Dr. Jasvir Singh Rana, New Delhi V. ITO, New Delhi

ITA 5568/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4368 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 24-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P N MEHTA
• Section: 54F; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES C : DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA.NO.5568/DEL./2015 ASSESSMENT YEAR 2012-2013 DR. JASVIR SINGH RANA VS. INC OME TAX OFFICER 106, FIRST FLOOR, WARD 50(3), JOR BAGH, NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI P.N. MEHTA, CA REVENUE BY : SHRI ARUN KUMAR YADAV, SR. DR DATE OF HEARI NG : 28.08.2017 DATE OF ORDER : 22.09.2017 ORDER PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT, DR. JASVIR SINGH RANA BY FILING THE PR ESENT APPEAL SOUGHT TO SET ASIDE THE IMPUGNED ORDER DATED 29.7.2 015 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS), 17, NEW D ELHI FOR THE ASSTT. YEAR 2012-13 ON THE GROUNDS INTERALIA THAT :- 2 ITA.NO. 5568/DEL./2015 DR. JASVIR SINGH RANA VS. IT O 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE ASSESSING OFFICER HAS ERRED IN COMPUTING LONG TERM CAPITAL GA IN AT RS. 99,57,265/-. 2. THAT THE COMMISSIONER (APPEALS) IS WRONG IN NOT GRANTING EXEMPTION UNDER SECTION 54 AND 54F OF THE INCOME TA X ACT ON THE AMOUNT INVESTED FOR THE PURCHASE OF RESIDENTIAL PLOT AND DEPOSITS MADE UNDER CAPITAL GAIN IN THE BANK. 3. THAT WITHOUT PREJUDICE TO THE ABOVE GROUND NO. 1 AND 2 THE COMMISSIONER (APPEALS) HAS ERRED IN NOT TAKING INTO ACCOUNT THE PROVISIONS OF SECTION 54(2) OF THE INCO ME TAX ACT AND SECTION 54 F OF THE INCOME TAX ACT. 4. THAT WITHOUT PREJUDICE TO THE ABOVE GROUND NO. 1 AND 2 WHERE THE AMOUNT IS UNUTILIZED WITHIN THE PERIOD M ENTIONED IN SECTION 54 AND 54F AND THE UNUTILIZED PORTION IS TO BE TAXED AFTER THREE YEARS FROM THE DATE OF TRANSFER OF THE ORIGINAL ASSET. 5. THAT THE ORDER PASSED BY THE COMMISSIONER (APPEA LS) IS AGAINST THE LAW AND FACTS OF THE CASE. 2. BRIEFLY STATED THE FACTS NECESSARY FOR ADJUDICA TION OF THE CONTROVERSY AT HAND ARE : DURING THE SCRUTINY PROCE EDINGS A.O. NOTICED THAT THE ASSESSEE CLAIMED INCOME UNDER THE HEAD CAPITAL GAINS FROM SALE OF IMMOVABLE PROPERTY AND JEWELLE RY OUT OF WHICH ASSESSEE MADE INVESTMENT FOR PURCHASING A RESIDENTI AL HOUSE/ PLOT FOR A SALE CONSIDERATION OF RS. 75,85,818/- TO M/S. UNITECH ACACIA PROJECT PRIVATE LIMITED WHICH WAS PROVISIONALLY ALL OTTED TO HIM. ASSESSEE ALSO INVESTED BALANCE AMOUNT OF RS. 25 LAC S IN THE CAPITAL 3 ITA.NO. 5568/DEL./2015 DR. JASVIR SINGH RANA VS. IT O GAIN ACCOUNT SCHEME AND CLAIMED U/S 54 AND 54F OF T HE INCOME TAX ACT ( IN SHORT THE ACT). A.O. BEING DISSATISFIED WITH THE EXPLANATION FURNISHED BY THE ASSESSEE PROCEEDED TO CONCLUDE THA T THE ASSESSEE HAS FAILED TO FULFILL THE CONDITION LAID DOWN U/S 5 4 AND THE PERIOD OF TWO YEARS FROM THE PURCHASE OF HOUSE PROPERTY AND T HREE YEARS FOR THE CONSTRUCTION OF THE HOUSE PROPERTY HAS ALREADY BEEN EXPIRED IN THE MONTH OF JULY, 2014 AND THEREBY REJECTED THE CL AIM OF THE ASSESSEE FOR RS. 75,85,548/- AND RS. 25,00,000/-. A .O. ALSO REJECTED THE CLAIM OF THE ASSESSEE QUA CAPITAL GAIN OF RS. 7 6,450/- CLAIMED AS DEDUCTION FROM THE SALE OF GOLD JEWELLERY OF RS. 9, 43,600/- U/S 54F ON THE GROUND THAT THE ASSESSEE WAS REQUIRED TO PUR CHASE A RESIDENTIAL PROPERTY OR CONSTRUCT A RESIDENTIAL HOU SE WITHIN ONE YEAR AND THREE YEARS RESPECTIVELY AND THEREBY ASSESSED T HE TOTAL INCOME OF ASSESSEE AT RS. 1,06,70,645/-. 3. ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) BY FILING AN APPEAL WHO HAS DISMISSED THE SAME. BEING AGGRIEVED ASSESSEE HAS COME BEFORE TRIBUNAL BY WAY OF FILING OF PRESENT AP PEAL. 4 ITA.NO. 5568/DEL./2015 DR. JASVIR SINGH RANA VS. IT O 4. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE S OF THE PARTIES TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. UNDISPUTEDLY ASSESSEE HAS RECEIVED AN AMOUNT OF RS. 1.62 CRORES ON ACCOUNT OF SALE OF RESIDENTIAL PROPERTY B EARING NO.1-B, PUSA ROAD, NEW DELHI ON WHICH CAPITAL GAIN COMES TO RS.9 9,57,265/-; THAT THE ASSESSEE INVESTED RS. 75,85,818/- U/S 54 OF THE ACT AND DEPOSITED CAPITAL GAIN OF RS. 25 LAC ; THAT THE ASS ESSEE SOLD GOLD JEWELRY OF RS. 9,43,600/- AFTER CLAIMING DEDUCTION OF INDEXED COST AND HAS DECLARED CAPITAL GAIN OF RS. 76,450/- CLAIM ED U/S 54 OF THE ACT; THAT THE ASSESSEE WAS ALLOTTED A PLOT NO. 0030 AT MAIN STREET NO. 05 IN UNITECH GOLF AND COUNTRY CLUB BY MAKING PAYME NT OF RS.75,85,548/-; THAT ASSESSEE HAS INVESTED THE BALA NCE AMOUNT OF RS. 25 LAC IN THE CAPITAL ACCOUNT SCHEME. 6. FROM THE UNDISPUTED FACTS, AND THE ORDER PASSED BY THE REVENUE AUTHORITIES BELOW THE FIRST QUESTION ARISES FOR DETERMINATION IN THIS CASE IS 5 ITA.NO. 5568/DEL./2015 DR. JASVIR SINGH RANA VS. IT O AS TO WHETHER A.O./CIT(A) HAVE ERRED IN COMPUTING IN LONG TERM GAIN OF RS. 99,57,265/- BY NOT GRANTING EXEMP TION U/S 54 AND 54F OF THE ACT ON THE AMOUNT INVESTED FOR THE P URCHASE OF RESIDENTIAL PLOT AND DEPOSITS MADE UNDER CAPITAL GA IN SCHEME IN THE BANK. 7. PERUSAL OF THE AGREEMENT ENTERED INTO BETWEEN TH E ASSESSEE AND M/S. UNITECH ACACIA PROJECTS PVT. LTD. GOES TO PROVE THAT THE POSSESSION OF THE PLOT WAS TO BE HANDED OVER TO THE ASSESSEE WITHIN A PERIOD OF SIX MONTHS. REVENUE AUTHORITIES BELOW. A.O./LD. CIT(A) HAVE DENIED THE BENEFIT OF SECTION 54 OF THE ACT TO THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAS FAILED TO PURCHASE OR CONSTRUCT RESIDENTIAL HOUSE WITHIN PERIOD OF ONE YEAR AND THE RE YEARS AS THE CASE MAY BE. BENEFIT OF SECTION 54F IS DENIED ON TH E GROUND THAT THE AMOUNT OF CAPITAL GAIN REMAINED UNUTILIZED. 8. ASSESEES CONTENTION BEFORE THE BENCH IS HE HAS MADE ALL OUT EFFORTS TO GET THE POSSESSION OF THE PLOT IN QUESTI ON BY APPROACHING THE HON'BLE HIGH COURT OF ALLAHABAD ALONGWITH 84 OT HER PETITIONER BY FILING A WRIT PETITION AND HE HAS ALSO FILED A COMP LAINT BEFORE THE 6 ITA.NO. 5568/DEL./2015 DR. JASVIR SINGH RANA VS. IT O HON'BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMIS SION AT NEW DELHI. THIS CONTENTION OF THE ASSESSEE IS PROVED FR OM THE DOCUMENTS AVAILABLE AT PAGE 16 TO 18 OF THE PAPER BOOK. 9. ASSESSEE ALSO BROUGHT ON RECORD A LETTER DATED 1 1.1.2011 WRITTEN BY M/S. UNITECH HI-TECH DEVELOPERS LTD. OFF ERING TRANSFER OF THE PLOT ON SUB LEASE BASIS IN ACCORDANCE WITH SANC TION AND APPROVAL ACCORDED BY NOIDA AUTHORITIES. 10. FROM THE LETTER DATED 25.4.2016 ISSUED BY UNITE CH GOLF AND COUNTRY CLUB AND PROVISIONAL POSSESSION CERTIFICAT E DULY SIGNED BY PROJECT ENGINEER OF THE DEVELOPER AT PAGE 20A AND 2 0B OF THE PAPER IT IS PROVED THAT PROVISIONAL POSSESSION OF THE PL OT IN QUESTION HAS BEEN DELIVERED TO THE ASSESSEE. 11. WHEN IT IS NOT IN DISPUTE THAT THE ASSESSEE HAS PAID AN AMOUNT OF RS. 75,85,818/- WHICH IS 95% OF THE TOTAL SALE C ONSIDERATION FOR PURCHASE OF THE PROPERTY TO M/S. UNITECH HIGH-TECH DEVELOPER (RS. 7,41,250/- ON 20.1.2011 AND RS. 68,44,298/- ON 23.3.2011) THROUGH BANKING CHANNEL AND ALSO DEPOSITED RS. 25,0 0,000/- UNDER CAPITAL GAIN THE RIGHT IN PERSONAM WAS CREATED IN F AVOUR OF THE 7 ITA.NO. 5568/DEL./2015 DR. JASVIR SINGH RANA VS. IT O ASSESSEE FROM THE DATE OF ENTERING INTO AN AGREEMEN T DATED 11.1.2011 IN FAVOUR OF THE ASSESSEE. IT DOES NOT MA TTER IF THE REGISTRATION OF THE SALE DEED HAS NOT BEEN MADE IN FAVOUR OF THE ASSESSEE BECAUSE TRANSFER OF THE PROPERTY IS TO BE TAKEN FROM THE DATE OF AGREEMENT IN FAVOUR OF THE ASSESSEE. MOREOV ER THE ASSESSEE HAS MADE FRANTIC EFFORTS TO TAKE THE POSSESSION OF THE PROPERTY FROM THE DEVELOPER BY APPROACHING HON'BLE HIGH COURT OF ALLAHABAD AS WELL AS NATIONAL CONSUMER DISPUTES REDRESSAL COMMIS SION. 12. HON'BLE DELHI HIGH COURT IN CASE CITED AS BALRAJ V. COMMISSIONER OF INCOME-TAX [2002] 254 ITR 22 (DEL) HELD THAT FOR THE PURPOSE OF ATTRACTING THE PROVISIONS OF SECTION 54 OF THE INCOME-TAX ACT, IT IS NOT NECESSARY THAT THE ASSESS EE SHOULD BECOME THE OWNER OF THE PROPERTY AS REGISTRATION OF THE DO CUMENT WAS NOT IMPERATIVE. SO ONCE THE ASSESSEE HAS PAID SUBSTANTI AL AMOUNT TO PURCHASE THE PROPERTY WITHIN A PERIOD OF ONE YEAR HE HAS BECOME ENTITLED FOR EXEMPTION U/S 54 OF THE ACT. 13. SIMILAR VIEW HAS BEEN TAKEN BY THE HON'BLE DEL HI HIGH COURT IN THE CASE CITED AS CIT VS. R.L. SOOD 245 ITR 727 HELD THAT WHEN THE AGREEMENT OF PURCHASE CONSIDERATION FOR A NEW F LAT HAS BEEN 8 ITA.NO. 5568/DEL./2015 DR. JASVIR SINGH RANA VS. IT O MADE WITHIN ONE YEAR OF THE SALE OF OLD PROPERTY AN D NOW ACTUAL POSSESSION OF THE NEW PROPERTY WAS DELIVERED AFTER ONE YEAR THE BENEFIT OF SECTION 54 IS AVAILABLE TO THE ASSESSEE. 14. SO FAR AS QUESTION OF NOT HAVING UTILIZED AN A MOUNT OF RS. 25 LACS DEPOSITED IN CAPITAL GAIN ACCOUNT BY THE ASSES SEE IS CONCERNED THE SAME SHALL BE CHARGED TO TAX IN ACCORDANCE WITH PROVISO TO SECTION 54(2) OF THE ACT. 15. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE, QUEST ION FRAMED AS ANSWERED IN FAVOUR OF THE ASSESSEE AND CONSEQUENTLY APPEAL FILED BY THE ASSESSEE IS HEREBY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND SEPTEMBER, 2017. SD/- SD/- (B.P. JAIN) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DELHI, DATED 22.9.2017 COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT G BENCH, DELHI 6. GUARD FILE. 9 ITA.NO. 5568/DEL./2015 DR. JASVIR SINGH RANA VS. IT O