ACIT, Dehradun V. Shri Ashok Gupta, Dehradun

ITA 5105/DEL/2012

• Counselvise Citation: 510520114 RSA 2012
• Duration Of Justice: 1 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 25-03-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 01-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAGAN SOOD
• Assessee Lawyers: S K MATTA
• Keywords: Capital asset; Wrong claim
• Section: 143(3); 54F; 148; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH A AA A : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI R.P. TOLANI R.P. TOLANI R.P. TOLANI R.P. TOLANI, ,, , JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ITA NO ITA NO ITA NO ITA NO. .. .5105/DEL/2012 5105/DEL/2012 5105/DEL/2012 5105/DEL/2012 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 2008 2008 2008 2008- -- -09 0909 09 ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF ASSISTANT COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -1, 1,1, 1, DEHRADUN. DEHRADUN. DEHRADUN. DEHRADUN. VS. VS. VS. VS. SHRI ASHOK GUPTA, SHRI ASHOK GUPTA, SHRI ASHOK GUPTA, SHRI ASHOK GUPTA, 19 1919 19- -- -A, PANDITWARI, RAJ VIHAR, A, PANDITWARI, RAJ VIHAR, A, PANDITWARI, RAJ VIHAR, A, PANDITWARI, RAJ VIHAR, DEHRADUN. DEHRADUN. DEHRADUN. DEHRADUN. PAN : PAN : PAN : PAN : ABIPG9325P. ABIPG9325P. ABIPG9325P. ABIPG9325P. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI GAGAN SOOD, SR.DR. RESPONDENT BY : SHRI S.K. MATTA, CA. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE O RDER OF LEARNED CIT(A)-I, DEHRADUN DATED 12 TH JULY, 2012 FOR AY 2008-09. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APP EAL:- 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN HO LDING THAT THE AO WAS NOT CORRECT IN CHANGING THE INCOME T O TAX IN A.Y. 2008-09 WHEN THE SAME HAD BEEN OFFERED BY TH E ASSESSEE SUO-MOTO TO TAX FOR THE A.Y. 2010-11. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.33,92,227/- IGNORING THE SPECIFIC PROVISIONS OF SECTION 54F OF THE IT ACT, 1961 AS THE A MOUNT OF CAPITAL GAIN WAS NOT DEPOSITED IN CAPITAL GAIN AC COUNT SCHEME INSTEAD THE AMOUNT WAS ALLEGEDLY ADVANCED BY T HE ASSESSEE TO HIS FATHER WHICH IS CERTAINLY NOT IN ACCORDAN CE WITH THE PROVISION OF SECTION 54 OF I.T. ACT, 1961. 3. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS IN IGN ORING THE PROVISIONS OF SECTION 4 OF THE I.T. ACT, 1961. ITA-5105/DEL/2012 2 4. THE ORDER OF THE LD.CIT(A) BE SET-ASIDE AND THAT O F THE AO BE RESTORED. 3. THE FACTS OF THE CASE ARE THAT DURING THE ACCOUNTI NG YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION, TH E ASSESSEE DERIVED INCOME OF ` 33,92,227/- UNDER THE HEAD LONG TERM CAPITAL GAIN. OUT OF SUCH INCOME, THE ASSESSEE CLAIMED EXEMPTION UNDE R SECTION 54F AMOUNTING TO ` 32,50,000/-. THE SAME WAS ACCEPTED BY THE ASSESSING OFFICER UNDER SECTION 143(1). IN THE RETURN OF INCOME FOR AY 2010-11, THE ASSESSEE DECLARED THE INCOME OF ` 32,50,000/- UNDER THE HEAD LONG TERM CAPITAL GAIN ON THE GROUND THAT THE ASSESSEE COULD NOT FULFILL THE CONDITION OF SECTION 54F. IN VIEW OF T HE DISCLOSURE OF THE INCOME BY THE ASSESSEE FOR AY 2010-11, THE ASSESSING OFFICE R REOPENED THE ASSESSMENT FOR AY 2008-09 ON THE GROUND TH AT THE INCOME ACTUALLY BELONGS TO AY 2008-09 AND NOT 2010-1 1. HE, THEREFORE, ISSUED NOTICE UNDER SECTION 148 AND THEREA FTER, AFTER REJECTING THE ASSESSEES EXPLANATION, COMPLETED THE ASSESS MENT UNDER SECTION 143(3) READ WITH SECTION 148 IN WHICH HE ASSE SSED THE CAPITAL GAIN AT ` 33,92,227/- DENYING THE ASSESSEE EXEMPTION UNDER SECTIO N 54F AMOUNTING TO ` 32,50,000/-. ON APPEAL, LEARNED CIT(A) ACCEPTED THE ASSESSEES CLAIM. HE ALSO OBSERVED THAT THE INCOME HA S BEEN OFFERED BY THE ASSESSEE IN AY 2010-11 SUO MOTU AND HAS ALSO BEEN ASSESSED AS SUCH IN THAT YEAR. THE REVENUE, AGGRIEVED WI TH THE ORDER OF LEARNED CIT(A), IS IN APPEAL BEFORE US. 4. AT THE TIME OF HEARING BEFORE US, IT WAS EXPLAINE D BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT DURING THE ACCOUNTING YEA R RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION I.E. AY 2008-09, THE ASSESSEE DERIVED INCOME UNDER THE HEAD LONG TERM CAPITAL GAI NS AND HAD ISSUED THE CHEQUE OF ` 32,50,000/- FOR PURCHASE OF RESIDENTIAL HOUSE AND, THEREFORE, EXEMPTION UNDER SECTION 54F WAS CLAIMED. HOWEVER, WITHIN ITA-5105/DEL/2012 3 TWO YEARS, THE SAID RESIDENTIAL HOUSE COULD NOT BE TRAN SFERRED IN THE NAME OF THE ASSESSEE AND, THEREFORE, THE ASSESSEE RIGHTLY OFFERED THE INCOME IN AY 2010-11. HE ALSO SUBMITTED THAT THOUGH THE ASSESSING OFFICER HAD REOPENED THE ASSESSMENT OF AY 2008-09 AFTER THE FILING OF THE RETURN FOR AY 2010-11, HOWEVER, THE RETURN OF T HE ASSESSEE FOR AY 2010-11, WHEREIN THE CAPITAL GAIN HAS BEEN SHOWN, HA S BECOME FINAL. NO NOTICE UNDER SECTION 143(2) IS ISSUED. THUS, THE SUR RENDER OF THE EXEMPTION CLAIMED UNDER SECTION 54F IN AY 2008-09 I N THE RETURN OF INCOME FOR AY 2010-11 HAS BEEN ACCEPTED BY THE REVEN UE AND HAS BECOME FINAL. THEREFORE, IF THE ADDITION UNDER THE HEAD CAPITAL GAINS IS MADE IN THE YEAR UNDER APPEAL DENYING THE EXEMPTI ON UNDER SECTION 54F, IT WOULD AMOUNT TO DOUBLE ADDITION. 5. LEARNED DR, ON THE OTHER HAND, RELIED UPON THE O RDER OF THE ASSESSING OFFICER AND HE STATED THAT WHEN THE ASSESSEE HAS N OT FULFILLED THE CONDITION UNDER SECTION 54F, THE EXEM PTION CLAIMED IN THE SAID SECTION WAS A WRONG CLAIM AND, THEREFORE, RIGHTL Y MODIFIED IN THE ORDER PASSED UNDER SECTION 143(3)/148. THE SAME SHOULD BE SUSTAINED. 6. AFTER CONSIDERING THE ARGUMENTS OF BOTH THE SIDES AN D THE FACTS OF THE CASE, WE DO NOT FIND ANY JUSTIFICATION TO INTE RFERE WITH THE ORDER OF LEARNED CIT(A). SECTION 54F PERMITS THE ASSESSEE TO PURCHASE THE RESIDENTIAL HOUSE WITHIN A PERIOD OF TWO YEARS AFTER T HE DATE ON WHICH THE TRANSFER OF THE CAPITAL ASSET TOOK PLACE. DURING THE AY 2008-09 ITSELF, ASSESSEE INITIATED STEPS FOR PURCHASE OF RESIDENTIAL HOUSE AND ALSO ISSUED ADVANCE THERE FOR. HOWEVER, WHEN THE TRAN SACTION OF PURCHASE COULD NOT FRUCTIFY AND ASSESSEE FAILED TO COMP LY WITH THE PROVISIONS OF SECTION 54F, HE SUO MOTU OFFERED THE INCOME IN AY 2010- 11 WHICH IS ACCEPTED BY THE REVENUE, OF COURSE, UNDE R SECTION 143(1). IN THE ABOVE CIRCUMSTANCES, IN OUR OPINION, THERE WOU LD BE NO ITA-5105/DEL/2012 4 JUSTIFICATION FOR AGAIN TAXING THE SUM OF ` 32,50,000/- AS LONG TERM CAPITAL GAIN IN AY 2008-09 BY DENYING EXEMPTION UND ER SECTION 54F ALLOWED ORIGINALLY. ACCORDINGLY, WE UPHOLD THE ORD ER OF LEARNED CIT(A) AND DISMISS THE APPEAL OF THE REVENUE. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED . DECISION PRONOUNCED IN THE OPEN COURT ON 28 TH MARCH, 2014. SD/- SD/- ( (( (R.P. TOLANI R.P. TOLANI R.P. TOLANI R.P. TOLANI) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 28.03.2014 VK. COPY FORWARDED TO: - 1. APPELLANT : ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -1, DEHRADUN. 1, DEHRADUN. 1, DEHRADUN. 1, DEHRADUN. 2. RESPONDENT : SHRI ASHOK GUPTA, SHRI ASHOK GUPTA, SHRI ASHOK GUPTA, SHRI ASHOK GUPTA, 19 1919 19- -- -A, PANDITWARI, RAJ VIHAR, DEHRADUN. A, PANDITWARI, RAJ VIHAR, DEHRADUN. A, PANDITWARI, RAJ VIHAR, DEHRADUN. A, PANDITWARI, RAJ VIHAR, DEHRADUN. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR