Dr. Daljeet Singh Gambhir, Noida V. ACIT, New Delhi

ITA 4967/DEL/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3901 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2011-2012
• Appeal Filed On: 03-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT JAIN SENIOR
• Assessee Lawyers: P K CHADHA
• Keywords: Additional evidence
• Section: 54F; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D : NEW DELHI) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.4967/DEL./2015 (ASSESSMENT YEAR : 2011-12) DR. DALJEET SINGH GAMBHIR, VS. ACIT, CIRCLE 61 (1) , HOUSE NO.A-6, SECTOR 14, NEW DELHI. NOIDA 201 301 (U.P.). (PAN : AAAPG1521E) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI P.K. CHADHA, CA REVENUE BY : SHRI AMIT JAIN, SENIOR DR DATE OF HEARING : 04.12.2017 DATE OF ORDER : 19.01.2018 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : THE APPELLANT, DR. DALJEET SINGH GAMBHIR (HEREINAF TER REFERRED TO AS THE ASSESSEE) BY FILING THE PRESEN T APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 28.05.2015 PASSE D BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-20, NEW DELHI QUA THE ASSESSMENT YEAR 2011-12 ON THE GROUNDS INTER ALIA T HAT :- I) THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS ERRED IN SUSTAINING THE DISALLOWANCE OF RS.10,6 4,257.00 U/S 54F OF THE INCOME TAX ACT IN RESPECT OF CAPITAL GAI N ON SALE OF SHARES. ITA NO.4967/DEL/2015 2 II) THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) SUSTAINING THE DISALLOWANCE OF DEDUCT ION OF RS.10,64,257.00 U/S 54F OF THE INCOME TAX ACT IS BA SED ON MERE SURMISES & ASSUMPTIONS AND WITHOUT PROPER APPRECIAT ION OF THE FACTS OF THE CASE AND THE APPELLANT'S SUBMISSION IN THIS REGARD. III) THAT IT IS HUMBLY PRAYED TO ALLOW THE CLAIM F OR DEDUCTION U/S 54F AS CLAIMED BY THE APPELLANT. IV) THAT THE LEARNED COMMISSIONER OF INCOME TAX HA S ERRED IN SUSTAINING THE ADDITION OF RS.50,400.00 AS THE N ET ANNUAL LETTING VALUE IN RESPECT OF PROPERTY AT A-6 SECTOR- 14, NOIDA. V) THAT THE ORDER OF THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS) SUSTAINING THE ADDITION OF RS. 50400. 00 ON ACCOUNT OF ANNUAL LETTING VALUE OF PROPERTY AT A-6, SECTOR - 14, NOIDA IS BASED ON MERE SURMISES & ASSUMPTIONS AND WITHOUT PR OPER APPRECIATION OF THE FACTS OF THE CASE AND THE APPEL LANT'S SUBMISSION IN THIS REGARD. VI) THAT IT IS HUMBLY PRAYED TO KINDLY DELETE THE ADDITION OF RS.50,400.00 ON ACCOUNT OF ADDITION OF ANNUAL LETTI NG VALUE OF A- 6, SECTOR - 14, NOIDA. VII) THAT THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) SUSTAINING THE DISALLOWANCE OF DEDUCT ION U/S 54F OF INCOME TAX ACT AND THE ADDITION OF ANNUAL LETTIN G VALUE IS BAD IN LAW AND FACTS OF THE CASE. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICATION OF THE CONTROVERSY AT HAND ARE : ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS SOLD 7,00,000 SHARES OF SHAJANAND MEDI CAL TECHNOLOGY PRIVATE LIMITED AND EARNED A LONG TERM C APITAL GAIN OF RS.20,32,181/- AND CLAIMED THE CAPITAL GAIN AS EXEM PT UNDER SECTION 54F OF THE INCOME-TAX ACT, 1961 (FOR SHORT THE ACT) ON THE GROUND THAT THE SAME HAS BEEN INVESTED IN CONST RUCTION OF RESIDENTIAL HOUSE. THE ASSESSEE HAS LATER ON REVIS ED INVESTMENT TO RS.10,64,257/-. AO CALLED UPON THE ASSESSEE TO EXP LAIN AS TO WHY ITA NO.4967/DEL/2015 3 THE PROPERTY BE NOT TREATED AS A RESIDENTIAL PROPER TY WHEN IT IS SO MENTIONED IN THE DEED. ASSESSEE CLAIMED THAT THE S TRUCTURE ON PLOT NO.A-6, SECTOR 14, NOIDA WAS NOT FIT FOR RESIDENCE AND AS SUCH CANNOT BE TREATED AS RESIDENTIAL PROPERTY WHICH WAS LATER DEMOLISHED AND NEW HOUSE WAS CONSTRUCTED. AO ALSO HELD THAT SINCE THE ASSESSEE HAS MORE THAN ONE RESIDENTIAL HO USE ON THE DATE OF TRANSFER OF THE ORIGINAL ASSET, DISALLOWED THE E XEMPTION U/S 54F OF THE ACT. AO ALSO MADE ADDITION ON ACCOUNT OF DE EMED LET OUT OF HOUSE PROPERTY TO THE TUNE OF RS.50,400/- BY DETERM INING THE MEAN OF THE RENTAL VALUE ON THE BASIS OF FIELD ENQUIRIES AND AS PER INTERNET SOURCES. 3. ASSESSEE CARRIED THE MATTER BY WAY OF FILING APP EAL BEFORE THE LD. CIT (A) WHO HAS DISMISSED THE APPEAL. FEELI NG AGGRIEVED, THE ASSESSEE HAS COME UP BEFORE THE TRIBUNAL BY CHA LLENGING THE IMPUGNED ORDER PASSED BY LD. CIT (A) . 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVES OF THE PARTIES 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. 5. DURING THE APPELLATE PROCEEDINGS, THE ASSESSEE H AS MOVED APPLICATION FOR LEADING ADDITIONAL EVIDENCE BY PROV ING ON RECORD ITA NO.4967/DEL/2015 4 (I) THE DETAILED APPROVED PLAN BY NOIDA AUTHORITY F OR NEW RESIDENTIAL BUILDING CONSTRUCTED ON A-6, SECTOR 14, NOIDA (DATED 25.11.2009), (II) DETAILED APPROVAL PLAN OF COMPLETED BUILDING DATED 08.02.2016, AND (III) COMPLETION/OCCUPANCY CERTIFICATE DATED 08.02 .2016 ISSUED BY THE NOIDA AUTHORITY FOR NEW RESIDENTIAL HOUSE COMPLETED. SINCE THE AFORESAID DOCUMENTS SOUGHT TO BE PROVED A DDITIONAL EVIDENCES ARE NECESSARY TO DECIDE THE ISSUE AS TO T HE CONSTRUCTION OF NEW HOUSE ON THE PROPERTY IN QUESTION AFTER DEMOLIS HING THE OLD STRUCTURE THE SAME IS ALLOWED BEING NECESSARY TO AD JUDICATE UPON THE ISSUE IN CONTROVERSY WITHOUT GOING INTO ITS MER ITS. 6. UNDISPUTEDLY, IN THE SALE DEED OF THE PROPERTY I N QUESTION THE PROPERTY IS DESCRIBED AS HOUSE PROPERTY, RELEVANT P AGE OF WHICH HAVE BEEN ANNEXED AS PAGES 8 TO 12 OF THE ASSESSMEN T ORDER. IT IS ALSO NOT IN DISPUTE THAT THE AO MADE AN ADDITION ON THE BASIS OF RECITAL IN THE SALE DEED OF THE PROPERTY IN QUESTIO N. 7. THE SOLE QUESTION RAISED BY THE LD. AR FOR THE A SSESSEE IS THAT THE ASSESSEE IN ORDER TO CONSTRUCT THE BASEMENT HAD TO DEMOLISH THE GROUND FLOOR. IN ORDER TO PROVE THIS FACT, THE ASS ESSEE BROUGHT ON RECORD SANCTIONED LETTER NO.NOIDA/BC/BPR-49/1104 DA TED ITA NO.4967/DEL/2015 5 25.11.2009 ISSUED BY THE NOIDA AUTHORITY PERMITTING HIM TO COMPLETE THE CONSTRUCTION OF BASEMENT FIRST AND THE N TO RAISE GROUND FLOOR AS PER SANCTIONED SITE PLAN, COPY OF W HICH IS ALSO PLACED ON RECORD WITHIN A PERIOD OF THREE YEARS. A SSESSEE ALSO PLACED ON RECORD LETTER NO.NOIDA/BP/2016/R-49/1304 DATED 08.02.2016 ISSUED BY THE NOIDA AUTHORITY CERTIFYING THE COMPLETION OF THE BUILDING. ASSESSEE ALSO BROUGHT ON RECORD C ERTIFICATE DATED 30.11.2017 ISSUED BY MS. ANITA GUPTA, SR. ARCHITECT , SGAG CONSULTANTS PVT. LTD. CERTIFYING THAT AS PER COMPLE TION CERTIFICATE DATED 08.02.2016 (SUPRA) THE BUILDING WAS IN DILAPI DATED CONDITION AND NEW BUILDING INCLUDING BASEMENT CAN BE CONSTRUC TED AFTER DEMOLISHING THE OLD BUILDING. SHE HAS ALSO BROUGHT ON RECORD SITE PLAN OF THE OLD BUILDING WHICH WAS DEMOLISHED AND T HE BASEMENT WHICH HAS BEEN CONSTRUCTED THEREAFTER. 8. FROM THE SANCTIONED LETTER DATED 25.11.209, COMP LETION LETTER DATED 08.02.2016 AND SITE PLAN OF OLD BUILDING AND SITE PLAN OF NEW BUILDING INCLUDING BASEMENT, IT IS PROVED THAT THOU GH IN THE SALE DEED OF THE PROPERTY IN QUESTION, IT IS MENTIONED T HAT IT WAS A HOUSE PROPERTY BUT THE OLD BUILDING WAS DEMOLISHED AND NE W CONSTRUCTION WAS RAISED AS PER APPROVED SITE PLAN QUA WHICH COMP LETION CERTIFICATE HAS ALSO BEEN ISSUED BY THE NOIDA AUTHO RITY. SO, IN THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED VIEW THAT D ISALLOWANCE U/S ITA NO.4967/DEL/2015 6 54F IS NOT TO BE DECIDED MERELY ON THE BASIS OF REC ITAL IN THE SALE DEED BUT ON THE BASIS OF ATTENDING FACTS NARRATED A BOVE THAT AFTER DEMOLISHING THE OLD BUILDING, NEW BUILDING PLAN WAS SANCTIONED AND THEN CONSTRUCTION INCLUDING BASEMENT WAS RAISED . FURTHERMORE, WHEN OLD STRUCTURE WAS DEMOLISHED, THE RE IS NO QUESTION OF MAKING ADDITION ON ACCOUNT OF DEEMED LE T OUT OF THE HOUSE PROPERTY ON THE BASIS OF NET ANNUAL VALUE U/S 23 (1) OF THE ACT. SO, THE ADDITION OF RS.50,400/- IS ALSO NOT S USTAINABLE. 9. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, WE ARE OF THE CONSIDERED VIEW THAT THE AO IS TO ALLOW THE EXEMPTI ON U/S 54 OF THE ACT AFTER VERIFYING THE DOCUMENTS RELIED UPON BY TH E ASSESSEE BEFORE THE TRIBUNAL BY WAY OF ADDITIONAL EVIDENCE, IN THE LIGHT OF THE OBSERVATIONS MADE HEREIN ABOVE. CONSEQUENTLY, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSE S. ORDER PRONOUNCED IN OPEN COURT ON THIS 19 TH DAY OF JANUARY, 2018. SD/- SD/- (R.K. PANDA) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 19 TH DAY OF JANUARY, 2018 TS ITA NO.4967/DEL/2015 7 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-20, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.