Ajit Kumar Gupta, Delhi V. ACIT, New Delhi

ITA 5377/DEL/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6831 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 30-11-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 14-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAMANJANEYULU
• Assessee Lawyers: ASHISH CHADDHA
• Keywords: Opportunity of being heard; Additional evidence; Revised return
• Section: 54F; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC - 1 BENCH, NEW DELHI BEFORE N.K. SAINI , ACCOUNTANT MEMBER ITA N O. 5377 / DEL /201 6 A SSESSMENT YEAR: 20 1 1 - 1 2 AJIT KUMAR GUPTA HOUSE NO. 3, ROAD NO. 51, PUNJABI BAGH DELHI PAN - AAJPG5046R VS. ACIT CIRCLE - 19(1) NEW D ELHI (APPELLANT) (RESPONDENT) APPELLANT BY : SH. VED JAIN, ADV & SH. ASHISH CHADDHA, ADV RESPONDENT BY : SHRI. RAMANJANEYULU, SR. DR DATE OF HEARING : 30 - 1 1 - 201 6 DATE OF PRONOUNCEMENT : 0 - 02 - 201 7 O R D E R PER N.K. SAINI , A .M . : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 13.7 .2016 OF CIT (A) - 34 , NEW DELHI. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL : - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER P ASSED BY THE LEARNED CIT(A) IS BAD, BOTH IN THE EYES OF LAW AND ON THE FACTS. 2. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN NOT ADMITTING THE ADDITIONAL EVIDENCES FILED BY THE ASSESSEE DURING THE A PPELLATE PROCEEDINGS. ( II) WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN ADJUDICATING THE ISSUE ON THE BASIS OF THE ARCHITECT S CERTIFICATE, BEING THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE, DESPITE THE FACT TH AT HE HIMSELF HAS DENIED TO ADMIT THE SAID ADDITIONAL EVIDENCE. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LEARNED CIT(A) HAS ERRED BOTH ON 2 ITA NO. 5376 /DEL/201 6 FACTS AND IN LAW IN CONFIRMING THE DISALLOWANCE OF EXEMPTION UNDER SECTION 54 AMOUNTING TO RS.9,51,174/ - CLAIMED BY THE ASSESSEE. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN HOLDING THAT THE REVISED CLAIM IS NOT ADMITTABLE, DESPITE THE FACT THAT NO SUCH REVISED CLAIM WAS EVER MADE BY THE ASSESSEE. (II) TH AT THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN MISINTERPRETING THE PROPOSITION LAID DOWN IN THE DECISION OF THE APEX COURT IN THE CASE OF GOETZE (INDIA) LTD. 284 ITR 323. (I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW IN CONFIRMING THE DISALLOWANCE, DESPITE THE FACT THAT THE ASSESSEE FULFILLED ALL THE CONDITIONS TO BE ELIGIBLE TO GET EXEMPTION UNDER SECTION 54 OF THE ACT. (II) THAT THE LEARNED CIT(A) HAS ERRED IN NOT ADJUDICATING THE ISS UE THAT THE DISALLOWANCE WAS MADE BY THE AO BY NOT CONSTRUING THE CONDITIONS LAID DOWN IN SECTION 54 OF THE ACT PROPERLY AND CONFUSING THE SAME WITH THE CONDITIONS UNDER SECTION 54F OF THE ACT. 2. FROM THE ABOVE GROUNDS, IT WOULD BE CLEAR THAT ONLY GRIEV ANCE OF THE ASSESSEE RELATES TO THE CONFIRMATION OF DISALLOWANCE OF RS. 9,51,174/ - BY DENYING THE EXEMPTION UNDER SECTION 54 OF THE INCOME TAX ACT (HEREINAFTER REFERRED TO AS THE ACT). 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED A RETURN OF I NCOME ON 30.9.2011 DECLARING AN INCOME OF RS. 20,30,970/ - , SUBSEQUENTLY THE ASSESSEE FILED A REVISED RETURN ON 31.3.2013 DECLARING AN INCOME OF RS. 28,21,116/ - WHICH WAS PROCESSED UNDER SECTION 143(1) OF THE ACT AND THEREAFTER THE CASE WAS SELECTED FOR SCR UTINY. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT THE ASSESSEE HAD DECLARED A LONG TERM CAPITAL GAIN OF RS. 9,51,174/ - BY SELLING PROPERTY NO. B - 38A 3 ITA NO. 5376 /DEL/201 6 MAJLIS PARK, DELHI AND FURTHER CLAIMED DEDUCTION OF RS. 9,51,174/ - U/S 54 OF THE ACT . THE AO ASKED THE ASSESSEE TO FURNISH THE SUBSTANTIAL EVIDENCE AS REGARDS TO THE CLAIM OF THE DEDUCTION UNDER SECTION 54 OF THE ACT. THE ASSESSEE SUBMITTED THAT HE PURCHASED RESIDENTIAL PROPERTY BEARING NO. 2 LAK K AD M ANDI, S H RI GANGA NAGAR , RAJASTHAN FOR A SUM OF RS. 30,00,000/ - . THE ASSESSEE ALSO FURNISHED COPY OF PURCHASE DEED RELATING TO THE PURCHASE OF ABOVE MENTIONED PROPERTY. THE AO, HOWEVER, DID NOT ALLOW THE CLAIM OF THE ASSESSEE BY OBSERVING THAT THE ASSESSEE WAS NOT ENTITLED FOR CLAIM OF DEDUCTION UNDER SECTION 54 OF THE ACT IN VIEW OF THE FOLLOWING REASONS : - 1 . THE ASSESSEE CLAIMED DEDUCTION U/S 54 OF I.T.ACT, 1961 BY SUBMITTING THAT HE PURCHASED A RESIDENTIAL PROPERTY BEARING NO.2 LAKKAD MANDI, SHRI GANGA NAGAR, RAJASTHAN FOR A SUM OF RS.30,00,000/ - . FROM THE PERUSAL OF THE DETAILS FILED BY THE ASSESSEE, IT IS SEEN THAT THE ABOVE MENTIONED PROPERTY IS NOT A RESIDENTIAL HOUSE, WHEREAS IT IS A PLOT OF LAND OPEN FROM FOUR SIDES. THE ASSESSEE WAS CONFRONTED WITH THIS FACT OF THE CASE. THE ASSESSEE VIDE L ETTER DATED 27.1.2014 ADMITTED HIMSELF THAT HIS INVESTMENT IN PURCHASE OF PROPERTY BEARING NO.2 LAKKAD MANDI, SHRI GANGA NAGAR, RAJASTHAN DOES NOT QUALIFY THE CONDITIONS LAID DOWN FOR THE CLAIMING DEDUCTION U/S 54 OF I.T.ACT, 1961. 2 . AS PER THE PROVISIONS O F SECTION 54F(1), THE DEDUCTION U/S 54 IS AVAILABLE IF THE ASSESSEE WITHIN A PERIOD OF THREE YEARS AFTER THE DATE ON WHICH THE TRANSFER TOOK PLACE CONSTRUCTED A RESIDENTIAL HOUSE (NEW ASSET). THE ASSESSEE CLAIMED CONSTRUCTION OF RESIDENTIAL HOUSE AT 3/51, WEST PUNJABI BAGH, DELHI AND SUBMITTED THAT THE CONSTRUCTION WAS COMPLETED IN THE MID OF 2013. ON THE OTHER HAND THE ASSESSEE IS CLAIMING THE PROPERTY NO. 3/51, WEST PUNJABI BAGH, DELHI AS SELF OCCUPIED PROPERTY AND HAS ALREADY CLAIMED IT AS SELF OCCUPIED RESIDENTIAL HOUSE PROPERTY IN THE A.Y.2010 - 11. THE ASSESSEE, IN THIS CASE HAS NOT CONSTRUCTED A RESIDENTIAL HOUSE BECAUSE THE ASSESSEE HAS ALREADY CLAIMED THIS HOUSE I.E. 3/51, WEST PUNJABI BAGH, DELHI AS HIS RESIDENTIAL HOUSE. FURTHER, MORE THE ASSESSEE H AS FAILED TO SUBSTANTIATE HIS CLAIM OF CONSTRUCTION OF A RESIDENTIAL HOUSE AND DEDUCTION U/S 54 WITH SUBSTANTIAL EVIDENCE. 3. THE ASSESSEE OWNS MORE THAN ONE RESIDENTIAL HOUSE OTHER THAN THE NEW ASSET. AS PER THE STATEMENT OF AFFAIRS FILED BY THE ASSESSEE AS ON 31.03.2011 THE ASSESSEE IS HAVING FOLLOWING RESIDENTIAL PROPERTIES: (I) 550 SQ YARD, SIRASPUR DELHI (II) A - 14 & A - 15, GIRIRAJ NIKUNJ, VRINDHAWAN 4 ITA NO. 5376 /DEL/201 6 (III) HOUSE NO - 3/51, WEST PUNJABI BAGH (IV) HOUSE NO - 333, BADDI THE AO, ACCORDINGLY DISALLOWED THE CLAIM OF THE ASSESSEE AND MADE THE ADDITIONS RS. 9,51,174/ - TO THE INCOME OF THE ASSESSEE. 3 . BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LEARNED CIT( A) AND SUBMITTED THAT THE ISSUE OF OWING MORE THAN ONE RESIDENTIAL HOUSE WAS RELEVANT TO EXEMPTI ON/REDUCTION U/S 54(F) OF THE ACT AND NOT U/S 54 OF THE ACT. THE ASSESSEE ALSO FILED A CERTIFICATE FROM ARCHITECT MENTIONING THAT THE CONSTRUCTION WAS COMPLETED BY THE YEAR 2013. THE LEARNED CIT (A) ALSO ASKED A REPORT FROM THE AO ON THE SAID CERTIFICATE B EING ADDITIONAL EVIDENCE, HOWEVER, NO REPORT WAS RECEIVED . THE LEARNED CIT(A) OBSERVED THAT THE ASSESSEE HAD NOT MADE HIS CASE AS TO WHY THE SAID CERTIFICATE IF IT WAS OBTAINED ON 27.1.2014 COULD NOT BE FILED TILL 31.1.2014 WHEN THE ASSESSMENT ORDER WAS PA SSED . THE LEARNED CIT(A) ALSO ME NTIONED THAT NO APPROVED PLAN AND COMPLETION CERTIFICATE / OCCUPATION CERTIFICATE FROM LOCAL AUTHORITY HAD BEEN SUBMITTED. HE, THEREFORE, SUSTAINED THE ADDITION MADE BY THE AO. NOW, THE ASSESSEE IS IN APPEAL. 4 . WE HAVE CONSID ERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT APPEARS THAT THE ASSESSEE CLAIMED THE EXEMPTION U/S 54 OF THE ACT AND NOT U/S 54(F) OF THE ACT. IT IS ALSO NOTICED THAT THE CE RTIFICATE FROM THE ARCHITECT MENTIONING THE PERIOD OF COMPLETION OF CONSTRUCTION WAS FURNISHED BY THE 5 ITA NO. 5376 /DEL/201 6 ASSESSEE AS AN ADDITIONAL EVIDENCE BEFORE THE LEARNED CIT(A) WHO HAD NOT REJECTED THE SAME AND ASKED THE REMAND REPORT FROM THE AO. HOWEVER, THE IMPUGNED ORDER WAS PASSED WITHOUT WAITING FOR THE REMAND REPORT FROM THE AO. 5 . I, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS DEEM IT APPROPRIATE TO SET ASIDE THIS ISSUE BACK TO THE FILE OF THE AO TO BE ADJUDICATED AFRESH, IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSE S . ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF FEBRUARY , 201 7 . SD/ - ( N.K. SAINI ) ACCOUNTANT MEMBER DATED : 13 - 0 2 - 201 7 . SH COPY OF ORDER TO : - 1 ) THE APPELLANT; 2 ) THE RESPONDENT; 3 ) THE CIT ; 4 ) THE CIT(A) - , NEW DELHI ; 5 ) THE DR, I.T.A.T., NEW DELHI ; BY ORDER // TRUE COPY// ASSISTANT REGISTRAR ITAT , NEW DELHI 6 ITA NO. 5376 /DEL/201 6 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR. PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR. PS/PS 7 FILE SENT TO BENCH CLERK SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE ON WHICH FILE GOES TO THE A.R. 10 D ATE OF DISPATCH OF ORDER