ACIT, New Delhi V. M/s. Sanjay Khurana, New Delhi

ITA 4706/DEL/2015

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2892 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 16-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NAINA SOIN KAPIL SENIOR
• Keywords: Cost of acquisition; Revised return; Set aside
• Section: 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D : NEW DELHI) BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO.4706/DEL./2015 (ASSESSMENT YEAR : 2012-13) ACIT, CIRCLE 54 (1), VS. M/S. SANJAY KHURANA, NEW DELHI. C 76, DEFENCE COLONY, NEW DELHI. (PAN : AAGPK4239D) (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SMT. NAINA SOIN KAPIL, SENIOR DR DATE OF HEARING : 26.08.2019 DATE OF ORDER : 03.09.2019 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, ACIT, CIRCLE 54 (1), NEW DELHI (HEREINA FTER REFERRED TO AS THE REVENUE) BY FILING THE PRESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 05.05.2015 PASSE D BY THE COMMISSIONER OF INCOME - TAX (APPEALS)-18, NEW DEL HI QUA THE ASSESSMENT YEAR 2012-13 ON THE GROUNDS INTER ALIA T HAT :- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.3,21,83,50 4/- ON ACCOUNT OF LONG TERM CAPITAL GAIN MADE BY THE AO BY NOT APP RECIATING THE FACT THAT THERE IS NO PROVISION UNDER THE INCOME TA X ACT TO REDUCE THE RETURNED INCOME OF THE ASSESSEE OTHERWIS E THAN BY ITA NO.4706/DEL./2015 2 FILING A REVISED RETURN OF INCOME FILED IN TIME ALL OWED BY THE PROVISIONS OR THE IT ACT. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT THE ASS ESSEE IS NOT ELIGIBLE TO CLAIM DEDUCTION U/S 54F AS THE ASSESSEE IS HAVING MORE THAN ONE RESIDENTIAL HOUSE ON THE DATE OF PURCHASE OF THE NEW ASSET. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN NOT APPRECIATING THE FACT THAT THE ASS ESSEE HAS INVESTED IN THE SAID PROPERTY ON WHICH HE IS CLAIMI NG DEDUCTION ON 20.01.2010 I.E. 1 YEAR AND 7 MONTHS BEFORE THE S ALE OF THE ORIGINAL ASSET WHICH IS BEYOND THE LIMITATION PERIO D. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICAT ION OF THE ISSUE AT HAND ARE : ASSESSING OFFICER (AO) MADE ADD ITION OF RS.3,21,83,504/- TO THE RETURNED INCOME OF THE ASSE SSEE OF THE LONG TERM CAPITAL GAIN BY DECLINING THE DEDUCTION CLAIME D BY THE ASSESSEE UNDER SECTION 54 OF THE INCOME-TAX ACT, 19 61 (FOR SHORT THE ACT) ON THE GROUND THAT MAJOR PAYMENT HAS BEE N MADE BY THE ASSESSEE TO PURCHASE THE PROPERTY ON 12.08.2011 AND ALSO ON THE GROUND THAT THE ASSESSEE IS NOT ENTITLED FOR DEDUCT ION U/S 54F AS THE ASSESSEE IS HAVING MORE THAN ONE RESIDENTIAL HOUSE. 3. ASSESSEE CARRIED THE MATTER BY WAY OF AN APPEAL BEFORE THE LD. CIT (A) WHO HAS DELETED THE ADDITION BY ALLOWIN G THE APPEAL. FEELING AGGRIEVED, THE REVENUE HAS COME UP BEFORE T HE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. ASSESSEE HAS NOT PREFERRED TO PUT IN APPEARANCE DESPITE ISSUANCE OF THE NOTICE AND CONSEQUENTLY, WE PROCEED ED TO DECIDE ITA NO.4706/DEL./2015 3 THE PRESENT APPEAL WITH THE ASSISTANCE OF THE LD. D R AS WELL AS ON THE BASIS OF DOCUMENTS AVAILABLE ON THE FILE. 5. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E FOR THE REVENUE TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 6. UNDISPUTEDLY, ASSESSEE HAS SOLD ITS PROPERTY DUR ING THE YEAR UNDER ASSESSMENT SITUATED AT D 107, ANAND NIKETAN , NEW DELHI ON 12.08.2011 PURCHASED ON 07.04.2000 AND COMPUTED THE LONG TERM CAPITAL GAIN ACCRUED ON SUCH PROPERTY AS UNDER :- PARTICULARS AMOUNT (RS.) SALE CONSIDERATION 3,98,00,000/- LESS : INDEXED COST OF ACQUISITION 73,47,291/- CAPITAL GAIN 3,24,52,709/- LESS : DEDUCTION U/S 54 ( IN THE REVISED COMPUTATION) IN THE ORIGINAL RETURN IT WAS CLAIMED AS 54F 3,24,52,709/- BALANCE NIL 7. IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE HAS FILED REVISED COMPUTATION AND IN THE ORIGINAL COMPUTATION, THE WO RD 54F WAS MISSING AND CLAIMED THE SAME TO BE A CLERICAL ERROR . IT IS ALSO NOT IN DISPUTE THAT THE AO HAS REJECTED THE REVISED COMPUT ATION FILED BY THE ASSESSEE ON THE GROUND THAT THE SAME WAS NOT FI LED ON ITS OWN. 8. HOWEVER, LD. CIT (A) BY RELYING UPON NUMEROUS JU DGMENTS DELIVERED BY HONBLE HIGH COURTS AND COORDINATE BEN CHES OF THE ITA NO.4706/DEL./2015 4 TRIBUNAL AND HONBLE SUPREME COURT IN CASE OF GOETZE (INDIA) LTD. VS. CIT 157 TAXMANN.COM 1 (SC) ALLOWED THE CLAIM OF THE ASSESSEE MADE U/S 54 OF THE ACT. WE ARE OF THE CON SIDERED VIEW THAT WHEN CLAIM OF THE ASSESSEE U/S 54 IS OTHERWISE ADMISSIBLE, THE SAME CANNOT BE DENIED ON THE SOLE GROUND THAT SUCH CLAIM WAS NOT MADE IN THE ORIGINAL RETURN OF INCOME. 9. NOW, THE SECOND QUESTION ARISES FOR DETERMINATIO N IN THIS CASE IS, WHETHER THE ASSESSEE IS ENTITLED FOR BENE FIT OF DEDUCTION U/S 54 OF THE ACT ON MERITS. IT IS THE CASE OF TH E AO THAT AFTER SALE OF PROPERTY BY THE ASSESSEE, NEW PROPERTY SITUATED AT C-76, DEFENCE COLONY, NEW DELHI VIDE SALE DEED DATED 20.01.2010 W AS NOT PURCHASED WITHIN ONE YEAR BEFORE ACCRUING THE LONG TERM CAPITAL GAIN. HOWEVER, IT IS THE CASE OF THE ASSESSEE THAT HE HAS ENTERED INTO AN AGREEMENT TO SELL TO PURCHASE THE HOUSE ON 19.11.2010 AND THE OWNERSHIP WAS AGREED TO BE TRANSFERRED TO THE B UYER LATEST BY 17.01.2011 (WITHIN 60 DAYS) BUT THE SALE DEED WAS E XECUTED ONLY ON 12.08.2011 DUE TO LEGAL COMPLICATION. IT IS ALS O THE CASE OF THE ASSESSEE THAT ALL THE PAYMENTS HAVE BEEN MADE ON OR BEFORE 20.01.2010 I.E. WITHIN A PERIOD OF ONE YEAR FROM TH E DATE OF ACCRUAL OF LONG TERM CAPITAL GAIN. 10. LD. CIT (A), AFTER EXAMINING ALL THE LEGAL COMP LICATIONS BROUGHT ON RECORD BY THE ASSESSEE IN NOT EXECUTING THE SALE DEED IN ITA NO.4706/DEL./2015 5 HER FAVOUR WITHIN TIME, REACHED THE CONCLUSION THAT THE PROPERTY SITUATED AT C-76, DEFENCE COLONY, NEW DELHI WAS PUR CHASED BY THE ASSESSEE IN NOVEMBER 2010 WHEN VACANT POSSESSION OF THE PROPERTY WAS ALSO TAKEN BY THE ASSESSEE AS PER AGREEMENT DAT ED 05.09.2010. WHEN IT IS PROVED ON RECORD THAT THE SALE DEED DATE D 12.08.2011 HAS BEEN EXECUTED IN TERMS OF THE AGREEMENT O SELL DATED 19.11.2010 AND WHEN MAJOR PORTION OF THE SALE CONSI DERATION WAS PAID AND POSSESSION OF THE PROPERTY WAS TAKEN OVER BY THE ASSESSEE, THE SALE OF THE PROPERTY WOULD CERTAINLY RELATE BAC K TO THE DATE OF AGREEMENT TO SELL DATED 05.09.2010 WHICH IS WELL WI THIN THE PERIOD STIPULATED FOR GETTING THE BENEFIT U/S 54 OF THE AC T. SO, FINDING NO ILLEGALITY OR PERVERSITY IN THE IMPUGNED ORDER PASS ED BY THE LD. CIT (A), PRESENT APPEAL FILED BY THE REVENUE IS HEREBY DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 3 RD DAY OF SEPTEMBER, 2019. SD/- SD/- (PRASHANT MAHARISHI) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 3 RD DAY OF SEPTEMBER, 2019 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-18, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.