Mrs. Monika Jain, New Delhi V. ITO, Faridabad

ITA 4954/DEL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7339 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC 2
• Next Hearing Date: 04-08-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 31-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KAUSHLENDRA TIWARI
• Assessee Lawyers: AKASH CHUGH
• Keywords: Valuation report; Benefit of exemption
• Section: 143(3); 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC NEW DELHI BEFORE SHRI H. S. SIDHU, JUDICIAL MEMBER I.T.A. NOS. 4954/DEL/2015 ASSESSMENT YEAR: 2011-12 MONIKA JAIN, VS. ITO, WARD II(2) LGF-7A, NRI COMPLEX, FARIDABAD MANDAKINI, GREATER KAILASH-IV, NEW DELHI (PAN: AACPJ3778Q) (ASSESSEE) (RESPONDENT) ASSESSEE BY : SH. AKASH CHUGH, CA REVENUE BY : SH. KAUSHLENDRA TIWARI, SR. DR ORDER THIS APPEAL IS FILED BY ASSESSEE AGAINST THE ORDER PASSED BY THE LD. CIT(A), FARIDABAD RELATING TO ASSESSMENT Y EAR 2011-12 ON THE FOLLOWING GROUNDS:- 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. ASSESSING AUTHORITY AND LD. FIRST APPELLATE AUTHORI TY HAVE GROSSLY ERRED IN NOT ALLOWING THE CLAIM OF EXEMPTIO N IN TERMS OF SECTION 54 OF THE ACT IN RESPECT OF LONG TERM CA PITAL GAIN ARISING ON SALE OF RESIDENTIAL FLAT AT VARSOVA (MUM BAI) AGAINST THE PURCHASE OF NEW RESIDENTIAL PLOT MADE D URING THE YEAR, WHICH IS GROSSLY INJUDICIOUS, UNWARRANTED AGAINST THE FACTS AND BAD IN LAW. 2 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. ASSESSING AUTHORITY AND LD. FIRST APPELLATE AUTHORI TY HAVE GROSSLY ERRED IN HOLDING THAT NO GROUND HAS BEEN RA ISED BY THE ASSESSEE REGARDING CLAIM OF EXEMPTION U/S 54 AT ANY STAGE DURING APPELLATE PROCEEDINGS, WHICH IS ARBITR ARY, INJUDICIOUS AND AGAINST THE FACTS OF THE CASE. 3. IN THE FACTS AND CIRCUMSTANCES OF THE. CASE, THE LD. ASSESSING AUTHORITY AND LD. FIRST APPELLATE AUTHORI TY HAVE GROSSLY ERRED IN ALLEGING THAT ASSESSEE OWNED A RES IDENTIAL HOUSE AND NO DETAILS WERE GIVEN IN THIS REGARD, THE REFORE, ASSESSEE IS NOT ENTITLED FOR EXEMPTION FOR LONG TER M CAPITAL GAIN WHICH IS ARBITRARY, UNWARRANTED AND AGAINST TH E FACTS OF THE CASE. 4. THE LD. ASSESSING AUTHORITY AND LD. FIRST APPEL LATE AUTHORITY HAVE GROSSLY ERRED IN DISALLOWING THE COS T OF CONSTRUCTION OF FLAT AS CLAIMED BY THE ASSESSEE BAS ED ON THE VALUATION REPORT OF REGISTERED VALUER AND IN FACT N OT ALLOWING ANY COST OF CONSTRUCTION OF FLAT WHILE COMPUTING SH ORT TERM CAPITAL GAINS ON SALE OF CONSTRUCTION PORTION OF FL AT WHICH IS GROSSLY INJUDICIOUS, ARBITRARY AND BAD IN LAW. 3 5. THE APPELLANT PRAYS FOR LEAVE TO ADD, AMEND, AL TER OR WITHDRAW ANY GROUNDS OF APPEAL. 2. FACTS NARRATED BY THE REVENUE AUTHORITIES ARE NO T DISPUTED BY BOTH THE PARTIES, HENCE, THE SAME ARE NOT REPEAT ED HERE FOR THE SAKE OF BREVITY. 