Smt. Syed Rabiya Begum, Hyderabad V. DCIT, Central Circle-6, Hyderabad

ITA 534/HYD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59243 (ITAT-HYDERABAD)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 29-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V SRINIVAS
• Assessee Lawyers: K A SAI PRASAD
• Keywords: Capital asset
• Section: 54F; 2(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBE R. ITA NO.534/HYD/2011 (ASSESSMENT YEAR 2008-09) SMT. SYED RABIA BEGUM, NEEKNAMPUR, RAJENDRANAGAR, HYDERABAD. (PAN - AMCPR 1955 P ) V/S DY. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE-6, HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.A.SAI PRASAD RESPONDENT BY : SHRI V.SRINIVAS DATE OF HEARING 31. 1.2012 DATE OF PRONOUNCEMENT 10.2.2012 O R D E R PER ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE CIT(A)-I, HYDERABAD DATED 19.1.2011 FOR THE ASS ESSMENT YEAR 2008-09. 2. THE FIRST EFFECTIVE GROUND OF THE ASSESSEE IN THIS APPEAL, BEING GROUND NO.2, RELATES TO DISALLOWANCE OF ASSES SEES CLAIM FOR RELIEF UNDER S.54F OF THE ACT. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEES, WHO IS IN RECEIPT OF CERTAIN CAPITAL GAINS ON SALE OF LANDED PROPERTY, INITIALLY CLAIMED EXEMPTION U/S 54F TO THE EXTENT OF RS.1,23, 62,500. WHEN ASKED FOR THE DETAILS, THE ASSESSEE SUBMITTED BEFOR E THE ASSESSING OFFICER THAT SHE HAS ACTUALLY PURCHASED PROPERTY ON LY FOR RS.76,00,000, WHICH IS ELIGIBLE FOR DEDUCTION UNDER S.54F AND BY MISTAKE, RELIEF UNDER S.54F WAS CLAIMED AT RS.1,23,62,500. IN THIS VIEW OF THE MATTER, THE ASSESSING OFFICER OUTRIGHT DISALLOWED T HE EXCESS CLAIM FOR DEDUCTION UNDER S.54F OF RS.47,62,500. WITH REGARD TO THE BALANCE ITA NO.1111/HYD/2011 SMT. SYED RABIA BEGUM,NEEKNAMPUR, RAJENDRANAGAR, HYDERABAD. 2 AMOUNT OF RS.76,00,000 ALSO, THE ASSESSING OFFICER NOTICED THAT THE ASSESSEE HAS PURCHASED TWO FLATS AS PER THE AGREEME NT OF SALE DATED 4.2.2008. OUT OF THIS AMOUNT OF RS.76,00,000 ALSO, THE ASSESSEE PAID ONLY RS.60,00,000 AND THE BALANCE WAS PAYABLE AT TH E TIME OF REGISTRATION OF THE FLATS, WHICH WAS NOT DONE TILL THE DATE PASSING THE ASSESSMENT ORDER. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE RELIEF UNDER S.54F CAN BE CLAIMED ONLY ON THE PURCHASE OF ONE FLAT, WHEREAS THE ASSESSEE HAS PURCHASED TWO FLATS, AND CONSEQUEN TLY, CONDITIONS OF S.54F WERE VIOLATED. REFERRING FURTHER TO THE DECIS ION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT V/S. JAYALAKSH MI RAJENDRAN(152 ITR 742) AND OF THE HONBLE KERALA HIGH COURT IN TH E CASE OF P.K.KESHWAVA NAIR V./S. CIT(174 ITR 253), HE HELD T HAT SINCE THE REGISTRATION OF THE FLATS IN THE NAME OF THE ASSESS EE HAS NOT TAKEN PLACE, AND AS SUCH THE PURCHASE OF