Shri Santokh Singh, New Delhi V. ITO, New Delhi

ITA 5157/DEL/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7113 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Assessment Year: 2013-2014
• Appeal Filed On: 30-09-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K TEWARI
• Assessee Lawyers: ASHWANI TANEJA
• Section: 54F; 139(5); 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE PRESIDENT AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 5157/DEL/2016 ASSESSMENT YEAR: 2013-14 SANTOKH SINGH, C/O M/S RRA TAXINDIA, D-28, SOUTH EXTENSION PART I, NEW DELHI-110049 (PAN: APNPS9211F) VS INCOME TAX OFFICER, WARD 35(5), NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ASHWANI TANEJA, ADV. RESPONDEN T BY : SHRI K. TEWARI, SR. DR DATE OF HEARING: 16.07.2018 DATE OF PRONOUNCEMENT : 18.07.2018 ORDER PER SUDHANSHU SRIVASTAVA, J.M. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-12, NEW DELHI FOR ASSESSMENT YEAR 2013-14 WHEREIN, VIDE THE IMPUGNED ORDER, THE LD. CIT(A) HA S UPHELD THE DENIAL OF ASSESSEES CLAIM OF DEDUCTION U/S 54F OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') AM OUNTING TO RS. 92,37,000/-. 2. BRIEF FACTS OF THE CASE ARE THAT THE RETURN WAS FILED DECLARING TAXABLE INCOME OF RS. 1,37,080/- ON 26.03.2014. TH E CASE WAS ITA NO. 5157/DEL/2016 ASSESSMENT YEAR 2013-14 2 SELECTED FOR SCRUTINY THROUGH CASS. IT WAS NOTICED THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD SOLD A PLOT FOR A TOTAL CONSIDERATION OF RS. 1,30,00,000/- AND HAD C LAIMED EXEMPTION OF LONG TERM CAPITAL GAIN U/S 54 OF THE A CT TO THE TUNE OF RS. 92,37,000/-. THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO SHOW CAUSE AS TO HOW THE EXEMPTION U/S 54 OF THE ACT WAS ALLOWABLE AS THE PROPERTY SOLD WAS NOT A PROPERTY U SED FOR RESIDENCE BUT WAS ONLY A PLOT. IN RESPONSE, THE AS SESSEE SUBMITTED THAT THE ASSESSEES CLAIM SHOULD BE CONSI DERED U/S 54F OF THE ACT WHICH HAD INADVERTENTLY BEEN MENTION ED AS BEING CLAIMED UNDER SECTION 54 IN THE COMPUTATION OF INCO ME AND THE RETURN OF INCOME. HOWEVER, THE ASSESSING OFFICER N OTED THAT THE ORIGINAL RETURN WAS FILED ON 26.03.2014 AND WAS, TH EREFORE, BEYOND THE PRESCRIBED DATE FOR FILING OF THE RETURN AS PER SECTION 139(1) OF THE ACT AND, THEREFORE, REVISING THE CLAI M OF DEDUCTION FROM SECTION 54 TO 54F COULD NOT BE CONSIDERED. TH E ASSESSING OFFICER ALSO NOTED THAT THE REVISED CLAIM OF THE AS SESSEE ALONG WITH THE REPLY DATED 17.02.2016 WAS ALSO BEYOND THE PRESCRIBED PERIOD U/S 139(5) OF THE ACT AND, THEREFORE, THE CL AIM WAS NOT ALLOWABLE. THE ASSESSEES PLEA FOR INADVERTENT MIS TAKE WAS ALSO REJECTED. ITA NO. 5157/DEL/2016 ASSESSMENT YEAR 2013-14 3 2.1 AGGRIEVED, THE ASSESSEE APPROACHED THE LD. FIRS T APPELLATE AUTHORITY WHO, ALTHOUGH, NOTED THAT THE ASSESSEES CLAIM FOR DEDUCTION U/S 54F NEEDED TO BE EXAMINED BUT ALL THE SAME REJECTED THE ASSESSEES CLAIM AND DISMISSED THE ASS ESSEES APPEAL. NOW, THE ASSESSEE IS BEFORE THE ITAT AND I S CHALLENGING THE DISMISSAL OF HIS APPEAL. 3. THE LD. AR SUBMITTED THAT ONLY GROUND FOR DENIAL OF DEDUCTION WAS THAT THE ASSESSING OFFICER DID NOT AC CEPT THAT IT WAS A CASE OF INADVERTENT MISTAKE WHILE CLAIMING TH E DEDUCTION. ON A QUERY FROM THE BENCH, THE LD. AR HAD NO OBJECT ION TO THE ISSUE BEING RESTORED TO THE FILE OF THE ASSESSING O FFICER FOR RE- EXAMINATION OF THE ASSESSEES CLAIM U/S 54F OF THE ACT. 4. THE LD. SR. DR VEHEMENTLY SUPPORTED THE ORDERS O F BOTH THE LOWER AUTHORITIES. HOWEVER, ON A QUERY FROM THE BE NCH, THE LD. SR. DR ALSO STATED THAT THE MATTER COULD BE RESTORE D TO THE FILE OF THE ASSESSING OFFICER FOR RE-EXAMINATION. 5. ACCORDINGLY, IN VIEW OF THE FACTS OF THE CASE AN D ALSO CONSIDERING THE FACT THAT THE ONLY MISTAKE ON THE P ART OF THE ASSESSEE WAS TO INCORRECTLY MENTION THE SECTION UND ER WHICH THE DEDUCTION WAS BEING CLAIMED AND ALSO KEEPING IN MIN D THE FACT THAT THE ASSESSING OFFICER HAS REJECTED THE ASSESSE ES CLAIM AT THE ITA NO. 5157/DEL/2016 ASSESSMENT YEAR 2013-14 4 THRESHOLD ITSELF ON THE GROUND THAT THE ASSESSEE HA D CLAIMED THE DEDUCTION UNDER THE INCORRECT SECTION OF THE ACT AN D HAS NOT EXAMINED THE MERITS OF THE CLAIM OF DEDUCTION, WE A RE OF THE CONSIDERED OPINION THAT IT IS A FIT AND PROPER CASE FOR BEING RESTORED TO THE FILE OF THE ASSESSING OFFICER. ACC ORDINGLY, WE RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFI CER FOR RE- EXAMINING THE CLAIM OF THE ASSESSEE U/S 54F OF THE ACT AFTER AFFORDING DUE OPPORTUNITY OF HEARING TO THE ASSESSE E AND ALSO DIRECT THE ASSESSING OFFICER TO DECIDE THE ISSUE AS PER PROVISIONS OF LAW, NOTWITHSTANDING THE FACT THAT THE ASSESSEE HAD INCORRECTLY MENTIONED THE SECTION UNDER WHICH THE ASSESSEE WAS ELIGIBLE FOR CLAIM OF DEDUCTION. 6. IN THE RESULT, THE ASSESSEES APPEAL STANDS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH JULY, 2018. SD/- SD/- (G.D. AGRAWAL) (SUDHANSHU SRIVASTAVA) PRESIDENT JUDICIAL MEMBER DATED: 18 TH JULY, 2018 GS ITA NO. 5157/DEL/2016 ASSESSMENT YEAR 2013-14 5 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 4. DR, ITAT BY ORDER ASSTT. REGISTRAR DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER 1