VIVEK SUDERSHAN, GHAZIABAD V. ITO, WARD- 2(5), GHAZIABAD

ITA 3671/DEL/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8790 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 15-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: ADITYA PURWAR
• Keywords: Additional evidence; Cost of acquisition; Competent authority
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI N.S.SAINI, ACCOUNTANT M EMBER ITA NO.-3671/DEL/2018 (A. Y. : 2013-14) SH. VIVEK SUDARSHAN, GHAZIABAD VILLA NO. 4, GH-7 CROSSING REPUBLIC, GHAZIABAD UTTAR PRADESH, PAN : AQAPS1686G VS ITO, WARD-2(5), GHAZIABAD ASSESSEE BY SHRI ADITYA PURWAR, CA REVENUE BY SHRI S.L.ANURAGI , SR . DR ORDER PER N.S.SAINI, ACCOUNTANT MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-GHAZIABAD, DAT ED 28.02.2018 FOR ASSESSMENT YEAR 2013-14. THE ASSESSE E HAS RAISED FOLLOWING GROUNDS OF APPEAL :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE ASSESSING OFFICER HAS ERRED IN MAKING ADDITION OF R S. 24,90,800/- IN HOUSE NO -117 AND RS. 12,00,000/- IN HOUSE NO -A 1 126 AS INCOME FROM LONG TERM CAPITAL GAIN. TOTAL ADDITION OF RS. 36,90,800 DESERVES TO BE FULLY DELETED. 2. THE APPELLANT HAS BEEN DENIED PROPER OPPORTUNITY OF PRESENTING FACTS OF HIS CASE BEFORE CIT(A). THE COU NSEL TO WHOM NOTICES WERE SENT THROUGH EMAIL DID NOT SHARE THE S AME WITH THE APPELLANT WHICH RESULTED IN NON-COMPLIANCE OF THE S AME. THE PROPER OPPORTUNITY TO DEFEND HIS CASE HAS BEEN DENI ED. 3. THE FACTS OF HIS CASE HAVE BEEN IGNORED BY ASSESSI NG DATE OF HEARING 27.12.2018 DATE OF PRONOUNCEMENT 28 . 1 2 .201 8 2 ITA N O. 3671/DEL/2018 OFFICER AND HENCE THE ORDER DESERVES TO BE MODIFIED / CANCELLED AS PER LAW. 4. THE ASSESSEE HAD SPENT RS 14,00,000 ON CONSTRUCTIO N OF HOUSE NO-117 THE SAME IS LIABLE TO BE ALLOWED AS CA PITAL EXPENDITURE UNDER SECTION 55 OF INCOME TAX AND SHOU LD BE CONSIDERED IN CALCULATION OF CAPITAL GAIN. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ASSESSING OFFICER HAS ERRED IN REJECTING THE VALUAT ION REPORT AS ON 28/03/2016 OBTAINED BY THE APPELLANT FROM GOVERNMEN T APPROVED REGISTERED VALUER. THE VALUE OF RS 1445000 AS DETERMINED IS LIABLE TO BE ACCEPTED. SUMMARY OF VAL UATION REPORT AS BLOW: S.N PARTICULAR AREA SFT ROOF HTFT YEAR CONSTRUCTION RS/ SFT REPLACEMENT RS DEP NET VALUE 1 GROUND FLOOR 900 10'-0' 2004 1100 990000 27% 722700 2 FIRST FLOOR 900 10-0' 2004 1000 900000 27% 657000 3 MUMTI 100 10'-0' 2004 900 90000 27% 65700 TOTAL 144500 0 6. THE ASSESSING OFFICER COULD NOT INTERFERE WITH THE VALUATION OF THE REGISTERED VALUER AND THE ASSESSING OFFICER IS NOT COMPETENT AUTHORITY TO SUMMARILY REJECT THE REGISTE RED VALUER REPORT FILED BY ASSESSEE. 7. THE ASSESSING OFFICER NOT HAVING USED HIS POWER FO R GIVING DIRECTION U/S 55A AND HENCE WAS DUTY BOUND AS PER L AW TO ACCEPT THE VALUATION FILED BY THE ASSESSEE. 8. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ASSESSING OFFICER HAS ERRED IN MAKING ADDITION OF R S 12,00,000/- IN HOUSE NO. A1-126 WITHOUT ALLOWING INDEXATION TO THE COST. S.N. PARTICULAR AMOUNT INDEX COST 1. PURCHASE COST 541056 888208 2. STAMP DUTY 122700 201427 3. REGISTRY FEE 5020 8241 4. CONSTRUCTION COST 959548 1307049 TOTAL 1638324 2404925 3 ITA N O. 3671/DEL/2018 9. THE ADDITION OF RS. 36,90,800/- AS LONG-TERM CAPITA L GAIN IS AGAINST FACTS OF THE CASE AND IS BAD IN LAW AND DESERVES TO BE FULLY DELETED BECAUSE THE ASSESSEE H AS INVESTED THE ENTIRE SALE CONSIDERATION IN PURCHASE OF NEW RESIDENTIAL HOUSE AS PER THE PROVISIONS OF SECTION 54 OF THE INCOME TAX ACT, 1961. ASSESSEE PURCHASED NEW HOUSE ON 09/07/2012 IN HIS WIFE MRS. MALVEE SUDERSAN FOR TAK ING BENEFIT OF LOWER STAMP DUTY. THE EXEMPTION CLAIMED U/S 54 OF THE ACT IS LIABLE TO BE FULLY ALLOWED. 10. THE ORDER IS ILLEGAL AND AGAINST FACTS OF THE CASE AND IS BAD IN LAW AND DESERVES TO BE QUASHED. 2. AT THE OUTSET, LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE SHRI ADITYA PURWAR, CA SUBMITTED THAT HE HAS FILED AN APPLICATION UNDER RULE 29 OF THE ITAT RULE FOR ACCEPTANCE OF AD DITIONAL EVIDENCES WHICH WERE NOT FILED BEFORE THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSEE WAS IN STATE OF DEPRESSION . HE FURTHER SUBMITTED THAT ON APPEAL THE COMMISSIONER OF INCOME TAX (APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE AS T HE ASSESSEE FAILED TO PUT IN APPEARANCE ON THE DATES OF HEARING FIXED BY HIM ON 24.10.2017, 14.11.2017, 12.12.2017 AND 27.02.2018. HE, THEREFORE, PRAYED THAT THE MATTER SHOULD BE REMANDE D TO THE FILE OF THE ASSESSING OFFICER TO ADJUDICATE THE ISSUES INVO LVED IN THE APPEAL OF THE ASSESSEE AFRESH AFTER TAKING INTO CON SIDERATION THE ADDITIONAL EVIDENCES NOW FILED BEFORE THE TRIBUNAL. 3. THE DEPARTMENTAL REPRESENTATIVE SHRI S.L.ANURAGI , SR. DR HAD NO OBJECTION TO THE ABOVE SUBMISSION OF THE AUT HORISED REPRESENTATIVE OF THE ASSESSEE. 4. IN THE ABOVE FACTS AND CIRCUMSTANCES, I SET ASID E THE ORDERS OF THE LOWER AUTHORITIES AND REMAND THE MATTER BAC K TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION OF THE ISSUE S AFRESH AFTER 4 ITA N O. 3671/DEL/2018 CONSIDERING THE ADDITIONAL EVIDENCES FILED BEFORE T HE TRIBUNAL NAMELY 1. PURCHASE DEED OF HOUSE NO. A1-126 (2) S ALE DEED OF HOUSE NO. A1-126 (3) PURCHASE DEED OF VILLA NO. 4 ( 4) LIC HOUSING LOAN PAPER (5) BANK STATEMENT OF ACCOUNT NO. 007620 10077960 (INDIVIDUAL ACCOUNT) (6) BANK STATEMENT OF ACCOUNT NO. 095010200018647 (FIRM ACCOUNT) (7) CAPITAL GAIN COM PUTATION. 5. IN THE RESULT APPEAL OF THE ASSESSEE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH DECEMBER, 2018 AT NEW DELHI. SD/- (N.S.SAINI) ACCOUNTANT MEM BER DATED: 28.12.2018 *BR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 27.12.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 27.12.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER .12.2018 5 ITA N O. 3671/DEL/2018 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 28.12.2018 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 28 .12.2018 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 28.12.2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 28.12.2018 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