Dr.Anavarathan Somasundaram, Vellore V. ACIT, Vellore

ITA 402/CHNY/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8685 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 23-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIVA SRINIVAS
• Assessee Lawyers: K ULAGANATHAN
• Keywords: Capital asset
• Section: 131; 54

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . , ! . ' , # $ BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBE R AND SHRI. G. PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A. NO.402/MDS/2016 # % &% / ASSESSMENT YEAR : 2011-2012 DR. ANAVARATHAN OMASUNDARAM, NO.659, 42 ND STREET, PHASE II, SATHUVACHARI, VELLORE 63 009. [PAN AZHPS 6085P] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE I, VELLORE. ( / APPELLANT) ( /RESPONDENT) '( ) * / APPELLANT BY : SHRI. K. ULAGANATHAN, C.A. +,'( ) * /RESPONDENT BY : SHRI. SHIVA SRINIVAS, JCIT. ' ) - / DATE OF HEARING : 06-07-2016 .& ) - / DATE OF PRONOUNCEMENT : 29-07-2016 / O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER : THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGA INST ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-13, CHE NNAI IN ITA NO.204/2011-12/CIT(A)-13, DT 12.12.2015 FOR THE ASS ESSMENT YEAR 2011-12 PASSED U/S.143(3) R.W.S. AND 250 OF THE IN COME TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT). ITA NO.402/MDS/2016 :- 2 -: 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. THE APPELLANT RESPECTFULLY OBJECTS TO THE ORDE R UNDER SECTION 250(6) MADE BY THE CIT (A) - 13, ADDING RS.58,96,590, BEING THE EXEMPTED CAPITAL GAINS, AS OPPOSED TO LAW, FACTS AND CIRCUMSTANCES OF THE CASE . 2. FIRSTLY, THE CIT(A)-13 HAS ERRED IN TREATING THE TRANSACTION AS PURCHASE OF HOUSE PROPERTY ON SURRENDER OF 40% OF UN-DIVIDED SHARE IN LAND. HE OUGHT TO HAVE UNDERSTOOD THAT THE TRANSACTION WAS ALLOTMENT OF RESIDENTIAL FLAT UNDER JOINT DEVELOPMENT AGREEMENT FOR GIVING UP A RESIDENTIAL FLAT. 3. SECONDLY, THE CIT(A)-13 HAS ERRED IN NOT CONSIDERING THE EXEMPTION UNDER SECTION 54. HE OUGHT TO HAVE APPRECIATED THE FACT THAT AS PER SECTION 54(1)(II), 'IF THE AMOUNT OF THE CAPITAL GAIN IS EQUAL TO OR LESS THAN COST OF THE NEW ASSET, THE CAPITAL GAIN SHALL NOT BE CHARGED UNDER SECTION 45'. THEREFORE, THE CIT(A)-13, OUGHT TO HAVE ACCEPTED OUR SUBMISSION THAT WHEN THE CHARGING SECTION FAILS, THERE IS NO OBLIGATION ON THE PART OF THE APPELLANT TO DISCLOSE IT IN HIS RETURN OF INCOM E. 4. THIRDLY, THE APPELLANT RESPECTFULLY SUBMITS THAT THE CIT(A)-13, HAS ERRED IN STATING (PAGE 5 OF THE ORDER) THAT 'THE CAPITAL GAIN SHALL NOT BE CHARGED UNDER SECTION 45 IS JUST AN ARGUMENT AND NOT THE CLAIM MADE BEFORE THE ASSESSING OFFICER'. THIS STATEMENT MADE IS CONTRADICTORY TO THE FACT THE CIT(A)-13 MAKES IN TH E 3 RD PARAGRAPH OF PAGE 3 OF HIS ORDER 'IT IS MENTIONED IN THE ASSESSMENT ORDER