Mr.Aslam Zackria Sait, Bangalore V. Income Tax Officer, Bangalore

ITA 453/BANG/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5387 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 23-02-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G KAMALADHAR
• Assessee Lawyers: PRASHANTH G S; NITISH RANJAN
• Keywords: Capital asset; Cost of acquisition
• Section: 143(3); 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI. VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI. INTURI RAMA RAO, ACCOUNTANT MEMBER ITA NO.453/BANG/2017 ASSESSMENT YEAR : 2012-13 SHRI. ASLAM ZACKRIA SAIT, 6/4, MARTELLO BOULEVARD, 3 RD FLOOR, MUSEUM ROAD, BENGALURU-560001. PAN : ABOPS 8691 J VS. INCOME TAX OFFICER, WARD-1(2)(3), 6 TH FLOOR, HMT BHAVAN, BELLARY ROAD, BENGALURU-560032. APPELLANT RESPONDENT ASSESSEE BY : SHRI. PRASHANTH G. S, CA AND SHRI. NITISH RANJAN, CA REVENUE BY : SHRI. G. KAMALADHAR, STANDING COUNSEL DATE OF HEARING : 27.03.2017 DATE OF PRONOUNCEMENT : 17.05.2017 O R D E R PER INTURI RAMA RAO, ACCOUNTANT MEMBER THIS APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)1, BANGALORE DATED 21/12/2016 FOR TH E ASSESSMENT YEAR 2012-13. THE APPELLANT RAISED THE FOLLOWING GROUND S OF APPEAL: ITA NO. 453/BANG/2017 PAGE 2 OF 16 2. THE BRIEF FACTS OF THE CASE ARE THE APPELLANT IS AN INDIVIDUAL DERIVING INCOME UNDER THE HEAD BUSINESS. THE APP ELLANT FILED THE ITA NO. 453/BANG/2017 PAGE 3 OF 16 RETURN OF INCOME FOR THE ASSESSMENT YEAR 2012-13 ON 29.09.2012 DECLARING A TOTAL INCOME OF RS.1,08,74,100/-. AGAI NST THE SAID RETURN OF INCOME, THE ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 VIDE ORDER DATED 25.03.2015 A T A TOTAL INCOME OF RS. 5,82,86,900/-. THE DISPARITY BETWEEN THE RE TURNED INCOME AND THE ASSESSED INCOME IS ON ACCOUNT OF DENIAL OF CLAI M FOR EXEMPTION UNDER SECTION 54 OF THE INCOME TAX ACT, 1961 AMOUNT ING TO RS.4,74,12,802/-. THE BRIEF FACTS LEADING TO THIS ADDITION ARE AS UNDER: THE APPELLANT WAS OWNING AN APARTMENT NO. 7, ON THE THIRD FLOOR OF ROCKLINE WEST END HAVING A SUPER BUILD-UP AREA OF 4777 SQ. FT. AND THE APPELLANT HAD SOLD THE SAID PROPERTY FOR A TOTA L SALE CONSIDERATION OF RS.7,25,00,000/- VIDE SALE DEED DATED 17.08.2011. THE APPELLANT HAD DETERMINED THE CAPITAL GAINS AT RS.4,62,36,920/- AF TER DEDUCTION OF INDEXED COST OF ACQUISITION, COST OF IMPROVEMENT AN D COMMISSION PAYMENT AGGREGATING TO RS.2,62,63,080/-. THE CASE OF THE APPELLANT IS THAT HE PAID A SUM OF RS.4,75,00,000/- VIDE CHEQUE NO.000018 DATED 08.06.2012 TO M/S. ROCKLINE HOUSING DEVELOPMENT PVT . LTD., TOWARDS PURCHASE OF THE RESIDENTIAL PROPERTY BEING BUILT BY THE SAID COMPANY IN ROCKLINE SEETHALAKSHMI PROJECT AT KASTURBA ROAD, WARD NO. 111, BANGALORE-560001 AND RECEIPT OF THIS MONEY WAS ACKN OWLEDGED BY THE ITA NO. 453/BANG/2017 PAGE 4 OF 16 SAID COMPANY VIDE RECEIPT DATED 13.06.2012. ACCOR DINGLY, THE APPELLANT CLAIMED A DEDUCTION UNDER SECTION 54 OF I NCOME TAX ACT, OF RS.4,62,36,920/-. THE SAME WAS DENIED BY THE ASSES SING OFFICER BY SETTING OUT THE FOLLOWING FACTS: AS PER PROVISIONS OF SECTION 54 OF THE I.T. ACT, T HE EXEMPTION IS AVAILABLE WHERE THE ASSESSEE HAS WITHI N ONE YEAR BEFORE OR TWO YEARS AFTER THE DATE OF TRANSFER PURCHASED OR WITHIN THREE YEARS AFTER THE DATE OF T RANSFER CONSTRUCTED A RESIDENTIAL HOUSE BY REINVESTING THE NET SALE PROCEEDS. THE FOLLOWING ARE THE POINTS BEING RAISE D AGAINST THE ASSESSEE FOR THE CLAIM OF BENEFIT U/S 5 4 OF THE I.T. ACT: A) PAYMENT IS HELD BY THE CLOSE ASSOCIATE, WHERE THE ASSESSEE HAS SUBSTANTIAL INTEREST: THE AMOUNT REINVESTED BY THE ASSESSEE FOR ACQUIRING THE CAPITAL ASSET IS ONE WHERE THE ASSESSEE HIMSELF IS THE DIRECTOR OF THE COMPANY AND ALSO HOLDING SUBSTANTIAL SHARE CAPITAL IN THE COMPANY. AFTER TH E RECEIPT OF SALE CONSIDERATION THE ASSESSEE KEPT THE AMOUNT IN MUTUAL FUNDS FOR QUITE SOME TIME AND TRANSFERRED THE AMOUNT TO THE PVT. LIMITED C OMPANY WHERE HE IS HOLDING BENEFICIAL INTEREST. FROM THE VERIFICATION OF FACTS SUBMITTED BY THE ASSESSEE THE PROJECT REFERRED WAS ONLY A CONCEPT ON THE DATE OF REINVESTMENT, SINCE THE ASSESSEE HAS APPLIED FOR TH E PLAN SANCTION TO THE BBMP ONLY ON 07.01.2013. WHEREAS THE INVESTMENT IS MADE ON 08.06.2012. B) AMOUNT INVESTED IS NOT UTILIZED: THE ASSESSEE MADE THE INVESTMENT AS PER THE SUBMISSION ON 08.06.2012 IN THE PRIVATE LTD. COMPANY WHERE THE ASSESSEE HAS BUSINESS INTEREST. FROM THE DATE OF INVESTMENT TILL THE DATE OF THIS ORDER THE BUILDER HAS NOT UTILIZED THE FUND IN TOTA L FOR THE PROJECT PROPOSED. ITA NO. 453/BANG/2017 PAGE 5 OF 16 C) NO IDENTITY OF THE CAPITAL ASSET ACQUIRED: IT IS LEARNED FROM THE SUBMISSION THAT THE ASSESSEE IN HIS INDIVIDUAL CAPACITY HAS NOT ENTERED INTO A RETU RN AGREEMENT SPECIFYING CONDITIONS OF THE RESIDENTIAL SPACE ACQUIRED FROM THE DEVELOPER COMPANY. IN FACT, LOCATION OF THE PROPERTY, FLOW AND SQ. FT. AR EA ALSO NOT DECIDED ON THE DATE OF PAYMENT. THE INVESTMENT IS ONLY AMOUNTS TO ON ACCOUNT TRANSFER T O THE SISTER CONCERN WITHOUT ANY IDENTIFICATION OF TH E ASSET ACQUIRED. THE ALLOTMENT LETTER RECEIVED BY T HE ASSESSEE PRIOR TO THE PAYMENT IS REPRODUCED AS UNDER: WEDNESDAY, 7 TH JUNE 2012 TO MR. ASLAM ZACKRIA SAIT MARTELLO BOULEVARD THIRD FLOOR, NO. 6/4 MUSEUM ROAD BANGALORE-560001. DEAR SIR, SUB: ALLOTMENT OF RESIDENTIAL SPACE WITH REFER TO THE ABOVE AND THE DISCUSSION HAD WITH YOUR GOODSELF WE HEREBY ALLOT YOU THE RESIDENTIAL SPACE IN THE UPPER FLOOR, IN THE COMMERCIAL CUM RESIDENTIAL COMPLEX KNOWN AS ROCKLINES SEETHAALAKSHMI BEARING CORPORATION NO.21 SITUATED AT KASTURBA ROAD, BANGALORE, TOGETHER WITH COMMON AREA, COMMON FACILITIES, COMMON OPEN SPACE, COMMON STAIR CASE, COMMON WATER AND SANITATION, SEPARATE ELECTRICITY. THANKING YOU, YOURS TRULY, ITA NO. 453/BANG/2017 PAGE 6 OF 16 FOR ROCKLINES HOUSING DEVELOPMENT PVT LTD SD/- MOHAMMED DAANISH ZACKRIA MANAGING DIRECTOR THE BUILDING PROPOSED CONSIST OF TWO BASEMENT FLOOR + GROUND FLOOR + 17 UPPER FLOORS. FURTHER, AS PER THE DETAILS SUBMITTED IT IS A COMMERCIAL CUM RESIDENTIAL BUILDING. THE DEVELOPER HAS NOT IDENTIFIED THE COMMERCIAL PORTION AS WELL AS THE RESIDENTIAL PORTION OF THE BUILDING. UNDER THIS CIRCUMSTANCE, JUST EARMARKING SPACE IN THE UPPER FLOOR CANNOT BE DENOTIFIED CLEARLY THE ACQUIRED ASSET IS OF RESIDENTIAL IN NATURE AND EXEMPTION U/S 54 OF THE I.T. ACT CAN BE GRANTED ONLY ON INVESTMENT I N RESIDENTIAL PROPERTY. D) CAN THE BENEFIT U/S 54 CAN BE ALLOWED INDEFINITELY?: IN THE REFERRED CASE ASSESSEE SOLD THE PROPERTY ON 17.08.2011. ACCORDINGLY, THE ASSESSEE HAS TO PURCHASE THE APARTMENT U/S 54 WITHIN TWO YEARS OF TIME I.E., 17.08.2013. THE REINVESTMENT CLAIMED BY THE ASSESSEE IS 08.06.2012. THE APPLICATION FOR TH E CONSTRUCTION OF THE GROUND + 17 UPPER FLOORS APPLIED TO BBMP ONLY ON 7.1.2013. FURTHER, THE ASSESSEE APPLIED FOR COMMENCEMENT CERTIFICATE ON 30.1.2015 WHICH IS PENDING. AS PER THE CONSULTATIO N REPORT OF THE IISC, BANGALORE DATED FEBRUARY, 2013 THE STABILITY ANALYSIS OF THE BUILDING PROPOSED INDICATES THE POSSIBLE TECHNICAL ISSUES CONCERNING THE CONSTRUCTION THEREBY THE DATE OF COMPLETION OF THE PROJECT BECOMES INDEFINITE. UNDER THIS CIRCUMSTANCES AN ANSWER IS NEEDED IF THE ASSESSEE LIABLE TO CAPITAL GAIN ALLOWED TO HAVE POSSESSION OF THE PROPERTY FOR INDEFINITE PERIOD AD IN CASE IF THE ALLOTMENT LETTER FROM THE ASSESSEES ITA NO. 453/BANG/2017 PAGE 7 OF 16 RELATED COMPANY GETS CANCELLED BY THE ASSESSEE SUBSEQUENTLY AND AFTER LAPSE OF THE LEGAL TIME LIMI T, WILL THE REVENUE ABLE TO RECOVER THE REVENUE LOSS MADE BY THE ASSESSEE BY SUCH CANCELLATION? IF THERE IS NO REMEDY FOR THE SAME UNDER THE ACT, THEN THE REVENUE LOSS IS MANY CASES CANNOT BE COMPENSATED. THE PROVISO EMPHASIS TIME LIMIT FOR THE COMPLETION WITHIN THE SPECIFIED PERIOD IS ONLY TO MONITOR THAT SUCH REVENUE LOSS CAN BE PLUGGED. E) NO LEGAL TITLE ON THE REINVESTMENT: AS A GENERAL PRINCIPLE OF LAW AN IMMOVABLE PROPERTY IS SAID TO BE TRANSFERRED WHEN THE CONVEYANCE IS REGISTERED AND THE POSSESSION OF THE SAME IS HANDED OVER TO THE ASSESSEE. AS ON THE DAY , AFTER 3 YEARS OF PAYMENTS MADE ON REINVESTMENT, THE ASSESSEE DO NOT HAVE ANY LEGAL ENTITLEMENT OVER THE NEW ASSET ACQUIRED. THIS IS NO REGISTERED DOCUMENT OF AGREEMENT TO SELL OR AGREEMENT TO CONSTRUCT AS EVIDENT THAT THE MONEY TRANSFERRED TO THE PRIVATE LIMITED COMPANY BY THE DIRECTOR IN HIS INDIVIDUAL CAPACITY AMOUNTS TO REINVESTMENT. F) AMOUNT OF CAPITAL GAINS LOST IDENTITY: FROM THE RECTIFICATION OF THE BANK ACCOUNT OF THE ASSESSEE, IT IS LEARNED THAT THE ASSESSEE HAS MANY DEBIT AND CREDIT PAYMENTS WITH THE DEVELOPER COMPANY AS DIRECTOR OF THE COMPANY. IN THAT EVENT THE PAYMENT MADE BY THE ASSESSEE ON 8.6.2012 CANNOT BE CONCLUDED THAT IT IS THE MONEY OUT OF THE SALE OF THE PROPERTY. THE SALE CONSIDERATION AND T HE CAPITAL GAIN HAD BY THE ASSESSEE LOST ITS IDENTITY UNDER THE CIRCUMSTANCES. ASSESSEE CANNOT CLAIM TH E AMOUNT DEBITED TO THE RELATED COMPANY IS ONLY THE CAPITAL GAIN AMOUNT AND THE INTENTION IS ONLY FOR REINVESTMENT. ITA NO. 453/BANG/2017 PAGE 8 OF 16 G) ACCOUNTING GO AGAINST THE ASSESSEES CLAIM: THE ASSETS SIDE OF THE STATEMENT OF AFFAIRS OF THE ASSESSEE AS ON 31.03.2012 IS AS UNDER: FROM THE VERIFICATION OF THE ABOVE IT IS CLEAR THAT THE ASSESSEE HAS NOT CONSIDERED THE REINVESTMENT MADE IN THE PRO JECT OF M/S. ROCKLINE SEETHAALAKSHMI EITHER IN FIXED ASSETS OR INVESTMENT. HE HAS GROUPED THE PAYMENT MADE U/S 54 OF THE I. T. ACT UN DER THE HEADING LOANS AND ADVANCES. HENCE IT IS EVIDENT FROM THE A SSESSEES CLAIM IN THE STATEMENT OF AFFAIRS THAT THE AMOUNT TRANSACTED REFERRED ABOVE IS CLAIMED AS LOAN AND ADVANCES ONLY. SO THE ASSESSEE HIMSELF CLAIMS IT AS LOAN AND ADVANCES AND TREAT THE PAYMENT AS, NOT AS REINVESTMENT, ESTABLISHES THAT HE IS NOT ELIGIBLE FOR CLAIM OF EX EMPTION. 3. THE SUM AND SUBSTANCE OF THE CASE OF THE ASSESSI NG OFFICER IS THAT THE SAID AMOUNT WAS PAID AS A LOAN NOT AGAINST PURCHASE OF ITA NO. 453/BANG/2017 PAGE 9 OF 16 RESIDENTIAL PREMISES AND THERE WAS NO AGREEMENT OF SALE ENTERED FOR PURCHASE OF SAID PREMISES AND THERE WAS NO RESIDENT IAL PROPERTY EXISTING WHICH IS CAPABLE OF BEING TRANSFERRED IN F AVOUR OF THE APPELLANT AS THE PERMISSION WAS APPLIED BY THE SAID COMPANY T O BBMP FOR THE CONSTRUCTION OF GROUND + 17 UPPER FLOORS ONLY ON 7. 1.2013. IT WAS FURTHER NOTED THAT THE BUILDER APPLIED FOR CERTIFIC ATE OF COMMENCEMENT ONLY ON 30.01.2015. THESE FACTS MADE THE ASSESSING OFFICER TO BELIEVE THAT THERE IS NO PROPERTY WHICH IS CAPABLE OF BEING REGISTERED IN FAVOUR OF THE APPELLANT. THE AO FURTHER OBSERVED THAT THE RE WAS NO REGISTERED DOCUMENT OF AGREEMENT TO SELL AND IN VIEW OF THE FA CT THAT THE APPELLANT IS ALSO A PARTNER IN THE COMPANY CALLED ROCKLINE HO USING DEVELOPMENT PVT. LTD. ALL THESE FACTORS ENABLED THE AO TO DISB ELIEVE THAT THE PAYMENT OF RS. 4,75,00,000/- WAS NOT MADE TOWARDS P URCHASE OF THE HOUSE PROPERTY. HENCE THE AO DENIED THE CLAIM. 4. BEING AGGRIEVED, THE APPELLANT PREFERRED AN APPE AL BEFORE THE CIT(A). THE CIT(A) CONFIRMED THE ADDITION IN THE F OLLOWING WORDS: 4. IT IS SEEN THAT THE AMOUNT REINVESTED BY THE ASSESSEE FIRM ACQUIRING THE CAPITAL ASSET IS ON E WHERE THE ASSESSEE HIMSELF IS THE DIRECTOR OF THE COMPANY AND ALSO HOLDING SUBSTANTIAL SHARE CAPITAL IN THE COMPANY. AFTER THE RECEIPT OF SALE CONSIDERATION THE ASSESSEE KEPT THE AMOUNT IN ITA NO. 453/BANG/2017 PAGE 10 OF 16 MUTUAL FUNDS FOR QUITE SOME TIME AND TRANSFERRED THE AMOUNT TO THE PVT. LIMITED COMPANY WHERE HE IS HOLDING BENEFICIAL INTEREST. FROM THE VERIFICATION OF FACTS SUBMITTED BY THE ASSESSEE THE PROJECT REFERRED WAS ONLY A CONCEPT ON THE DATE OF REINVESTMENT, SINCE THE ASSESSEE HAS APPLIED FOR TH E PLAN SANCTION TO THE BBMP ONLY ON 7.1.2013. WHEREAS THE INVESTMENT IS MADE ON 8.6.2012. 5. BEING AGGRIEVED, THE APPELLANT IS BEFORE US IN T HE PRESENT APPEAL. THE LEARNED AR OF THE APPELLANT VEHEMENTLY CONTENDE D THAT THE ACQUIRED PROPERTY COULD NOT BE REGISTERED IN FAVOUR OF THE APPELLANT ONLY FOR THE REASONS WHICH ARE BEYOND THE CONTROL O F THE APPELLANT. THE RESIDENTIAL HOUSE COULD NOT BE REGISTERED IN FAVOUR OF THE APPELLANT ON ACCOUNT OF DELAY IN THE COMPLETION OF THE PROJECT B Y THE DEVELOPER AND SINCE THE ENTIRE CONSIDERATION HAD BEEN PAID, THE D EDUCTION SHOULD BE ALLOWED TO THE ASSESSEE AND SINCE THE PROVISIONS OF SECTION 54 ARE BENEFICIAL PROVISIONS, THE PROVISION SHOULD RECEIVE A LIBERAL CONSTRUCTION AND SHOULD BE CONSTRUED IN FAVOUR OF T HE ASSESSEE AND RELIANCE IN THIS REGARD WAS PLACED ON THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. SAMBANDAM UDAYKUM AR 345 ITR 389. IT WAS FURTHER SUBMITTED THAT IN ORDER TO GE T THE BENEFIT OF SECTION 54 IT IS NOT MANDATORY CONDITION THAT THE CONSTRUC TION HOUSE SHOULD BE COMPLETED. IT IS ENOUGH FOR THE ASSESSEE TO ESTABL ISH THAT THE ASSESSEE ITA NO. 453/BANG/2017 PAGE 11 OF 16 HAD INVESTED THE CONSIDERATION WITHIN THE STIPULATE D PERIOD AND RELIANCE WAS PLACED ON THE FOLLOWING DECISIONS: CIT VS. MRS. SHAKUNTALA DEVI 389 ITR 366 (KAR) PR. CIT VS. C. GOPALASWAMY, 384 ITR 307 (KAR) CIT VS. B S SHANTHAKUMARI, 126 DTR 436 (KAR) 6. RELIANCE WAS ALSO PLACED ON THE DECISION OF FIBR E BOARDS (P) LTD. VS. CIT 378 ITR 596 IN SUPPORT OF THE PROPOSIT ION THAT THE EXEMPTION UNDER SECTION 54 CANNOT BE DENIED MERELY FOR THE REASON THAT THE DEVELOPER DID NOT UTILISE THE AMOUNT INVESTED B Y THE APPELLANT. ON OTHER HAND, THE LEARNED STANDING COUNSEL VEHEMENTLY CONTENDED THAT THE APPELLANT HAD FAILED TO DISCHARGE THE ONUS OF P ROVING THE REAL SUBSTANCE OF THE TRANSACTION IN VIEW OF THE FACT TH AT THE APPELLANT HAD INTEREST IN THE COMPANY CALLED ROCKLINE HOUSING DEV ELOPMENT COMPANY AS A DIRECTOR AND THERE WAS NO PROPERTY EXI STING WHICH IS CAPABLE OF BEING TRANSFERRED IN FAVOUR OF THE APPEL LANT. THE THEORY ADVANCED BY THE APPELLANT IS ONLY MAKE BELIEVE STOR Y AND THERE IS NO REGISTERED AGREEMENT OF SALE ON THE DATE OF PAYMENT . THE REGISTERED SALE AGREEMENT WAS ENTERED ON 08.06.2015 AND THUS HE PRAYED THAT THE ORDERS OF THE LOWER AUTHORITIES BE UPHELD. ITA NO. 453/BANG/2017 PAGE 12 OF 16 7. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL ON RECORD. THE ONLY ISSUE THAT ARISES FOR CONSIDERATI ON IN THE PRESENT APPEAL IS WHETHER THE ASSESSEE IS ENTITLED TO BENEF IT OF DEDUCTION UNDER SECTION 54 OF THE INCOME TAX ACT, 1961. THERE IS N O DISPUTE ABOUT THE AMOUNT OF THE CAPITAL GAINS COMPUTED. THE DISPUTE IS ONLY WITH REGARD TO THE ELIGIBILITY FOR DEDUCTION UNDER SECTION 54 I N THE LIGHT OF THE FACT THAT THE PAYMENT WAS MADE TO THE BUILDER IN WHICH T HE APPELLANT HAD SUBSTANTIAL INTEREST AS A DIRECTOR AND THAT THERE W AS NO PERMISSION OBTAINED FOR CONSTRUCTION OF PROJECT IN WHICH THE A SSESSEE WAS PROPOSING TO PURCHASE FROM THE BUILDER ON DATE OF P AYMENT OF MONEY. THERE WAS NO AGREEMENT OF SALE ON THE DATE ON WHICH THE PAYMENT WAS MADE. THE AGREEMENT OF SALE WAS ENTERED ONLY ON 8. 6.2015 BUT EVEN IN TERMS OF THIS AGREEMENT OF SALE FROM THE SCHEDULE O F THE PROPERTY IT IS CLEAR THAT THE PROPERTY IS NOT IDENTIFIED BY MEANS AND BOUNDS MERELY MENTIONED AS UNDER: ALL THAT PIECE AND PARCEL OF THE RESIDENTIAL PROPE RTY BEING A PORTION OF THE COMPOSITE PROPERTY BEARING CORPORATION NO.21 (OLD NO.37), 22 AND 22/1 (OLD MUNICIPAL NO.38), SITUATED AT KASTURBA ROAD, BANGAL ORE, MEASURING 25106.954 SQUARE FEET BEING THE UNDIVIDED SHARE OF LAND AND INCLUDING ALL RIGHTS, PRIVILEGES AND APPURTENANCES THERETO AND THE PROPERTY BOUNDED AS FOLLOWS: EAST BY : PRIVATE PROPERTY WEST BY : PRIVATE PROPERTY ITA NO. 453/BANG/2017 PAGE 13 OF 16 NORTH BY : KASTURBA MAIN ROAD SOUTH BY : PRIVATE PROPERTY 8. THE PERMISSION WAS APPLIED BY THE BUILDER FOR CO NSTRUCTION OF BUILDINGS BY THE BBMP ONLY IN THE YEAR 2013 AND WE ARE INFORMED AT THE BAR THAT EVEN AS ON TODAY THE CONSTRUCTION IS N OT COMPLETED NOR WAS THE ASSESSEE HANDED OVER THE PROPERTY. THE APPELLA NT SHOWN THIS AMOUNT AS LOANS AND ADVANCES IN HIS BOOKS OF ACCOUN TS. ALL THESE FACTORS CASTS DOUBTS ON THE GENUINENESS OF KEY TRAN SACTIONS. IT IS INCUMBENT ON THE APPELLANT TO DISLODGE THESE DOUBTS BY LEADING THE NECESSARY EVIDENCES ON RECORD. BUT THE ASSESSEE MI SERABLY FAILED TO DO SO NOR ATTEMPT WAS MADE BY THE APPELLANT IN THIS DI RECTION. THEREFORE, WE ARE INCLINED TO BELIEVE THAT THIS MONEY WAS NOT ADVANCED TOWARDS PURCHASE OF ANY RESIDENTIAL HOUSE AND CONSEQUENTLY THE APPELLANT IS NOT ENTITLED TO THE BENEFIT OF DEDUCTION UNDER SECTION 54 OF THE INCOME TAX, 1961. THE SUBMISSION OF THE LEARNED AR THAT IT IS A BENEFICIAL PROVISION AND IT SHOULD BE CONSTRUED IN FAVOUR OF THE ASSESSEE CA NNOT BE ACCEPTED AS IT IS A SETTLED POSITION OF LAW THAT NO OCCASION TO GIVE A BENEFICIAL CONSTRUCTION TO A STATUTE CAN ARISE WHEN THERE IS NO AMBIGUITY IN THE PROVISION OF LAW WHICH IS SUBJECT TO INTERPRETATION. THUS IN THE FACE OF THE CLEAR WORDS OF THE STATUTE THE INTENT OF PARTIES AND/OR BENEFICIAL CONSTRUCTION IS IRRELEVANT. IN F ACT, THE APEX COURT IN ITA NO. 453/BANG/2017 PAGE 14 OF 16 SALES TAX COMMISSIONER VS. MODI SUGAR MILLS [1961] 12 STC 182 REITERATED THE WELL SETTLED PRINCIPLE OF INTERPRETA TION IN THE FOLLOWING WORDS: IN INTERPRETING A TAXING STATUTE, EQUITABLE CONSID ERATIONS ARE ENTIRELY OUT OF PLACE. NOR CAN TAXING STATUTE BE INTERPRETE ON ANY PRESUMPTION OR ASSUMPTIONSIT MUST INTERPRET A TAXING STATUTE IN THE LIGHT OF WHAT IS CLEARLY EXPRESSED RECENTLY, THE