Shri Ashok Kukreja, Bhopal V. The ACIT 3(1), Bhopal

ITA 519/Ind/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5993 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 29-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S S DESHPANDE
• Keywords: Set aside
• Section: 143(3); 54F; 142(1); 143(2); 208; 43

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HONBLE RAJPAL YADAV, VICE PRESIDENT AND SHRI MANISH BORAD, ACCOUNTANT MEMBER VIRTUAL HEARING ITA NO.519/IND/2019 ASSESSMENT YEAR: 2010-11 SHRI ASHOK KUKREJA 12, BRIGHT COLONY, IDGAH HILLS BHOPAL PAN:ABMPK1604K : APPELLANT V/S ITO-3(1) BHOPAL : RESPONDENT APPELLANT BY SHRI S.S. DESHPANDE AR REVENUE BY SHRI HARSHIT BARI, SR. DR DATE OF HEARING 02.08.2021 DATE OF PRONOUNCEMENT 07.09.2021 O R D E R PER MANISH BORAD, A.M THE ABOVE CAPTIONED APPEAL FILED AT THE INSTANCE O F THE ASSESSEE FOR ASSESSMENT YEAR 2010-11 IS DIRECTED AG AINST THE SHRI ASHOK KUKREJA ITA NO.519/IND/2019 2 ORDER OF LD. COMMISSIONER OF INCOME TAX(APPEALS) (I N SHORT LD. CIT],-2 BHOPAL DATED 26.02.2019 WHICH IS ARISING O UT OF THE ORDER U/S 143(3) OF THE INCOME TAX ACT 1961(IN SHO RT THE ACT) DATED 07.02.2013 FRAMED BY ITO-3(2), BHOPAL. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL IN ITANO.519/IND/2019: THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE OF THE ASSESSEE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING ADDITION OF RS.18,98,561.00 TOWARDS RELIEF CLAIMED UNDER SECTIO N 54F OF THE ACT. 2. BRIEF FACTS AS CULLED OUT FROM THE RECORDS ARE T HAT THE ASSESSEE IS AN INDIVIDUAL RUNNING BUSINESS OF GRINDING OF SP ICES, WHOLE SALE TRADING OF SPICES, KIRANA ITEMS UNDER THE WHOL E PROPRIETORSHIP CONCERN OF M/S. KUKREJA BROTHERS. E- RETURN OF INCOME FOR A.Y. 2010-11 FILED ON 20.10.2010 DECLARI NG INCOME OF RS.3,38,160/-. CASE SELECTED FOR SCRUTINY THROUGH C ASS FOLLOWED BY SERVING OF NOTICES U/S 143(2) & 142(1) OF THE AC T. DURING THE COURSE OF ASSESSMENT PROCEEDINGS LD. AO OBSERVED TH AT THE ASSESSEE HAD CLAIMED EXEMPTION U/S 54F OF THE ACT F OR PURCHASING PROPERTY AT FIRST FLOOR OF 208 SITUATED AT MAJOR SHOPPING CENTRAL SCHEME NO.13, M.P. NAGAR ZONE-II B HOPAL. SHRI ASHOK KUKREJA ITA NO.519/IND/2019 3 ASSESSEE CLAIMED IT TO BE RESIDENTIAL PROPERTY BUT LD. AO CONSIDERED IT TO BE OF COMMERCIAL NATURE WHICH CANN OT BE USED FOR RESIDENTIAL PURPOSES. THE EXEMPTION U/S 54F WAS DENIED AND SUM OF RS.18,98,561/- ADDED TO THE INCOME ALONG WIT H OTHER MINOR ADDITIONS. INCOME ASSESSED AT RS.28,73,871/-. 3. AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE TH E LD. CIT(A) AND PARTLY SUCCEEDED. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE TRIBUNAL CH ALLENGING THE FINDING OF LD. CIT(A) CONFIRMING THE ADDITION OF RS .18,98,561/- CLAIMED BY THE ASSESSEE U/S 54F OF THE ACT. 5. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBM ISSIONS MADE BEFORE THE LD. CIT(A) PLACED AT PAGES 1 TO 6 OF THE PAPER BOOK ARE ALSO REFERRED OTHER DOCUMENTS PLACED AT PAGES 7 TO 43 OF THE PAPER BOOK DATED 14.02.2020, CLAIMING THAT THE ALLE GED PROPERTY SITUATED AT FIRST FLOOR IS RESIDENTIAL PROPERTY AND CLAIM OF 54F OF THE ACT SHOULD HAVE BEEN ALLOWED. 6. PER CONTRA LD. DR VEHEMENTLY ARGUED SUPPORTING T HE ORDERS OF BOTH THE LOWER AUTHORITIES. SHRI ASHOK KUKREJA ITA NO.519/IND/2019 4 7. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. SOLE GRIEVANCE OF THE ASSESSEE IS AGAINST THE FINDING OF LD. CIT(A) CONFIRMING THE ADDITION OF RS .18,98,561/- CLAIMED BY THE ASSESSEE FOR DEDUCTION U/S 54F OF TH E ACT WHICH WAS DENIED BY THE LD. AO. WE NOTICE THAT THE PROPER TY IN QUESTION IS SITUATED AT FIRST FLOOR OF BUILDING NO. 208 SITUATED AT MAJOR SHOPPING CENTRAL SCHEME NO.13, M.P. NAGAR ZON E-II BHOPAL. 8. AS PER THE PERMISSION GRANTED BY THE MUNICIPAL C ORPORATION, BHOPAL, THE GROUND FLOOR IS TO BE UTILIZED FOR COMM ERCIAL ACTIVITIES AND THUS SHOPS ARE CONSTRUCTED ON GROUND FLOOR AND FIRST FLOOR TO BE UTILIZED FOR RESIDENTIAL PURPOSE. WE ALSO FIND T HAT THE ASSESSEE HAS PURCHASED A PROPERTY AS A RESIDENTIAL PROPERTY AND REGISTERING AUTHORITY HAVE ALSO REGISTERED THE SAID PURCHASE AFTER CHARGING EXPENSES VALUING THE SAID PROPERTY FOR STA MP DUTY VALUE AS A RESIDENTIAL PROPERTY. COPY OF REGISTRATION PAP ERS AND GUIDELINES FOR STAMP DUTY VALUATION ARE PLACED ON R ECORD. IT IS NOTEWORTHY THAT ELECTRICITY DEPARTMENT HAD ALSO CON SIDERED THE USE OF THE SAID PREMISES AS A RESIDENTIAL USE AND H AS CHARGED THE ELECTRICITY RATES ACCORDINGLY. PERUSAL OF RECORD AL SO SHOWS THAT THE SHRI ASHOK KUKREJA ITA NO.519/IND/2019 5 ASSESSEE HAS SUBMITTED THE COPY OF THE MUNICIPAL RE CEIPT AND RETURN DURING THE COURSE OF ASSESSMENT PROCEEDINGS ITSELF. MUNICIPAL AUTHORITIES HAVE CHARGED THE PROPERTY TAX TREATING IT AS A RESIDENTIAL PROPERTY. FURTHER FROM PERUSAL OF THE PURCHASE DEED PLACED AT PAGES 11 TO 19 WE FIND THAT THE COMPLETE DETAILS OF THE PROPERTY PURCHASED BY THE ASSESSEE IS MENTIONED WHI CH IS MEASURING 864 SQ.FT. AND CONSISTS OF RESIDENTIAL RO OMS ALL LOCATED AT FIRST FLOOR. COPIES OF ELECTRICITY BILLS RELATIN G TO THE PROPERTY IN QUESTION ARE ALSO PLACED IN THE PAPER BOOK WHICH AL SO SUPPORTS THE CONTENTION THAT THE PROPERTY IS USED FOR RESIDE NTIAL PURPOSE. 9. WE, THEREFORE, IN THE GIVEN FACTS AND CIRCUMSTAN CES OF THE CASE AND VARIOUS DOCUMENTARY EVIDENCES FILED BEFORE US, ARE SATISFIED WITH THE CONTENTION MADE BY THE LD. COUNSEL FOR THE ASSESSEE AND LD. DR BEING UNABLE TO PLACE ANY CONTRARY MATERIAL TO PROVE OTHERWISE, ARE OF THE CONSIDERED VIEW THAT THE ASSE SSEE HAS RIGHTLY CLAIMED EXEMPTION U/S 54F OF THE ACT FOR RS .18,98,561/- FOR PURCHASE OF RESIDENTIAL HOUSE PROPERTY LOCATED AT FIRST FLOOR OF A COMPLEX HAVING SHOPS CONSTRUCTED ON GROUND FLOOR. WE, ACCORDINGLY SET ASIDE THE FINDING OF LD. CIT(A) AND ALLOW THE SOLE GROUND RAISED BY THE ASSESSEE. SHRI ASHOK KUKREJA ITA NO.519/IND/2019 6 10. IN THE RESULT, ASSESSEES APPEAL IN ITANO.519/IND/2019 IS ALLOWED. THE ORDER PRONOUNCED AS PER RULE 34 OF ITAT RULES, 1963 ON 07.09.2021. SD/- SD/- (RAJPAL YADAV) (MANISH BORAD) VICE PRESIDENT ACCOUNTANT ME MBER / DATED : 07.09.2021 PATEL/PS COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE