NO.3655/DEL./2013 2 2. THE CASE WAS TAKEN UP FOR SCRUTINY ON THE BASIS OF AIR INFORMATION REGARDING SALE OF A PROPERTY FOR RS.65 LACS BEING FLAT NO.B-406, 4 TH FLOOR, KINGSTON CO-OP HOUSING SOCIETY, HIRANADANI GARDENS, POWAI, MUMBAI. THE AS SESSEE CLAIMED THAT LONG TERM CAPITAL GAIN ON THE FLAT WAS EXEMPTED ON ACCOUNT OF INVESTM ENT IN NEW RESIDENTIAL PROPERTY. BEFORE THE ASSESSING OFFICER, A MOU DEED FOR PLOT O F LAND AT BHANDUP, MUMBAI FOR RS.39,87,500/- WAS FILED BUT IT WAS IN THE NAME OF SHRI ASHWANI KASHYAP. IN ABSENCE OF ANY DOCUMENTARY EVIDENCE WITH REGARD TO THE CLAIM O F EXEMPTION U/S 54 OF THE INCOME-TAX ACT, 1961, THE ASSESSING OFFICER ADDED THE AMOUNT T O THE INCOME OF THE ASSESSEE. BEFORE THE CIT (A), THE ASSESSEE SUBMITTED ADDITIONAL EVID ENCE WITH REGARD TO THE PURCHASE OF NEW PROPERTY AND THE SAME WAS FORWARDED TO ASSESSING OF FICER FOR SPECIFIC COMMENTS WITH REGARD TO THE ALLOWABILITY OF EXEMPTION U/S 54 IN R ESPECT OF THE INVESTMENT OF RS.52,75,000/-. THE ASSESSING OFFICER SUBMITTED A REMAND REPORT ON 28.03.2013 WHERE IT WAS PLEADED THAT THE ADDITIONAL EVIDENCE SHOULD NOT BE ADMITTED AS ADEQUATE OPPORTUNITIES WERE PROVIDED TO THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS. THE APPLICATION U/S 154 WAS REJECTED ON THE GROUND THAT THE ASSESSEE HAS FI LED APPEAL PRIOR TO FILING THE RECTIFICATION APPLICATION. THE CIT (A) OBSERVED THAT NO COMMENTS WERE OFFERED ON THE MERITS OF THE EVIDENCES. HOWEVER, ON PERUSAL OF THE REMAND REPOR T, WHICH IS PLACED AT PAGES 29 & 30 OF THE PAPER BOOK, IT IS OBSERVED THAT THE ASSESSING O FFICER HAS REPORTED AS UNDER :- THE SECOND POINT IS REGARDING THE ALLOW-ABILITY O F CLAIM U/S 54 ON THE BASIS OF SALE DEED IN RESPECT OF PURCHASE OF NE W HOUSE PROPERTY. IN THIS REGARD, IT IS SUBMITTED THAT CLAIM WAS ALLOWABLE AS PER I.T. ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD FILED A COPY OF M.O.U. DEED OF THE PROPERTY DATED 15/03/2009. THE PROPERTY WAS M.O.U. DEED IN THE NAMES OF SHRI ASHWANI KASHYAP AND NOT APPEARED TO BE A RESIDENTIAL PROPERTY/PLOT OF LAND PURCHASED FOR RS.39,87,500/- AND SHOWED THAT ADVANCE OF RS.11,87,500/- WAS PAID TOWARDS THE PLOT AT BHANDUP. MUMBAI. THE SAID M.O.V. DEED NOT PERTAINED TO THE ASSESSEE AND WAS NOT A REGISTERED SALE DEED AND HENCE THE SAME WAS NOT CON SIDERED. THUS, IT COULD BE OBSERVED FROM THE ASSESSMENT PROCEEDINGS THAT AS SESSEE HAD FAILED TO FURNISH THE REQUIRED SALE DEED IN SUPPORT OF INVEST MENT MADE QUALIFYING THE DEDUCTION U/S 54 OF I.T. ACT. IT IS SUBMITTED THAT SUFFICIENT OPPORTUNITIES ITA NO.3655/DEL./2013 3 WERE AFFORDED TO FILE EVIDENCE WHICH WAS NOT SUBMIT TED AND NOW FILED IN ADDITIONAL EVIDENCE BEFORE YOUR KIND GOODSELF. AS PER THE CIT (A)S OBSERVATION, NO COMMENTS WERE OFFERED BY THE ASSESSING OFFICER ON THE MERITS OF THE EVIDENCE, HOWEVER, THE REMAND REP ORT SAYS THAT THE CLAIM WAS ALLOWABLE AS PER INCOME-TAX ACT, 1961. THE CIT (A) GRANTED THE RELIEF BY ADMITTING THE ADDITIONAL EVIDENCE. 3. WE HAVE HEARD BOTH THE SIDES ON THE ISSUE. WE F IND THAT THE REMAND REPORT SAYS THAT THE CLAIM OF THE ASSESSEE IS ALLOWABLE AS PER INCOM E-TAX ACT, 1961, THEREFORE, IN OUR CONSIDERED VIEW, THERE IS NO MERITS IN THE APPEAL O F THE REVENUE AND THE SAME DESERVES TO BE DISMISSED. IN THIS VIEW OF THE MATTER, WE FIND NO FAULT IN THE ORDER OF THE CIT (A) AND WE CONFIRM THE SAME. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 23 RD DAY OF MAY, 2014. SD/- SD/- (A.T. VARKEY) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 23 RD DAY OF MAY, 2014 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXIII, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.