SUPREME COURT IN MATHURAM AGRAWAL VS. STATE OF MADHYA PRADESH [1999] 8 SCC 667 HAS OBSERVED AS UND ER:- THE INTENTION OF THE LEGISLATURE IN A TAXATION STA TUTE IS TO BE GATHERED FROM THE LANGUAGE OF THE PROVISIONS PARTIC ULARLY WHERE THE LANGUAGE IS PLAIN AND UNAMBIGUOUS. IN A TAXING ACT IT IS NOT POSSIBLE TO ASSUME ANY INTENTION OR GOVERNING PURPOSE OF THE STATUTE MORE THAN WHAT IS STATED IN THE PLAIN LANGUAGE. IT IS NOT TH E ECONOMIC RESULTS WHICH IS RELEVANT IN INTERPRETING A FISCAL STATUTE. EQUALLY IMPERMISSIBLE IS AN INTERPRETATION WHICH DOES NOT F OLLOW FROM THE PLAIN, UNAMBIGUOUS LANGUAGE OF THE STATUTE. WORDS CANNOT BE ADDED TO OR SUBSTITUTED SO AS TO GIVE A MEANING TO THE STATU TE WHICH WILL SERVE THE SPIRIT AND INTENTION OF THE LEGISLATURE.. (EM PHASIS SUPPLIED) SIMILARLY THIS COURT IN THANA ELECTRICITY (SUPRA) HAD OBSERVED AS UNDER : IF THE PROVISION OF A TAXING STATUTE CAN BE REASON ABLY INTERPRETED IN TWO WAYS, THAT INTERPRETATION WHICH IS FAVOURABLE TO THE ASSESSEE HAS GOT TO BE ACCEPTED. THIS IS A WELL-ACCEPTED VIEW OF LAW. IT IS THE SATISFACTION OF THE COURT I NTERPRETING THE LAW THAT THE LANGUAGE OF THE TAXING STATUTE IS AMBI GUOUS OR REASONABLY CAPABLE OF MORE MEANINGS THAN ONE, WHICH IS MATERIAL. IF THE COURT DOES NOT THINK SO, THE FACT THAT TWO ITA NO. 453/BANG/2017 PAGE 15 OF 16 DIFFERENT VIEWS HAVE BEEN ADVANCED BY THE PARTIES A ND ARGUED FORCEFULLY OR THAT ONE SUCH VIEW WHICH IS FAVOURABL E TO THE ASSESSEE HAS BEEN ACCEPTED BY SOME TRIBUNAL OR HIGH COURT, BY ITSELF WILL NOT BE SUFFICIENT TO ATTRACT THE PRINCI PLE OF BENEFICIAL INTERPRETATION. IN THE PRESENT FACTS AND PROVISION OF SECTION 54F(4 ) OF THE ACT ARE VERY CLEAR. THERE IS NO AMBIGUITY. THUS, THER E IS NO OCCASION TO APPLY LIBERAL/BENEFICIAL CONSTRUCTION W HILE INTERPRETING THE SECTION AS CONTENDED BY THE APPELL ANT. 9. THE OTHER SUBMISSION OF THE APPELLANT THAT SINCE THE ENTIRE CONSIDERATION WAS PAID TO THE BUILDER, THE BENEFIT UNDER SECTION 54 SHOULD BE GRANTED TO THE ASSESSEE CANNOT BE ACCEPT ED FOR THE REASON THAT THE GENUINENESS OF THE VERY TRANSACTION WAS NO T PROVED, AS HELD BY US (SUPRA). 10. IN THE RESULT, APPEAL FILED BY THE APPELLANT IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS 17 TH DAY OF MAY, 2017. SD/- SD/- (VIJAY PAL RAO) (INTURI RAMA RAO) JUDICIAL MEMBER ACC OUNTANT MEMBER BANGALORE. DATED: 17 TH MAY, 2017. /NSHYLU/* ITA NO. 453/BANG/2017 PAGE 16 OF 16 COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.