A.C.I.T. CENT.CIR.13, MUMBAI V. VIVEK VENUGOPAL, CHENNAI

ITA 5454/MUM/2012

• Counselvise Citation: 545419914 RSA 2012
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 11-02-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 30-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADEEP SHAURYA ARYA
• Section: 54F; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI D.MANMOHAN, VICE PRESIDENT AND SHRI RAJENDRA, ACCOUNTANT MEMBER I.T.A. NO.5454/MUM/2012 (ASSESSMENT YEAR : 2009-10) ACIT CENTRAL CIRCLE-13 MUMBAI. VS. SHRI VIVEK VENUGOPAL N0.1583, J-BLOCK 15 TH MAIN ROAD, ANNA NAGAR CHENNAI-600 040. PAN/GIR NO. AEBT 3112 P ( APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : NONE DEPARTMENT BY : SHRI PRADEEP SHAURYA ARYA DATE OF HEARING : 26 . 6 .2014 DATE OF PRONOUNCEMENT : 26 . 6 .2014 O R D E R PER D. MANMOHAN, V.P : THIS APPEAL IS FILED AT THE INSTANCE OF THE REVENUE AND IT PERTAINS TO ASSESSMENT YEAR 2009-10. FOLLOWING GROUNDS WERE RAI SED. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, LEARNED CIT(A) HAS ERRED IN ALLOWING THE DEDUCTION U/S. 54 OF THE I.T. ACT OF RS.25,00,000/- OUT OF RS.32,86,123/- WITHOUT APPREC IATING THE FACT THAT THE ASSESSEE COULD NOT SUBSTANTIATE THAT THE BUILDI NG STANDING TO THE LAND WAS A RESIDENTIAL HOUSE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, LEARNED CIT(A) ERRED IN ADMITTING ADDITIONAL EVIDEN CE UNDER RULE 46A OF THE I.T. RULES WITHOUT GIVING ANY OPPORTUNITY TO TH E ASSESSING OFFICER. 2. IN SHORT THE CASE OF THE ASSESSING OFFICER IS TH AT THE ASSESSEE DID NOT PURCHASE A RESIDENTIAL HOUSE AND, HENCE, IS NOT ENTITLED TO EXEMPTION U/S. OF 54F OF THE I.T. ACT, 1961. ON APPEAL FILED BY TH E ASSESSEE LD. CIT(A) OBSERVED AS UNDER :- ITA NO.5454/M/12 AY:09-10 2 2.6.2 I HAVE CONSIDERED THE SUBMISSIONS MADE BY T HE LD. A.R. AND FIND FROM THE AGREEMENT FOR PURCHASE OF RESIDENTIAL HOUSE WHI CH WAS ALSO SUBMITTED BEFORE THE A.O. AND A NOTARIZED ENGLISH TRANSLATION OF WHICH HAS BEEN OBTAINED, THAT PROPERTY IN QUESTION WAS PURCHASED BY THE APPE LLANT ALONG WITH THE JANMAM RIGHTS, IMPROVEMENTS, HOUSE, WELL AND EASEME NT RIGHTS AND LAND APPURTENANT THERETO FOR A CONSIDERATION OF RS.25 LA KH. THUS, THE OBSERVATION OF THE LD. A.O. THAT IT WAS NOT POSSIBLE TO ASCERTAIN WHETHER THE APPELLANT HAD PURCHASED A HOUSE OR MERELY A PIECE OF LAND IS INCO RRECT. AS FAR AS DENIAL OF DEDUCTION U/S.54F ON THE VACANT PIECE OF LAND APPUR TENANT TO THE HOUSE IS CONCERNED, MY ATTENTION WAS DRAWN TO THE DECISION I N THE CASE OF ADDL. CIT VS. NARENDRA MOHAN UNILYAL 34 SOT 152 (DEL.) AND SHYAMS UNDER MUKIA VS. ITO 38 ITD (JP) 125 WHERE IT HAS BEEN HELD THAT COST OF VACANT LAND APPURTENANT AND FORMING PART OF THE RESIDENTIAL UNIT IS TO BE C ONSIDERED FOR CLAIM OF DEDUCTION U/S.54F EVEN IF NO CONSTRUCTION HAS BEEN DONE ON THE APPURTENANT LAND. 2.6.3 IN VIEW OF THE ABOVE, IT IS APPARENT THAT TH E APPELLANT IS ELIGIBLE FOR DEDUCTION US/.54F. HOWEVER, DURING THE COURSE OF AP PELLATE PROCEEDINGS FRESH WORKING OF REVISED CLAIM OF EXEMPTION HAS BEEN GIVE N WHICH IS AS UNDER- THE SALE DEED WAS EXECUTED AND REGISTERED ON 5 TH NOV, 2009 FOR TOTAL CONSIDERATION OF RS.25 LACS. THE ASSESSEE HAS PAID A SUM OF RS. 23,70,000/- ON OR BEFORE 31/03/2009 AND BALANCE AM OUNT OF RS.1,30,000/- ON 10 TH APRIL, 2009. THE ASSESSEE INCURRED FURTHER EXPENDITURE OF RS.3,97,611/- BY WAY OF STAMP DUTY AND REGISTRATION CHARGES. HENCE TOTAL COST WORKS OUT TO RS. 28,97,6 11/- . IN VIEW OF THE ABOVE, ASSESSEE AT THE TIME OF ASSES SMENT PROCEEDING REVISED THE CLAIM OF EXEMPTION U/S. 54F FOR RS.28,85,426/-. THE WORKING IS AS UNDER:- 28,97,611 /- X 1,32,77,264/- -------------------------------------- = RS.28,85,4 26/- 1,33,33,333/- 2.6.4 HOWEVER, AS AGAINST THE ABOVE, LD. A.O. HAS OBSERVED IN THE ASSESSMENT ORDER THAT APPELLANT FILED A REVISED CLA IM OF DEDUCTION U/S.54F TO THE EXTENT OF RS.25,00,000/- ONLY. THEREFORE, I AM INCLINED TO ALLOW DEDUCTION U/S.54F ONLY TO THE EXTENT OF RS.25 LAKH AS PER THE CLAIM MADE BY THE APPELLANT BEFORE THE LD. A.O. 2.6.5 ACCORDINGLY, THIS GROUND IS PARTLY ALLOWED. ITA NO.5454/M/12 AY:09-10 3 3. THOUGH THE REVENUE PREFERRED AN APPEAL BEFORE US NO EVIDENCE WAS PLACED TO SUBSTANTIATE ITS CONTENTION. HAVING R EGARD TO THE CIRCUMSTANCES OF THE CASE AND DETAILS GIVEN BY CIT(A) WE ARE OF T HE VIEW THAT THE ORDER PASSED BY CIT(A) DOES NOT CALL FOR ANY INTERFERENCE. IN SH ORT, ORDER OF CIT(A) IS AFFIRMED AND APPEAL BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 26 TH DAY OF JUNE, 2014 . SD/- (RAJENDRA) ACCOUNTANT MEMBER SD/- (D. MANMOHAN) VICE PRESIDENT MUMBAI; DATED : 26/6/2014 JV. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( (( ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI