Ajay Kumar Jugal Supra, New Delhi V. ITO, New Delhi

ITA 4129/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6532 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 06-03-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 26-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BEDOBINA CHAUDHARI
• Section: 54F; 54

Judgement Text

ITA NO. 4129 /DEL./201 6 ASSESSMENT Y EAR: 20 10 - 11 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SM C NEW DELHI) BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMB E R ITA NO. 4 1 29 /DEL./201 6 ASSESSMENT YEAR: 20 10 - 11 AJAY KUMAR JUGAL SUPRA C/O MR. RAMESH NAKRA, 8 - MUNIRKA MARG, VASANT VIHAR, NEW DELHI VS. ITO RANGE 23(2) NEW DELHI (APPLICANT) (RESPONDENT) (PAN: AAVPS2753D ) ASSESSEE BY: SH. RAJESH MALHOTRA, C . A . REVENUE BY: MS. BEDOBINA CHAUDHARI, SR. DR DATE OF HEARING 06 / 0 3 /201 7 DATE OF PRONOUNCEMENT 0 7 / 0 3 /201 7 ORDER PER B.P. JAIN , ACCOUNTANT MEMBER : 1. THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF LD. CIT(A) - 13 , NEW DELHI VIDE ORDER DATED 2 7 . 0 5 .201 6 FOR THE A.Y. 20 10 - 11 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : - 1. GROUND NO.1. DATE OF PURCHASE OF PROPERTY TAKEN AS DATE OF AGREEMENT AND NOT DATE OF BOOKING. DESPITE NOTING THE FACT THAT THE ASSESSEE HAS BOOKED THE PROPERTY IN F.Y. 1993 - 94 IN PARA 9.1 OF CIT (A) ORDER, THE CIT (A) ERRED IN LAW IN UPHOLDING THE DECISION OF LD. ASSESSING PAGE 2 OF 5 OFFICER OF CONSIDERING THE DATE OF AGREEMENT AS DATE OF PURCHASE OF PROPERTY I.E. F.Y. 2004 - 05 INSTEAD OF BOOKING I.E. F.Y. 1993 - 94. GROUND NO. 2. ALLOWABILTY OF DEDUCTION U/S 54F IN RESPECT OF INVESTMENT IN HOU SE PROPERTY OUTSIDE INDIA. THE LD. COMMISSIONER OF INCOME TAX (APPEALS ERRED IN LAW IN UPHOLDING THE DISALLOWANCE MADE BY THE LD. A.O. OF DEDUCTION CLAIMED U/S 54F OF THE INCOME TAX ACT, 1961, IN RESPECT OF HOUSE PROPERTY PURCHASED OUTSIDE INDIA. GROUN D NO.3 GENERAL 1 ) THE ASSESSING OFFICER BEING CONTRARY TO EVIDENCE AND FACTS OF THE CASE SHOULD BE AMENDED OR MODIFIED IN THE LIGHT OF THE GROUND DEDUCED ABOVE. 2 ) THE APPELLANT CRAVE LEAVE TO RESERVE TO THEM THE RIGHT TO ADD TO ALTER OR AMEND THE GROUNDS AT O R BEFORE THE TIME OF HEARING. 2. IT WAS ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE THAT T HE HOUSE WAS SOLD IN MUMBAI AND WAS INVESTED IN PURCHASE OF THE HOUSE IN DUBAI DURING THE A.Y. 2010 - 11 , W HEREAS THE AMENDMENT U/S 54F WAS BROUGHT IN THE A.Y. 2015 - 16 WITH EFFECT FROM 1.4.2015, WHERE THE INVESTMENT HAS TO BE MADE IN INDIA. HE ARGUED THAT T HE SAID AMENDMENT IS NOT APPLICABLE IN THE PRESENT IMPUGNED YEAR AND THEREFORE ASSESSMENT MADE IS BAD IN L AW. PAGE 3 OF 5 3. THE LD. CIT(A) CONFIRMED THE ACTION OF THE A.O. THE SAID CAPITAL GAIN TAXABLE. 4. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE FACTS OF THE CASE. THE APPELLANT IN THE PRESENT CASE HAS SOLD THE HOUSE IN MUMBAI AND MADE THE INVESTMENT IN PURCHASING THE HOUSE IN DUBAI DURING THE ASSESSMENT YEAR 2010 - 11, WHEREAS THE AMENDMENT IN THE ACT HAS BEEN BROUGHT DURING THE A.Y. 2015 - 16 AND THEREFORE THE SAME IS NOT APPLICABLE TO THE IMPUGNED ORDER. THE CASE IS FULLY COVERED BY THE D ECISION OF COORDINATE BENCH OF MUMBAI IN THE CASE OF DHUN JEHAN CONTRACTOR VS. ITO VIDE ORDER DATED 13.5.2015 OF ITAT AVAILABLE AT P.B. 16 TO 20 AND THE RELEVANT PART IS BEING REPRODUCED HERE UNDER: - THE FINANCE (NO.2) BILL, 2014 BROUGHT AN AMENDMENT IN SECTION 54, WHEREIN SUB - SECTION (1), FOR THE WORDS CONSTRUCTED, A RESIDENTIAL HOUSE , THE WORDS CONSTRUCTED, ONE RESIDENTIAL HOUSE IN INDIA HAS TO BE SUBSTITUTED W.E.F. 1 ST DAY OF APRIL, 2015. THUS, IT IS CLEAR FROM THE AMENDMENT SO BROUGHT F OR CLAIMING EXEMPTIO N U / S 54, THAT NE W RESIDENTIAL HOUSE SHOU L D B E CONSTRUCTED IN INDIA ONLY W.E.F. ASSESSMENT YEAR 2015 - 2016. HOWEVER, THE ASSESSMENT YEAR UNDER CONSIDERATION IS 201 0 - 2011 I.E. MUCH P RIOR TO THE AMENDMENT SO BROUGHT IN FINANCE (NO.2) BILL, 2014. THERE IS NO REASON TO DECLINE EXEMPTION U/S 54 DURING A.Y. 2010 - 11 UNDER CONSIDERATION. PAGE 4 OF 5 5. IN THE CIRCUMSTANCES AND FACTS OF THE CASE THE CAPITAL GAINS HAVING BEEN TAXED BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(A) IS BAD IN L AW AND THEREFORE THE ASSESSMENT SO MADE IS DIRECTED TO BE QUASHED AND ALL THE GROUNDS OF APPEAL ARE ALLOWED. 6 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. 7 . P RONOUNCED IN THE OPEN COURT ON 0 7 . 0 3 .201 7. S D / - ( B.P. JAIN ) ACCOUNTANT MEMB E R DATED: 0 7 . 0 3 .2017 NARENDER COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT (APPEALS) 5) DR: ITAT ASSISTANT REGISTRAR PAGE 5 OF 5 DATE DRAFT DICTATED ON 6 .0 3 .2017 DRAFT PLACED BEFORE AUTHOR 7 .0 3 .2017 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS 0 7 . 3.2017 KEPT FOR PRONOUNCEMENT ON FILE SENT TO THE BENCH CLERK 0 7 .3.2017 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.