THAT THE ASSESSEE WAS PUT BEFORE HIM ON THE SPECIFIC QUESTIONS BY THE ASSESSING OFFICE THAT HAS HE SHOWN THE VALUE OF THE TRANSACTIONS ENTERED BY HIM FOR PURCHASE OF NEW RESIDENTIAL FLAT IN THE INCOME-TAX RETURN. TO ITS REPLY ASSESSEE HAS STATED THAT HE HAS RECEIVED NEW FLAT AGAINST THE OLD ONE AND THEREFORE HE HAS NOT SHOWN THIS TRANSACTION TO THE INCOME-TAX DEPARTMENT IN THE INCOME TAX. ITA NO.402/MDS/2016 :- 3 -: 5. FINALLY, THE APPELLANT HUMBLY SUBMITS THAT THIS IS CLEAR CASE OF AN OLD RESIDENTIAL FLAT GIVEN UP (EXTINGUISHMENT OF A FLAT) AND A NEW RESIDENTIAL FL AT ALLOTTED (PURCHASE OF A NEW FLAT) AND HENCE THE SECTION 54 WILL APPLY TO THE CASE. SINCE, THE ENTI RE CAPITAL GAIN IS RE-INVESTED AS STATED IN THE 3 RD GROUNDS OF APPEALS, THERE IS NO OBLIGATION ON THE PART OF T HE APPELLANT TO DISCLOSE IT IN THE RETURN OF INCOME. 6. THE APPELLANT PRAYS THAT HE MAY BE PERMITTED TO FIL E ADDITIONAL GROUNDS OF APPEAL, IF NECESSARY, AT THE TIME OF HEARING. 7. THE APPELLANT PRAYS THAT FOR THE VARIOUS GROUNDS OF APPEAL ADDUCED AS ABOVE AND FOR VARIOUS GROUNDS OF APPEAL THAT MAY BE FILED AT THE TIME OF HEARING, THE ADDITION OF RS.58,96,590, BEING THE EXEMPTED CAPITAL GAIN MADE BY ASSESSING OFFICER, AND APPROVED BY THE CIT(A)-13, WHICH IS OPPOSED TO LAW, FACTS AND CIRCUMSTANCES OF THE CASE, MAY PLEASE BE DELETED. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE I S A SALARIED EMPLOYEE AND DEPUTY DIRECTOR IN HEALTH DEPARTMENT, TIRUPATTUR FILED RETURN OF INCOME WITH NET TAXABLE INCOME OF :6,85, 252/-. SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY UN DER CASS AS PER AIR INFORMATION FROM THE SUB-REGISTRAR, ADYAR, CHE NNAI THAT THERE WAS A REAL ESTATE TRANSACTIONS AMOUNTING TO :1,49,4 0,460/- WITH THE ASSESSEE AND NOTICE U/S.143(2) OF THE ACT WAS ISSU ED. THE LD. ASSESSING OFFICER ISSUED NOTICE U/S.142(1) OF THE A CT AND ALSO SUMMONS U/S.131 OF THE ACT CALLING FOR THE DETAILS OF SALE DEED, PURCHASE DEED, MOU AND CALCULATION OF LONG TERM CAP ITAL GAINS. IN RESPONSE TO THE SUMMONS U/SEC. 131 OF THE ACT, THE ASSESSEE ITA NO.402/MDS/2016 :- 4 -: APPEARED AND STATEMENT WAS RECORDED. THE ASSESSEE HAS FILED RETURN OF INCOME ITR 1 SAHAJ FOR THE ASSESSMENT YEAR 2011 -2012, AND THE FACT OF REAL ESTATE TRANSACTION WAS NOT DISCLOSED IN THE E-FILED RETURN. THE ASSESSEE PURCHASED PROPERTY WITH UDS OF LAND IN RESPECT OF FLAT NO.3, FIRST FLOOR, BLOCK NO.A-9, 3 RD MAIN ROAD, G.O.C.H. COLONY, BESANT NAGAR, CHENNAI -90 AND MEASURING 1250 SQ.FT BY REGI STERED SALE DEED DATED 08.06.2005 FOR A CONSIDERATION OF :22,00,000/ - INCLUDING :2,00,000/- TOWARDS STAMP DUTY AND REGISTRATION CH ARGES. THE LD. AUTHORISED REPRESENTATIVE FILED COPY OF MOU ENTERED BY THE ASSESSEE AND HIS WIFE WITH THE BUILDER DATED 03.01.2010 AND PURCHASE DEED DATED 08.06.2005. THE LD. ASSESSING OFFICER ON VERI FICATION OF MOU FOUND THAT THE ASSESSEE HAS SURRENDERED 40% UNDIVID ED SHARE (UDS) OF LAND I.E. 630 SQ.FT. IN EXCHANGE OF NEW RESIDENT IAL FLAT. THE LD. ASSESSING OFFICER ALSO PERUSED THE PARA 7 & 8 OF M OU REFERRED AT PAGE NO. 4 & 5 OF HIS ORDER AND FINALLY CONCLUDED THAT THE ASSESSEE HAS SURRENDERED 40% UDS OF LAND AND THE VALUE AS PE R SRO BEING DEEMING CONSIDERATION OF :.1,49,40,460/- AND THE TR ANSACTION WAS NOT DISCLOSED IN INCOME TAX RETURN. THE LD. ASSESSING OFFICER HAS WORKED OUT LONG TERM CAPITAL GAINS BASED ON DEEMED CONSID ERATION AND ITA NO.402/MDS/2016 :- 5 -: ALLOWED DEDUCTION OF INDEXATION OF COST OF ACQUIS ITION OF PROPERTY IN 2005 AND CALCULATED LONG TERM CAPITAL GAINS TAXABLE TO THE SHARE OF ASSESSEE BY 50% :58,96,589/- AND PASSED ASSESSMENT ORDER U/S.143(3) OF THE ACT DATED 25.03.2014. AGGRIEVED B Y THE ORDER, THE ASSESSEE FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). 4. IN THE APPELLATE PROCEEDINGS, THE LD. AUTHORISED REPRESENTATIVE ARGUED THAT THE ACTION OF THE LD. AS SESSING OFFICER IN CALCULATING LONG TERM CAPITAL GAINS AND SUBJECTING TO TAX IS BAD IN LAW. THE ASSESSEE WAS ALLOTTED RESIDENTIAL PROPERT Y ON SURRENDER OF 40% OF UDS LAND. AS PER THE MOU WITH BUILDER THE ASSESSEE WAS ALLOTTED RESIDENTIAL FLAT UNDER JOINT DEVELOPMENT A GREEMENT AND THE LD. ASSESSING OFFICER ERRED IN NOT CONSIDERING THE PROVISIONS OF EXEMPTION U/S.54 OF THE ACT. THE ASSESSEE WAS ALLOT TED NEW RESIDENTIAL FLAT ON SURRENDER OF OLD FLAT ALONGWITH UDS OF LAN D AND CONSIDERED THE PROVISIONS OF SEC. 54 OF THE ACT AND PRAYED FOR A LLOWING THE CLAIM OF EXEMPTION U/S.54 OF THE ACT. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) CONSIDERED THE GROUNDS, EXPLANATIONS OF T HE LD. AUTHORISED REPRESENTATIVE AND FINDINGS OF THE LD. ASSESSING O FFICER ON MOU ENTERED WITH THE BUILDER AND CLAIM OF EXEMPTION U/S .54 OF THE ACT. BUT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) CONCUR RED WITH THE FINDINGS OF THE LD. ASSESSING OFFICER AND CAME TO A UNILATERAL ITA NO.402/MDS/2016 :- 6 -: CONCLUSION THAT THE ASSESSEE HAS FAILED TO DISCLOS E THE TRANSACTION IN THE RETURN OF INCOME AND ALSO THERE IS NO CLAIM UND ER SECTION 54 IN THE INCOME TAX RETURN BY THE ASSESSEE, THE LD. AUTHORIS ED REPRESENTATIVE EXPLAINED THAT IF THE AMOUNT OF CAPITAL GAIN IS E QUAL TO OR LESS THAN THE COST OF THE NEW ASSET, THE CAPITAL GAIN SHALL N OT BE CHARGED UNDER SECTION 45 BUT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) RELIED ON ORDER OF THE LD. ASSESSING OFFICER AND CONFIRMED THE ADDITION AND DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE HAS ASSAILED AN APPEAL BEFORE TRIBUNAL. 5. BEFORE US, THE LD. AUTHORISED REPRESENTATIVE REITE RATED THE SUBMISSIONS MADE IN THE ASSESSMENT AND APPELLATE PR OCEEDINGS ALONGWITH MATERIAL EVIDENCE OF PURCHASE DEED, SALE DEED AND MOU ENTERED WITH BUILDER. THE LD. AUTHORISED REPRESENT ATIVE ARGUED THAT THE ASSESSEE HAS SURRENDERED UDS OF LAND ALONG WIT H OLD RESIDENTIAL FLAT TO THE BUILDER FOR ALLOTMENT OF A NEW RESIDENT IAL FLAT. THE SEC.54 OF THE ACT ARE EXEMPTION PROVISIONS AND THE ASSESSE E HAS COMPLIED THE PREREQUISITE CONDITIONS AS STIPULATED UNDER THE ACT . THE ASSESSEE WAS ALLOTTED NEW RESIDENTIAL FLAT AGAINST OLD FLAT AN D THERE IS NO INCOME AND HENCE NOT DISCLOSED IN THE RETURN OF INCOME. T HE LD. AUTHORISED REPRESENTATIVE EMPHASIZED THAT IT IS A CLEAR CASE OF SURRENDER OF EXISTING OLD FLAT FOR ALLOTMENT OF NEW RESIDENTIAL FLAT AND ASSESSEE HAS ITA NO.402/MDS/2016 :- 7 -: COMPLIED THE PROVISIONS OF SEC. 54 OF THE ACT AND STIPULATED REQUISITE CONDITIONS OF THE ACT AND PRAYED FOR ALLOWING THE APPEAL. 6. CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) AND O PPOSED TO THE GROUNDS OF THE REVENUE. 7. WE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERI AL ON RECORD AND JUDICIAL DECISIONS. THE CRUX OF THE ISS UE RAISED BY THE LD. AUTHORISED REPRESENTATIVE THAT ASSESSEE ALONGWTIH SPOUSE HAS PURCHASED A RESIDENTIAL FLAT WITH UDS IN LAND IN TH E YEAR 2005. SUBSEQUENTLY, THE ASSESSEE ENTERED INTO MOU WITH BU ILDER ON 03.01.2010 AND AS PER TERMS AND CONDITIONS, THE ASS ESSEE IN EXCHANGE AGAINST 40% UDS IN LAND THE ASSESSEE ENTITLED FOR NEW RESIDENTIAL FLAT WITH THE CONSTRUCTION SPECIFICATIONS MENTIONED IN THE MOU AND BUILDER HAS DELIVERED POSSESSION THE PROPERTY. NOW QUESTION ARISE UNDER THE PROVISIONS OF SEC. 2(47) OF THE ACT, THE TRANSFER DEFINITION INCLUDES EXCHANGE:- 2(47) TRANSFER', IN RELATION TO A CAPITAL ASSET , INCLUDES,- (I) THE SALE, EXCHANGE OR RELINQUISHMENT OF THE ASSET; OR (II) THE EXTINGUISHMENT OF ANY RIGHTS THEREIN; OR (III) THE COMPULSORY ACQUISITION THEREOF UNDER ANY LAW; OR (IV) IN A CASE WHERE THE ASSET IS CONVERTED BY THE OWNE R THEREOF INTO, OR IS TREATED BY HIM AS, STOCK- IN- TRADE OF A BUSINESS CARRIED ON BY HIM, SUCH CONVERSION OR TREATMENT;] 6 OR] ITA NO.402/MDS/2016 :- 8 -: (V)ANY TRANSACTION INVOLVING THE ALLOWING OF THE PO SSESSION OF ANY IMMOVABLE PROPERTY TO BE TAKEN OR RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A O F THE TRANSFER OF PROPERTY ACT, 1882 1 (4 OF 1882 ); OR (VI) ANY TRANSACTION (WHETHER BY WAY OF BECOMING A MEMB ER OF, OR ACQUIRING SHARES IN, A CO- OPERATIVE SOCIETY, COMPA NY OR OTHER ASSOCIATION OF PERSONS OR BY WAY OF ANY AGREEMENT O R ANY ARRANGEMENT OR IN ANY OTHER MANNER WHATSOEVER) WHIC H HAS THE EFFECT OF TRANSFERRING, OR ENABLING THE ENJOYMENT O F, ANY IMMOVABLE PROPERTY. EXPLANATION.- FOR THE PURPOSES OF SUB- CL AUSES (V) AND (VI),' IMMOVABLE PROPERTY' SHALL HAVE THE SAME MEAN ING AS IN CLAUSE (D) OF SECTION 269UA;] AND ALSO, WE PERUSED THE PROVISIONS OF SEC. 54 AS UNDER:- 54. [(1)] [SUBJECT TO THE PROVISIONS OF SUB-SECTION ( 2), WHERE, IN THE CASE OF AN ASSESSEE BEING AN INDIVIDUAL OR A HINDU UNDIVIDED FAMILY], THE CAPITAL GAIN ARISES FROM THE TRANSFER OF A LONG-TERM CAPITAL ASSET [***], BEING BUILDINGS OR LANDS APPURTENANT THERETO, AND BEING A RESIDENTIAL HOUSE, THE INCOME OF WHICH IS CHARGEABLE UNDER THE HEAD 'INCOM E FROM HOUSE PROPERTY' (HEREAFTER IN THIS SECTION REFERRED TO AS THE ORIGINAL ASSET), AND THE ASSESSEE HAS WITHIN A PERI OD OF [ONE YEAR BEFORE OR TWO YEARS AFTER THE DATE ON WHICH TH E TRANSFER TOOK PLACE PURCHASED], OR HAS WITHIN A PERIOD OF TH REE YEARS AFTER THAT DATE [ CONSTRUCTED, A RESIDENTIAL HOUSE ] , THEN], INSTEAD OF THE CAPITAL GAIN BEING CHARGED TO INCOME -TAX AS INCOME OF THE PREVIOUS YEAR IN WHICH THE TRANSFER T OOK PLACE, IT SHALL BE DEALT WITH IN ACCORDANCE WITH THE FOLLOWIN G PROVISIONS OF THIS SECTION, THAT IS TO SAY, (I) IF THE AMOUNT OF THE CAPITAL GAIN [IS GREATER T HAN THE COST OF [THE RESIDENTIAL HOUSE] SO PURCHASED OR CONSTRUCTED (HEREAFTER IN THIS SECTION REFERRED TO AS THE NEW ASSET)], THE DIFFERENCE BETWEEN THE AMOUNT OF THE CAPITAL GAIN AND THE COST OF THE NEW ASSET SHALL BE CHARGED UNDER SECTION 45 AS THE INCOME OF THE PREVIOUS YEAR; AND FOR THE PURPOSE OF COMPUTING IN RESPECT OF THE NEW ASSET ANY CAPITAL GAIN ARISING FROM ITS TRANSFER WITHIN A PERIOD OF THREE YEARS OF ITS PURCHASE OR C ONSTRUCTION, AS THE CASE MAY BE, THE COST SHALL BE NIL; OR (II) IF THE AMOUNT OF THE CAPITAL GAIN IS EQUAL TO OR LESS THAN THE COST OF THE NEW ASSET, THE CAPITAL GAIN SHALL NOT B E CHARGED ITA NO.402/MDS/2016 :- 9 -: UNDER SECTION 45 ; AND FOR THE PURPOSE OF COMPUTING IN RESPECT OF THE NEW ASSET ANY CAPITAL GAIN ARISING FROM ITS TRANSFER WITHIN A PERIOD OF THREE YEARS OF ITS PURCHASE OR C ONSTRUCTION, AS THE CASE MAY BE, THE COST SHALL BE REDUCED BY TH E AMOUNT OF THE CAPITAL GAIN. ON THE COMBINED READING OF COMPOSITION OF BOTH THE PROVISIONS APPLYING TO THE PRESENT CASE, THE ASSESSEE IS A OW NER OF A RESIDENTIAL FLAT AND ENTERED INTO MOU WITH BUILDER FOR ALLOTMEN T OF NEW RESIDENTIAL FLAT IN EXCHANGE OF EXISTING OLD RESIDENTIAL FL AT AND SATISFIED THE PROVISIONS OF SEC. 2(47) OF THE ACT. FURTHER THE A SSESSEE WAS ALLOTTED THE RESIDENTIAL FLAT AND TOOK POSSESSION IN LIEU O F UDS. PRIME FACIE, THE ASSESSEE HAS COMPLIED BOTH THE PROVISIONS AND E LIGIBLE FOR BENEFIT UNDER THE INCOME TAX ACT. WE FOUND THAT THE REVENU E HAS NOT DISPUTED MOU WITH BUILDER , PURCHASE AND EXCHANGE OF PROPERTY. BUT THE SOLE GRIEVANCE OF THE REVENUE IS THAT THE ASSE SSEE HAS NOT DISCLOSED THIS TRANSACTION IN INCOME TAX RETURN AND CLAIM OF EXEMPTION U/S.54 OF THE ACT. WE ON PERUSAL OF PRO VISIONS OF SEC. 54 OF THE ACT FOUND THAT IT IS A EXEMPTION PROVISION ALLOWED ON INVESTMENT IN RESIDENTIAL PROPERTY AND THE CONTENTI ON OF THE ASSESSEE THAT SINCE EXEMPTION IS CLAIMED AND THERE IS NO TA XABLE INCOME, THEREFORE THERE IS NO NECESSITY TO DISCLOSE THE TR ANSACTION. FURTHER, UNDER THE PROVISIONS OF SEC. 54(1) OF THE ACT WHER E THE AMOUNT OF CAPITAL GAINS IS EQUAL OR LESS THAN COST OF NEW ASS ET, THE CAPITAL GAINS SHALL NOT BE CHARGED U/S.45 OF THE ACT. ON ANALYZI NG OF ABOVE ITA NO.402/MDS/2016 :- 10 -: EXPLANATIONS, THE DISCLOSURE SHALL BE MADE IF ONLY THERE IS CHARGEABILITY OR TAXABILITY OF CAPITAL GAINS. THE LD. AUTHORISED REPRESENTATIVE DREW OUR ATTENTION TO THE MOU AND PURCHASE DEED OF THE P ROPERTY AND EMPHASIZED THAT THE PROPERTY EXCHANGED WAS RESID ENTIAL PROPERTY AND THERE IS NO VIOLATION OF CONDITIONS AS PER THE TERMS ENTERED WITH THE BUILDER. THE LD. AUTHORISED REPRESENTATIVE REL IED ON THE DECISION OF ITAT, BANGALORE BENCH IN THE CASE OF ESSAE TERAOKA LTD VS. DCIT (2016) 67 TAXMANN.COM 147 WERE THE COST OF NEW PROPERTY ALLOTTED IN EXCHANGE OF OLD SHALL BE AS RECORDED IN THE BOOKS O F DEVELOPER. PRIME FACIE, THE CAPITAL GAINS ON EXCHANGE HAS BEEN REINV ESTED IN NEW RESIDENTIAL FLAT, THEREFORE THERE IS NO TAXABILITY OF LONG TERM CAPITAL GAINS. THE ASSESSEE HAS MISSED IN DISCLOSING THE INFORMATION, BUT IT IS NOT A SERIOUS OMISSION. ON COMPARING THE REALISTIC FACTS AND GENUINENESS OF TRANSACTIONS AND BONAFIDE CLAIM PRO VED WITH A REGISTERED DOCUMENT AND MOU ENTERED WITH BUILDER. WHEN THE LD. ASSESSING OFFICER HAS THE KNOWLEDGE THAT THE ASSES SEE HAS NOT DISCLOSED INFORMATION IN THE RETURN OF INCOME HE C OULD INTIMATE U/S.139 (9) OF THE ACT STATING THAT THE RETURN OF INCOME FILED BY THE ASSESSEE IS DEFECTIVE AND GIVE AN OPPORTUNITY TO RE CTIFY THE DEFECT WITHIN A PERIOD FIFTEEN DAYS FROM THE DATE OF SUCH INTIMATION AND FURTHERTHE RELEVANT INFORMATION WAS NOT DISCLOSED IN ITR -1 (SAHAJ) WERE NO HEADING OF INCOME FROM CAPITAL GAINS IS AVA ILABLE. WE ARE OF ITA NO.402/MDS/2016 :- 11 -: THE OPINION CONSIDERING THE APPARENT FACTS AND MAT ERIAL EVIDENCE AND THE DECISIONS RELIED. THE ASSESSEE HAVING BONAFIDE EVIDENCE TO SUBSTANTIATE THE CLAIM SHALL NOT BE DEPRIVED OF HIS RIGHT TO CLAIM BENEFIT DUE TO OMISSION TO INCLUDE IN THE RETURN. WE ALSO T AKE SUPPORT FROM THE APEX COURT DECISION OF NATIONAL THERMAL POWER CO. LTD VS. CIT 229 ITR 383 . THEREFORE, WE SET ASIDE THE DISPUTED ISSUE TO THE FILE OF LD. ASSESSING OFFICER TO VERIFY THE CLAIM OF THE ASSESS EE WITH MATERIAL EVIDENCE AS PER THE APPLICABLE PROVISIONS OF THE A CT AND PASS THE ORDERS. THE ASSESSEE SHALL BE PROVIDED ADEQUATE OPPORTUNITY OF HEARING BEFORE DECIDING THE ISSUE ON MERITS. THE A PPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON FRIDAY, THE 29TH DAY OF JULY , 2016, AT CHENNAI. SD/- SD/- ( . ) (A. MOHAN ALANKAMONY) / ACCOUNTANT MEMBER ( ! . ' ) (G. PAVAN KUMAR) /JUDICIAL MEMBER / CHENNAI / / DATED:29.07.2016 KV 0 ) +#-12 32&- / COPY TO: 1 . '( / APPELLANT 3. ' 4- () / CIT(A) 5. 2 78 +#-# / DR 2. +,'( / RESPONDENT 4. ' 4- / CIT 6. 89% : / GF