3. AS REGARDS GROUND NO. 1 TO 3 RELATING TO DENY ING THE BENEFIT OF EXEMPTION U/S. 54 OF THE ACT IS CONCERN ED, LD. COUNSEL OF THE ASSESSEE STATED THAT LD. CIT(A) HAS OBSERVED THAT AT THE TIME OF FILING THE APPEAL, THESE GROUNDS HA VE NOT BEEN RAISED AS AN ADDITIONAL GROUND AT ANY TIME DURING T HE COURSE OF APPELLATE PROCEEDINGS, EVEN THOUGH THIS WAS AN ISSU E OF ADJUDICATION BY THE AO. THUS IN VIEW OF THESE FACTS NO COMMENTS WERE OFFERED ON THIS ISSUE. HOWEVER, LD. COUNSEL OF THE ASSESSEE HAS SUBMITTED THAT THE AFORESAID FINDINGS OF THE LD . CIT(A) GIVEN IN PARA NO. 7.1 AT PAGE NO. 5 OF THE IMPUGNED ORDER ARE FACTUALLY INCORRECT, BECAUSE THE ASSESSE VIDE LETTER DATED 19 .2.2015 HAD RAISED AN ADDITIONAL GROUND FOR GRANTING BENEFIT OF EXEMPTION U/S. 54 OF THE ACT BEFORE THE LD. CIT(A), BUT WAS N OT CONSIDERED BY HIM. IN THIS BEHALF, LD. COUNSEL OF THE ASSESSEE HAS STATED THAT LD. CIT(A) HAS PASSED A NON-SPEAKING ORDER, DESPITE THE FACT THAT ASSESSEE HAS SUBMITTED ALL THE EVIDENCES AND DOCUM ENTS, WHICH NEVER COMMENTED UPON BY THE LD. CIT(A). HE FURTHER STATED THAT ASSESSEE HAS FILED ALL THE PAPERS / EVIDENCES BEFOR E THE LOWER AUTHORITIES AND ALSO CERTIFIED IT. HE FURTHER STAT ED THAT ASSESSEE IS STILL IN POSSESSION OF ALL THE PAPERS AND EVIDE NCES TO SUBSTANTIATE ITS CASE, IF THE MATTER IS SET ASIDE T O THE LD. CIT(A) TO DECIDE THE SAME AFRESH, AS PER LAW. 4 3.1 WITH REGARD TO GROUND NO. 4 RELATING TO DISALLO WING THE CLAIM OF COST OF CONSTRUCTION IS CONCERNED, LD. COUNSEL OF THE ASSESSEE HAS SUBMITTED THAT LD. CIT(A) HAS DISMISSED THIS GR OUND DUE TO NON-PRODUCTION OF EVIDENCES. HE STATED THAT NOW TH E ASSESSEE IS IN POSSESSION OF ALL THE EVIDENCES REGARDING EXPE NSES INCURRED ON CONSTRUCTION OF PROPERTY IN QUESTION. LD. COUNSE L OF THE ASSESSEE FURTHER STATED THAT PROPERTY IN QUESTION RELATED TO THREE PERSONS. LD. COUNSEL OF THE ASSESSEE DRAW MY ATTEN TION TOWARDS PAGE NO. 24 WHICH IS COPY OF SALE DEED DATED 02.07. 2010 MADE AT MUMBAI BY (I) MRS. USHA RANI JAIN, W/O SH. RATTAN B HUSHAN JAIN (II) MRS. MONIKA JAIN W/O PRASHANT JAIN (3) MR . SAURABH JAIN S/O MR. RATTAN BHUSHAN JAIN, ALL RESIDENT AT 2 4-25, NEELAM BATA ROAD, FARIDABAD, NIT HARYANA-120001. HE FURT HER STATED THAT THE PROPERTY IN QUESTION IN DISPUTE IS OWNED B Y THE THREE PERSONS INCLUDING THE ASSESSEE AND THE REVENUE AUTH ORITY HAS GIVEN THE SIMILAR RELIEF OF COST OF CONSTRUCTION TO OTHER TWO PERSONS, BUT DENIED THE SAME TO THE ASSESSEE. HE FURTHER DRAW MY ATTENTION TOWARDS THE PAGE NO. 56 TO 58 OF THE P B WHICH IS THE COPY OF THE ASSESSMENT ORDER OF SH. SAURABH JAIN U/ S. 143(3) OF THE I.T. ACT, 1961 FILED BY THE ASSESSEE. HE FURTH ER STATED THAT ALL THE EVIDENCES WITH HIM HAS BEEN FILED BEFORE THE AO AND THE LD. CIT(A), BUT HAS NOT BEEN APPRECIATED BY BOTH THE P ARTIES. THEREFORE, HE REQUESTED THAT THE ISSUE NO. 4 MAY BE SET ASIDE TO THE LD. CIT(A) TO DECIDE THE SAME AFRESH, KEEPING I N VIEW OF THE ASSESSMENT ORDER OF SH. SAURAB JAIN PASSED U/S. 143 (3) OF THE ACT (SUPRA). 4. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS PASSED BY THE LOWER AUTHORITIES AND STATED THAT ASSESSEE WA S GIVEN 5 SUFFICIENT OPPORTUNITY FOR SUBSTANTIATING HIS CLAI M, BUT HE COULD NOT AVAIL THE SAME. THEREFORE, THE ORDER OF THE AUT HORITIES BELOW ESPECIALLY THE IMPUGNED ORDER MAY BE UPHELD AND APP EAL OF THE ASSESSEE MAY BE DISMISSED. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS, ESPECIALLY THE IMPUGNED ORDER PASSED BY THE LD. CIT (A). AS REGARDS GROUND NO. 1 TO 3 RELATING TO DENYING THE BENEFIT OF EXEMPTION U/S. 54 OF THE ACT IS CONCERNED, I NOTE THAT LD. CIT(A) HAS OBSERVED THAT AT THE TIME OF FILING THE APPEAL, THESE GROUNDS HAVE NOT BEEN RAISED AS AN ADDITIONAL GROUND AT ANY TIME DURING THE COURSE OF APPELLATE PROCEEDINGS, EVEN THOUGH TH IS WAS AN ISSUE OF ADJUDICATION BY THE AO. THUS IN VIEW OF THESE FA CTS NO COMMENTS WERE OFFERED ON THIS ISSUE. HOWEVER, LD. COUNSEL OF THE ASSESSEE HAS SUBMITTED THAT THE AFORESAID FINDINGS OF THE LD . CIT(A) GIVEN IN PARA NO. 7.1 AT PAGE NO. 5 OF THE IMPUGNED ORDER ARE FACTUALLY INCORRECT, BECAUSE THE ASSESSE VIDE LETTER DATED 19 .2.2015 HAD RAISED AN ADDITIONAL GROUND FOR GRANTING BENEFIT OF EXEMPTION U/S. 54 OF THE ACT BEFORE THE LD. CIT(A), WHICH WAS NOT CONSIDERED BY HIM AND PASSED A NON-SPEAKING ORDER, WITHOUT APPRECIATING THE EVIDENCES AND DOCUMENTS FILED BEF ORE HIM. I FURTHER FIND THAT THE ASSESSEE IS IN POSSESSION OF ALL THE PAPERS AND EVIDENCES TO SUBSTANTIATE ITS CASE AND INTENDE D TO RAISE THE ADDITIONAL GROUND, IF ANY, BEFORE THE LD. CIT(A). THEREFORE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE GROUND NO. 1 TO 3 AND SENT BACK TO THE LD. CIT(A) WITH THE DIRECTION TO DECID E THE SAME AFRESH AND PASS A SPEAKING ORDER, AFTER APPRECIATIN G ALL THE DOCUMENTS, EVIDENCES, ETC. FILED BY THE ASSESSEE AN D ASSESSEE IS 6 DIRECTED TO FULLY COOPERATE WITH THE LD. CIT(A) AND DID NOT TAKE ANY UNNECESSARY ADJOURNMENT. 5.1 WITH REGARD TO GROUND NO. 4 RELATING TO DISALLO WING THE CLAIM OF COST OF CONSTRUCTION IS CONCERNED, I FIND THAT L D. CIT(A) HAS DISMISSED THIS GROUND DUE TO NON-PRODUCTION OF EVID ENCES AND ASSESSEES COUNSEL HAS STATED THAT HE IS IN POSSES SION OF ALL THE EVIDENCES REGARDING EXPENSES INCURRED ON CONSTRUCTI ON OF PROPERTY IN QUESTION. I FURTHER FIND THAT PROPERTY IN QUESTION RELATED TO THREE PERSONS AND AFTER PERUSING THE SA LE DEED DATED 02.7.2010 AT PAGE NO. 24 OF THE PB MADE AT MUMBAI B Y (I) MRS. USHA RANI JAIN, W/O SH. RATTAN BHUSHAN JAIN (II) MR S. MONIKA JAIN W/O PRASHANT JAIN (3) MR. SAURABH JAIN S/O MR. RATTAN BHUSHAN JAIN, ALL RESIDENT AT 24-25, NEELAM BATA RO AD, FARIDABAD, NIT HARYANA-120001 AND THE REVENUE AUTHO RITY HAS GIVEN THE SIMILAR RELIEF OF COST OF CONSTRUCTION TO SAURABH JAIN, BUT DENIED THE SAME TO THE ASSESSEE, WHICH IS UNFA IR AND UNTENABLE WHICH ESTABLISH FROM PAGE NO. 56 TO 58 OF THE PB WHICH IS THE COPY OF THE ASSESSMENT ORDER OF SH. SA URABH JAIN U/S. 143(3) OF THE I.T. ACT, 1961 FILED BY THE ASSE SSEE. IT IS ALSO NOTED THAT ALL THE EVIDENCES HAVE BEEN FILED BEFORE THE AO AND THE LD. CIT(A), BUT HAVE NOT BEEN APPRECIATED BY BOTH THE AUTHORITIES. THEREFORE, IN THE INTEREST OF JUSTIC E, WE SET ASIDE THE GROUND NO. 4 AND SENT BACK TO THE LD. CIT(A) WITH THE DIRECTION TO DECIDE THE SAME AFRESH, KEEPING IN VIEW OF THE A SSESSMENT ORDER OF SH. SAURAB JAIN PASSED U/S. 143(3) OF THE ACT (SUPRA) AND PASS A SPEAKING ORDER, AFTER APPRECIATING ALL THE DOCUMENTS, EVIDENCES, ETC. FILED BY THE ASSESSEE AND ASSESSEE IS DIRECTED TO 7 FULLY COOPERATE WITH THE LD. CIT(A) AND DID NOT TAK E ANY UNNECESSARY ADJOURNMENT. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STAND ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 14/05/2018. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE 14/05/2018 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT - 2. RESPONDENT - 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES 8