ITO, Jaipur V. SHRI REKHA RAM JAT, Jaipur

ITA 525/JPR/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62009 (ITAT-JAIPUR)
• Duration Of Justice: 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-12-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 30-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VINOD JOHRI
• Assessee Lawyers: G MEHTA
• Keywords: Additional evidence; Corroborative evidences; Valuation report
• Section: 54F; 2(14); 54

Judgement Text

1 ITA 525-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH : A JAIPUR. BEFORE SHRI R.K. GUPTA AND SHRI SANJAY ARORA ITA NO. 525/JP/2011 ASSTT. YEAR : 2006-07. THE INCOME-TAX OFFICER, VS. SHRI REKHA RAM JAT S/ O SHRI WARD 7(2), SUKHRAM, VILL.& POST : NIMEDA, JAIPUR. JAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VINOD JOHRI RESPONDENT BY : SHRI G. MEHTA DATE OF HEARING : 16.04.2012. DATE OF PRONOUNCEMENT : 30.04.2012 ORDER DATE OF ORDER : 20/04/2012. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY DEPARTMENT AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2006-07. 2. THE DEPARTMENT IS OBJECTING IN ALLOWING DEDUCTIO N UNDER SECTION 54F WITHOUT PROVIDING OPPORTUNITY TO THE AO TO REBUT THE REPORT OF REGISTERED VALUER AND IN ACCEPTING THE REPORT OF THE VALUER. 3. ON INFORMATION THAT ASSESSEE HAD MADE DEPOSITS I N HIS CENTRAL BANK OF INDIA ACCOUNT AT RS. 60 LACS ON VARIOUS DATES, THE ASSESS EE WAS REQUIRED TO FILE THE RETURN. HOWEVER, NOTICES SENT BY AO EITHER WERE NOT RECEIVE D OR ASSESSEE DID NOT APPEAR. THEREFORE, ASSESSMENT WAS COMPLETED AT RS. 60 LACS ON THE BASIS OF DEPOSITS MADE IN THE 2 BANK AND AN ADDITION OF RS. 50,000/- WAS MADE ON AC COUNT OF INCOME FROM OTHER SOURCES. IN THIS WAY, AN ADDITION OF RS. 60.50 LACS WAS MADE BY THE AO. ASSESSEE FILED APPEAL BEFORE LD. CIT (A). REASON FOR NOT APPEARING BEFOR E AO WAS EXPLAINED. IT WAS SUBMITTED THAT THE ASSESSEE SOLD HIS AGRICULTURAL LAND WHICH IS BEYOND 8KM OF MUNICIPAL LIMIT. THEREFORE, THE SAME IS NOT ASSESSABLE UNDER CAPITAL GAINS IN TERMS OF SECTION 2(14) OF THE ACT. IT LAWS FURTHER EXPLAINED THAT HE IS AN AGRICU LTURIST AND SOLD HIS LAND IN VILLAGE NIBEDA. IT WAS FURTHER SUBMITTED THAT OUT OF THE S ALE CONSIDERATION, THE ASSESSEE HAS MADE INVESTMENT OF RS. 51,75,308/- ON ACCOUNT OF CONSTRU CTION IN THE HOUSE AND ASSESSEE IS ELIGIBLE FOR DEDUCTION UNDER SECTION 54F. IT WAS A LSO SUBMITTED THAT THE VALUE OF LAND AS ON 1.4.1981 WAS RS. 15,000/- PER BIGHA AND IF THIS VALUE IS TAKEN THEN NO FURTHER CAPITAL GAIN IS LIABLE TO BE PAID. DETAILS OF SALE OF LAND ALONG WITH COPY OF REGISTRY AND A COPY OF VALUATION REPORT ISSUED BY SHRI VINAY KUMAR SONI WA S FILED AND IT WAS REQUESTED THAT THE SAME SHOULD BE ACCEPTED AS ADDITIONAL EVIDENCE IN V IEW OF PROVISIONS OF SECTION 46A OF THE ACT. AFTER CONSIDERING THE SUBMISSIONS AND PER USING THE MATERIAL ON RECORD, THE LD. CIT (A) FOUND THAT THE LAND SOLD BY ASSESSEE SITUAT ED WITHIN 8 KM OF MUNICIPAL LIMIT. THEREFORE, THE SAME IS LIABLE FOR CAPITAL GAINS TAX IN TERMS OF SECTION 2(14) OF THE ACT. HOWEVER, SINCE CERTAIN ADDITIONAL EVIDENCES WERE FI LED BEFORE HIM, THEREFORE, THE LD. CIT (A) SENT THE EVIDENCES TO THE AO TO SUBMIT REMAND R EPORT. THE AO SENT HIS REMAND REPORT BY OBSERVING THAT SINCE THE LAND IN QUESTION IS SITUATED WITHIN 8 KM OF MUNICIPAL LIMIT, THEREFORE, THE SAME IS LIABLE FOR CAPITAL GA INS TAX. IT WAS FURTHER SUBMITTED THAT ASSESSEE HAS FILED ONLY VALUATION REPORT AND NO OTH ER EVIDENCES HAVE BEEN FILED, THEREFORE, THE ASSESSEE IS NOT ENTITLED FOR DEDUCTION UNDER SE CTION 54F. THEREAFTER, THE ASSESSEE FILED HIS COUNTER REPLY AND IT WAS SUBMITTED THAT ASSESSE E HAS FILED DETAILS IN SHAPE OF VALUATION 3 REPORT. VALUATION REPORT IS VERY CLEAR. THE ASSESS EE HAS ALSO FILED A COPY OF RATION CARD PROVING THAT HOUSE HAS BEEN CONSTRUCTED AND ASSESSE E IS RESIDING THERE. THEREFORE, ASSESSEE IS ENTITLED FOR DEDUCTION UNDER SECTION 54 F OF THE ACT. THE LD. CIT (A) AFTER CONSIDERING THE REPORT AND OTHER MATERIALS FOUND TH AT THE ADDITIONAL EVIDENCES FILED BY ASSESSEE GOES TO THE ROOT OF THE CASE, THEREFORE, T HERE WERE ACCEPTED. AFTER CONSIDERING THE SUBMISSIONS AND PROVING OTHER MATERIAL ON RECOR D, THE LD. CIT (A) FOUND THAT ASSESSEE HAS CONSTRUCTED A HOUSE ON HIS LAND. REPORT IS THER E AND COPY OF RATION CARD IS FILED THAT THE HOUSE IS CONSTRUCTED, THEREFORE, THE ASSESSEE I S ENTITLED FOR DEDUCTION UNDER SECTION 54F. ACCORDINGLY, THE AO WAS DIRECTED TO ALLOW THE DEDUCTION UNDER SECTION 54F AS PER PROVISIONS OF LAW. 4. NOW THE DEPARTMENT IS IN APPEAL HERE BEFORE THE TRIBUNAL. 5. THE LD. D/R PLACED RELIANCE ON THE ORDER OF THE AO. IT WAS FURTHER SUBMITTED THAT DEPARTMENT IS NOT AGAINST IN ADMITTING THE ADDITION AL EVIDENCE BUT HAS NOT FILED ANY SUPPORTING EVIDENCE, THEREFORE, VALUATION REPORT SH OULD NOT BE ACCEPTED. 6. ON THE OTHER HAND, THE LD. COUNSEL OF THE ASSESS EE STRONGLY PLACED RELIANCE ORDER OF LD. CIT (A). IT WAS SUBMITTED THAT ASSESSEE HAS CONSTRUCTED HOUSE ON THE LAND OWNED BY HIM. THERE IS NO DISPUTE IN SALE OF AGRICULTURA L LAND. THERE IS NO DISPUTE IN CONSTRUCTION OF THE HOUSE AS REPORT OF THE VALUER W AS NOT FOUND INCORRECT. THE SELLER IS AN AGRICULTURIST AND AFTER CONSTRUCTING HIS HOUSE, RAT ION CARD HAS BEEN OBTAINED FROM THE APPROPRIATE AUTHORITY WHICH HAS BEEN ISSUED. THE V ALUER SHRI VINAY KUMAR SONI HAS VALUED THE CONSTRUCTION AND ENTIRE AMOUNT OF SALE C ONSIDERATION OUT OF SALE OF AGRICULTURAL LAND HAS BEEN WITHDRAWN FROM THE BANK FOR UTILIZING THE SAME IN HOUSE CONSTRUCTION. IT IS NOT THE CASE OF THE DEPARTMENT THAT ASSESSEE HAS IN VESTED MONEY SOMEWHERE ELSE. 4 ACCORDINGLY IT WAS SUBMITTED THAT THE LD. CIT (A) W AS JUSTIFIED IN DIRECTING TO ALLOW THE BENEFIT UNDER SECTION 54F ON ACCOUNT OF CONSTRUCTIO N OF HOUSE. 7. WE HAVE HEARD RIVAL SUBMISSIONS AND CONSIDERED T HEM CAREFULLY. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERI AL ON RECORD, WE FIND THAT LD. CIT (A) WAS JUSTIFIED IN DIRECTING TO ALLOW DEDUCTION UNDER SECTION 54F. THE VALUERS REPORT WAS FILED BEFORE LD. CIT (A) WHICH WAS SENT TO THE AO F OR HIS REMAND REPORT. IF THE AO WAS NOT SATISFIED THEN HE SHOULD HAVE INSPECTED THE SIT E WHETHER ANY CONSTRUCTION HAS BEEN MADE OR NOT OR HE SHOULD HAVE SUMMONED THE ASSESSEE TO FILE ANY OTHER REPORT HE WANTS. NO DISCREPANCY HAS BEEN POINTED OUT IN THE VALUATIO N REPORT EXCEPT THAT CERTAIN EXPENSES HAS BEEN INCURRED TO CLAIM DEDUCTION MORE. THIS IS ONLY PRESUMPTION. NOTHING HAS BEEN BROUGHT ON RECORD. NEITHER AO HAS MADE ANY ATTEMPT TO SEND ANY VALUATION REPORT. THE AMOUNT OF CONSIDERATION DEPOSITED IN THE BANK HAS B EEN WITHDRAWN FOR CONSTRUCTION OF THE HOUSE, COPY OF BANK ACCOUNT IS PLACED ON RECORD. IT IS NOT THE CASE OF THE DEPARTMENT THAT ASSESSEE HAS MADE INVESTMENT SOMEWHERE ELSE OTHER T HAN IN CONSTRUCTION OF HOUSE. THEREFORE, WITHOUT BRINGING ANY COGENT MATERIAL ON RECORD, MERELY SAYING THAT THE SAME IS NOT SUPPORTED BY FURTHER EVIDENCE, IN OUR CONSIDERE D VIEW IS NOT JUSTIFIED AND LD. CIT (A) WAS JUSTIFIED IN ACCEPTING THE EXPLANATION OF THE A SSESSEE WHICH WAS NOT FOUND INCORRECT OR OTHERWISE. IN VIEW OF THESE FACTS AND CIRCUMSTA NCES AND IN VIEW OF THE REASONING GIVEN BY LD. CIT (A) WE CONFIRM HIS ORDER. 8. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISMI SSED. 9. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30/ 04/2012. SD/- SD/- ( SANJAY ARORA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER 5 JAIPUR, D/- COPY FORWARDED TO :- THE ITO WARD 7(2), JAIPUR. SHRI REKHA RAM JAT, NIMEDA, JAIPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 525/JP/2011) BY ORDER, AR ITAT JAIPUR.