THE PROPERTY WAS NOT CONCLUDED, THE ASSESSEE IS NOT ENTITLED FOR ANY RELIEF UNDER S .54F OF THE ACT. 4. ON APPEAL, THE CIT(A) CONFIRMED THE VIEW TAKEN BY THE ASSESSING OFFICER. HENCE, ASSESSEE IS IN SECOND AP PEAL BEFORE US. 5. WE HEARD THE PARTIES AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND OTHER MATERIAL ON RECORD. THOUGH T HE LEARNED COUNSEL FOR THE ASSESSEE, SHRI K.A.SAI PRASAD SUBMITTED THA T THE CLAIM OF THE ASSESSEE WITH REGARD TO RELIEF UNDER S.54F OF THE A CT IS COVERED BY THE DECISION OF THIS TRIBUNAL IN ITA NOS.1576 TO 1579/ HYD/2010 IN THE CASE OF M.SHUJUDDIN AND OTHERS, WE FIND THAT THE FA CTS OF THE PRESENT CASE ARE QUITE DISTINGUISHABLE INASMUCH AS IN THOSE CASES, CLAIM FOR RELIEF UNDER S.54F WAS REJECTED FOR WANT OF EVIDENC E TO SUBSTANTIATE THE CLAIM OF EXPENDITURE INCURRED ON PURCHASE OF PR OPERTY, AS AGAINST OTHER REASONS STATED BY THE ASSESSING OFFICER AND D ISCUSSED BY THE ASSESSING OFFICER IN THE PRESENT CASE. THE ASSESSI NG OFFICER, IN THE FIRST PLACE, NOTED THAT THE ASSESSING OFFICER HAS PURCHAS ED TWO FLATS AND ITA NO.1111/HYD/2011 SMT. SYED RABIA BEGUM,NEEKNAMPUR, RAJENDRANAGAR, HYDERABAD. 3 RELIEF COULD BE CLAIMED ONLY IN RESPECT OF ONE RESI DENTIAL UNIT AND NOT TWO FLATS. WITH REGARD TO THIS OBSERVATION OF THE ASSESSING OFFICER, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THO UGH THE ASSESSEE PURCHASED TWO FLATS, BOTH THE FLATS TOGETHER WERE M ADE TO CONSTITUTE FOR THE ASSESSEE AS ONLY ONE RESIDENTIAL UNIT, AND CONSEQUENTLY, THE ASSESSEE IS ENTITLED FOR RELIEF UNDER S.54F IN RELA TION TO BOTH THE FLATS. THIS CLAIM OF THE ASSESSEE NEEDS TO BE VERIFIED. F URTHER, ONE OTHER REASON FOR WHICH THE ASSESSING OFFICER REJECTED THE ASSESSEES CLAIM FOR RELIEF UNDER S.54F IS THAT THE FLATS PURCHASED BY T HE ASSESSEE WERE NOT REGISTERED TILL THE DATE OF THE PASSING OF THE ASSE SSMENT ORDER, AND REGISTRATION BEING CRUCIAL AND THAT ALONE CONCLUDES THE TRANSACTION OF PURCHASE OF AN IMMOVABLE PROPERTY, IN VIEW OF THE D ECISIONS OF HONBLE MADRAS HIGH COURT DECISION IN THE CASE OF CIT V/S. JAYALAKSHMI RAJENDRAN (SUPRA) AND OF THE HONBLE HONBLE KERAL A HIGH COURT IN THE CASE OF P.K.KESHWAVA NAIR (SUPRA). WE ARE IN AGREE MENT WITH THIS VIEW TAKEN BY THE ASSESSING OFFICER. SINCE THE FIN DING OF THE LOWER AUTHORITIES THAT THE PROPERTY PURCHASED WAS NOT REG ISTERED IN FAVOUR OF THE ASSESSEE DURING THE ASSESSMENT YEAR UNDER CONSI DERATION, THEY WERE JUSTIFIED IN DENYING THE CLAIM OF THE ASSESSEE FOR RELIEF UNDER S.54F OF THE ACT. 6. HOWEVER, IN TERMS OF S.54F OF THE ACT, THE ASSE SSEE HAS TO PURCHASE THE RESIDENTIAL PROPERTY WITHIN THE TIME S TIPULATED UNDER THE PROVISIONS OF THAT SECTION. IN CASE THE CONTENTION OF THE ASSESSEE THAT BOTH THE FLATS PURCHASED WERE MADE FOR THE ASSESSEE TO CONSTITUTE ONE RESIDENTIAL UNIT ONLY, AND IF OTHER CONDITIONS SPEC IFIED IN S.54F OF THE ACT ARE FULFILLED, ASSESSEES CLAIM FOR RELIEF UNDE R S.54F OF THE ACT, MAY BE CONSIDERED APPROPRIATELY IN THE RELEVANT YEAR, I N WHICH THE REGISTRATION HAS TAKEN PLACE. ITA NO.1111/HYD/2011 SMT. SYED RABIA BEGUM,NEEKNAMPUR, RAJENDRANAGAR, HYDERABAD. 4 7. THUS, AS FAR AS THE ASSESSMENT YEAR 2008-09 IS CONCERNED, WE FIND NO INFIRMITY IN THE ACTION OF THE LOWER AUT HORITIES IN REJECTING THE CLAIM OF THE ASSESSEE FOR DENYING THE RELIEF UN DER S.54F OF THE ACT. 8. THE NEXT EFFECTIVE GROUND OF THE ASSESSEES IN THIS APPEAL READS AS FOLLOWS- .3 WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE APP ELLANT SUBMITS THE FOLLOWING NEW GROUND, FOR THE FIRST TIME BEFORE THE HONBLE INCOME TAX APPELLATE TRIBUNAL. THE RELEVANT ASSET DOES NOT COME WITHIN THE PURVIE W OF THE CAPITAL ASSET AS DEFINED IN SECTION 2(14) AND, TH EREFORE, GAIN ARISING FROM THE SALE OF THIS ASSET IS NOT TAXABLE. 9. ON CAREFUL CONSIDERATION OF THE RIVAL SUBMISSIO NS WE FIND THAT THOUGH THE ASSESSEE CLAIMS THAT THIS GROUND IS COVE RED BY THE DECISION OF THE TRIBUNAL IN THE CASE OF SRINIVAS PANDIT (30 SOT 350 ) AND ALSO PLACED RELIANCE ON THE DECISION OF THIS TRIBUNAL DATED 16.1.2012 IN THE CASES OF SMT.GOUSIA BEGUM (ITA NO.1024/HYD/2011) AND OTHERS, WE DO NOT FIND MERIT IN THAT CONTENTION OF THE ASSESSEE, AND WE FIND NO JUSTIFIC ATION TO ENTERTAIN THE SAID ADDITIONAL GROUND AT THIS SECOND APPELLATE STAGE, M ORE SO, SINCE IT WAS NEVER THE CASE OF THE ASSESSEE THAT PROPERTY SOLD WAS NOT A CAPITAL ASSET WITHIN THE MEANING OF S.2(14) OF THE ACT, AND ON THE CONTR ARY, THE ASSESSEE HERSELF, OFFERING CAPITAL GAINS ARISING ON THE TRANSFER OF T HE PROPERTY TO TAX, CLAIMED, HOWEVER, EXEMPTION IN RESPECT OF THE SAME UNDER S.5 4F OF THE ACT. WE ACCORDINGLY DECLINE TO ENTERTAIN THE ADDITIONAL GRO UNDS SOUGHT TO BE RAISED BY THE ASSESSEES IN THIS APPEAL. 10. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 10.2.2012 SD/- SD/- (CHANDRA POOJARI) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER. JUDICIAL MEMBER. DT/- 10TH FEBRUARY, 2012 ITA NO.1111/HYD/2011 SMT. SYED RABIA BEGUM,NEEKNAMPUR, RAJENDRANAGAR, HYDERABAD. 5 COPY FORWARDED TO: 1. SMT. SYED RABIA BEGUM, ( NEEKNAMPUR, RAJENDRANAGAR), C/O. M/S. CH.PARTHASARATHY & CO., 1-1-298/2/B/3, 1 ST FLOOR, SOWBHAGYA AVENUE, STREET NO.1, ASHOKNAGAR, HYDERABA D 500 020. 2. DY. COMMISSIONER OF INCOME - TAX , CENTRAL CIRCLE 6 HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) - I, HYDERABAD 4. COMMISSIONER OF INCOME - TAX CENTRAL , HYDERABAD 5. DEPARTMENTAL REPRESENTATIVE , ITAT, HYDERABAD B.V.S.