Labhuben Ramnikbhai Patel, Ahmedabad V. The ITO, Ward 3(3)(3), Ahmedabad

ITA 587/AHD/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1409 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-06-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 07-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B P K
• Keywords: Capital asset; Share purchase agreement; Additional evidence
• Section: 54F

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , , BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER ./ I.T.A. NO.587/AHD/2016 ( / ASSESSMENT YEAR : 2011-12) LABHUBEN RAMNIKBHAI PATEL 34, UGANDA SOCIETY GATE NO.2 NR.SARTHI ROW HOUSE NR.SUBHASH CHOWK GURUKUL ROAD MEMNAGAR,AHMEDABAD-380 052 / VS. THE INCOME TAX OFFICER WARD-3(3)(3) AHMEDABAD $ ./ ./ PAN/GIR NO. : ABCPP 2242 C ( $& / APPELLANT ) .. ( '($& / RESPONDENT ) $&) / APPELLANT BY : SHRI PRITESH SHAH, AR '($&*) / RESPONDENT BY : SHRI B.P.K. PANDA, SR.DR +* / DATE OF HEARING 01/06/2016 ,-./* / DATE OF PRONOUNCEMENT 09/06/2016 / O R D E R PER SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-13, AHMEDABAD DATED 21/01/2016 FOR THE ASSESSMENT YEAR 2011-12. ITA NO.587/AHD/ 2016 LABHUBEN R. PATEL VS. ITO ASST.YEAR 2011-12 - 2 - 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- 2.1. ASSESSEE IS AN INDIVIDUAL STATED TO BE HAVING INCOME FROM CAPITAL GAINS AND INCOME FROM OTHER SOURCES. ASSESSEE FILE D HER RETURN OF INCOME FOR ASSESSMENT YEAR 2011-12 ON 26/07/2011 DE CLARING TOTAL INCOME OF RS.1,44,029/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER ASSESSMENT WAS FRAMED U/S.143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT') VIDE OR DER DATED 06/12/2013 AND THE TAXABLE INCOME WAS DETERMINED AT RS.8,11,26 0/- AND AGRICULTURAL INCOME AT RS.1,44,030/-. AGGRIEVED BY THE ORDER OF THE AO, ASSESSEE CARRIED THE MATTER BEFORE THE LD.CIT(A), WHO VIDE O RDER DATED 21/01/2016 (IN APPEAL NO. CIT(A)-13/AHD/51/204-15) DISMISSED THE APPEAL OF THE ASSESSEE. AGGRIEVED BY THE ORDER OF THE LD.CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED FOLLOWING GROUND:- 1. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING THE DISALLOWANCE OF EXEMPTION OF RS.6,67,239/- CLAIMED UNDER SECTION 54F OF THE INCOME TAX ACT, 1961, SUCH EXEMPTION IS REQU ESTED TO BE ALLOWED. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO NOTICED THAT THE ASSESSEE HAS SHOWN CAPITAL GAIN ON SALE OF IMMOVABL E PROPERTY AMOUNTING TO RS.6,67,229/- WHICH WAS CLAIMED AS EXE MPT U/S.54F OF THE ACT ON THE GROUND THAT ASSESSEE HAD BOOKED A FLAT . AO THEREAFTER ASKED THE ASSESSEE TO FURNISH THE DETAILS WITH RESPECT TO THE COMPLIANCE OF PROVISIONS OF SECTION 54F OF THE ACT. AO NOTED THA T ASSESSEE DID NOT FURNISH ANY DETAILS THEREOF. HE THEREFORE REJECTED THE CLAIM OF DEDUCTION ITA NO.587/AHD/ 2016 LABHUBEN R. PATEL VS. ITO ASST.YEAR 2011-12 - 3 - OF RS.6,67,239/- CLAIMED BY ASSESSEE U/S.54F OF THE ACT. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE THE LD.CIT(A) WHO DISMISSED THE APPEAL BY HOLDING AS UNDER:- FINDINGS: 6. I HAVE PERUSED THE ASSESSMENT ORDER, THE REMAND REPORT AND THE COMMENTS THEREAFTER BY THE APPELLANT. I FIND THAT CERTAIN DOCUMENTS, LISTED BY THE A.O. IN THE REMAND REPORT, HAVE STILL NOT BEEN FURNISHED BEFORE THE A.O. OR BEFORE ME. THE FACT OF NON-FILI NG OF SUCH DOCUMENTS AS STATED IN THE REMAND REPORT HAS BEEN FAIRLY ADMI TTED BY THE LEARNED COUNSEL. SINCE THESE DOCUMENTS, IN MY VIEW ARE CRU CIAL IN DETERMINING THE ELIGIBILITY OF BENEFIT U/S.54F, I AM OF THE VIE W THAT THE APPELLANT HAS NOT ESTABLISHED HER CLAIM WITHOUT DOUBT. THE GROUN D RAISED BY THE APPELLANT IS THEREFORE, DISMISSED. 3.1. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US. 4. BEFORE US, LD.AR REITERATED THE SUBMISSIONS MA DE BEFORE THE AO AND FURTHER SUBMITTED THAT ASSESSEE HAS SOLD LAND OF RS .7,14,802/- AND RS.7,15,000/- WAS INVESTED IN THE PURCHASE OF HOUSE . HE SUBMITTED THAT ASSESSEE HAD MADE THE PAYMENT TO THE BUILDER AND TH E BUILDER HAD ALSO ISSUED ALLOTMENT LETTER TO THE ASSESSEE. HE FURT HER SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE COUL D NOT SUBMIT THE DOCUMENTS AS THE FOLDER CONTAINING THE REQUIRED DOC UMENTS GOT MISPLACED AT THE END OF ASSESSEE BUT HOWEVER THOSE DOCUMENTS WERE SUBMITTED BEFORE THE LD.CIT(A) BY WAY OF ADDITIONAL EVIDENCES , THE ADDITIONAL EVIDENCES BEING ALLOTMENT LETTER ISSUED BY THE BUIL DER, WORK COMPLETION CERTIFICATE, BANK STATEMENT EVIDENCING THE PAYMENT BY CHEQUE TOWARDS ITA NO.587/AHD/ 2016 LABHUBEN R. PATEL VS. ITO ASST.YEAR 2011-12 - 4 - PURCHASE OF HOUSE. HE SUBMITTED THAT THE LD.CIT(A) WITHOUT CONSIDERING THE ADDITIONAL EVIDENCES THAT WERE SUBMITTED, HAD DISMISSED THE APPEAL OF THE ASSESSEE. HE THEREFORE SUBMITTED THAT THE A SSESSEE BE GIVEN ONE MORE OPPORTUNITY AND, THEREFORE, THE MATTER MAY BE REMITTED BACK TO THE FILE OF AO WITH NECESSARY INSTRUCTIONS. LD.DR, ON THE OTHER HAND, SUPPORTED THE ORDERS OF AO AND LD.CIT(A) AND SUBMIT TED THAT THE ESSENTIAL CONDITION FOR CLAIMING DEDUCTION U/S.54F OF THE ACT IS THAT THE ASSESSEE SHOULD EITHER WITHIN ONE YEAR BEFORE OR TW O YEARS AFTER THE DATE ON WHICH THE TRANSFER HAS TAKEN PLACE, PURCHASED OR WITHIN A PERIOD OF THREE YEARS AFTER THAT DATE CONSTRUCTED ONE RESIDEN TIAL HOUSE. IN THE CASE OF ASSESSEE, NO MATERIAL HAS BEEN PLACED ON RECORD WHICH COULD SHOW THE DATE ON WHICH THE CAPITAL ASSET WAS SOLD, BECA USE THE DATE OF SALE IS VERY NECESSARY TO DETERMINE THE ELIGIBILITY FOR CLA IMING EXEMPTION U/S.54F OF THE ACT. HE FURTHER SUBMITTED THAT EVEN BEFORE THE TRIBUNAL, ASSESSEE HAS NOT FURNISHED ANY EVIDENCE TO DEMONSTR ATE THE DATE OF SALE OF ASSET NOR HAS FURNISHED ANY EVIDENCE AS TO WHETHER THE FLAT WHICH THE ASSESSEE HAS STATED TO HAVE PURCHASED IS COMPLETE A ND THAT THE ASSESSEE IS THE OWNER. HE THEREFORE SUBMITTED THAT NO INTERFER ENCE TO THE ORDER OF AO IS CALLED FOR. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO DE NIAL OF CLAIM OF DEDUCTION U/S.54F OF THE ACT. BEFORE US, IT IS ASS ESSEES SUBMISSION THAT ITA NO.587/AHD/ 2016 LABHUBEN R. PATEL VS. ITO ASST.YEAR 2011-12 - 5 - THE ADDITIONAL EVIDENCES THAT WERE FURNISHED BEFORE THE LD.CIT(A) WHICH GOES TO THE ROOT OF THE MATTER OF THE CLAIM OF ASSE SSEE FOR DEDUCTION U/S.54F OF THE ACT HAVE BEEN IGNORED BY HIM. WE FURTHER FIND THAT BEFORE US THAT THOUGH THE LD.AR OF ASSESSEE HAS VE RBALLY SUBMITTED THAT ASSESSEE HAS COMPLIED WITH THE ESSENTIAL CONDITIONS FOR CLAIMING THE DEDUCTION U/S.54F OF THE ACT BUT HAS NOT FURNISHE D ANY PROOF LIKE SALE DEED OF SALE OF PROPERTY, SHARE CERTIFICATE OF THE SOCIETY IN WHICH ASSESSEE HAS PURCHASED THE FLAT, COPY OF PURCHASE AGREEMENT OF THE FLAT FOR WHICH SHE HAS CLAIMED DEDUCTION UNDER SECTION 54F OF THE ACT. IN VIEW OF THESE FACTS AND IN THE INTEREST OF JUSTICE, WE ARE OF THE VIEW THAT THE MATTER NEEDS TO BE RE-EXAMINED AT THE END OF THE AO. WE T HEREFORE SET ASIDE THE ISSUE BACK TO THE FILE OF AO TO EXAMINE THE ADDITIO NAL EVIDENCES FURNISHED BY THE ASSESSEE LIKE THE PURCHASE AGREEME NT FOR PURCHASE OF FLAT AND OTHER EVIDENCES WHICH COULD DEMONSTRATE THAT TH E ASSESSEE HAS PURCHASED THE FLAT AND HAS COMPLIED WITH THE CONDIT IONS STIPULATED FOR CLAIMING DEDUCTION U/S.54F OF THE ACT. THE AO SHAL L THEREAFTER AFTER TAKING INTO ACCOUNT THE EVIDENCES, RE-DECIDE THE IS SUE IN ACCORDANCE WITH LAW. ASSESSEE IS ALSO DIRECTED TO PROMPTLY SUBMIT ALL THE DETAILS CALLED FOR BY THE AO. THUS, GROUND OF ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ITA NO.587/AHD/ 2016 LABHUBEN R. PATEL VS. ITO ASST.YEAR 2011-12 - 6 - 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES THIS ORDER PRONOUNCED IN OPEN COURT ON 09/06/2016 SD/- SD/- () () (RAJPAL YADAV) ( ANIL CHATURVEDI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 09/ 06 /2016 3..,.../ T.C. NAIR, SR. PS !'#$%$' / COPY OF THE ORDER FORWARDED TO : 1. $& / THE APPELLANT 2. '($& / THE RESPONDENT. 3. 456 7 / CONCERNED CIT 4. 7 ( ) / THE CIT(A)-13, AHMEDABAD 5. 89:'56 , 56/ , 4 / DR, ITAT, AHMEDABAD 6. :<=+ / GUARD FILE. / BY ORDER, (8' //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 1.6.16 (DICTATION-PAD 10 P AGES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 7.6.16 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.9.6.16 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 9.6.16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER