Niranjan Hathising Shah, Ahmedabad V. ITO, Int.Tax-1, Ahmedabad

ITA 601/AHD/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6236 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 08-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M K PATEL
• Keywords: Sale consideration of property below Jantri Value; Revision of order; Transfer pricing; Cost of acquisition; Benefit of exemption; Set aside
• Section: 143(3); 50C; 54F; 64; 148; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER) ( THROUGH VIRTUAL COURT ) ITA. NO: 601/AHD/2019 (ASSESSMENT YEAR: 2011-12) NIRANJAN HATHISING SHAH C/O. SHAH ENTERPRISE, DENA BANK BUILDING, PRITAMNAGAR, AHMEDABAD- 380006 V/S INCOME TAX OFFICER INTL. TAXN-1, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: BLRPS6511B APPELLANT BY : SHRI M.K. PATEL & ARTI N. SHAH, A.R. RESPONDENT BY : SHRI VIDHYUT TRIVEDI, SR.D.R. ( )/ ORDER DATE OF HEARING : 26 -08-2020 DATE OF PRONOUNCEMENT : 07 -09-2020 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-13, AHMEDABAD DATED 14.03.2019 PERTAINING TO A.Y. 2011-12 AND FOLLOWING GROUNDS HAVE BEEN TAKEN: ITA NO. 601/AHD/2019 . A.Y. 2011-12 2 1. THE LD. CIT(A)-13, AHMEDABAD HAS ERRED IN LAW AND ON FACTS OF THE CASE IN CONFIRMING THE DISALLOWANCE OF CLAIM U/S. 54F OF RS. 12,12,616/- MADE BY THE ASSESSING OFFICER. 2. BRIEF FACTS OF THE CASE ARE THAT APPELLANT IS A NON RESIDENT INDIAN. IN THIS CASE, THE ASSESSE DID NOT FILE HIS RETURN OF INCOME. THEREAFTER, THE CASE WAS REOPENED AND ASSESSMENT U/S 143(3) R.W.S 147 OF THE ACT WAS FINALIZED DETERMINING THE TOTAL INCOME AT RS. 8,14,458/- AS AGAINST INCOME OF RS.4,89,240/- DISCLOSED IN THE RETURN FILED IN RESPONSE TO NOTICE U/S 148 OF THE ACT. SUBSEQUENTLY, AN ORDER U/S 263 OF THE ACT WAS PASSED BY THE LD. CIT (INTERNATIONAL TAXATION & TRANSFER PRICING) HOLDING THE ORDER PASSED U/S 143(3) R.W.S. 147 OF THE ACT AS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE AND PASSED WITHOUT APPLICATION OF MIND AND PROPER INQUIRY WITHOUT VERIFICATION OF FACTS. ACCORDINGLY, LD. CIT SET ASIDE THE MATTER TO THE FILE OF THE LD. A.O. WITH THE DIRECTION TO MAKE FRESH ASSESSMENT. 3. DURING THE FINANCIAL YEAR 2010-11, THE ASSESSE ALONG WITH FIVE OTHERS HAVE JOINTLY SOLD LAND SITUATED AT MANIPUR OF SANAND TALUKA 1/6 TH SHARE ADMEASURING 29239 SQ. MTRS. FOR A CONSIDERATION OF RS.1,12,00,000/- AND STAMP DUTY OF RS. 6,77,800/- WAS PAID ON THE SAID TRANSACTION. THE ASSESSE HAS FILED HIS RETURN OF INCOME ONLY IN RESPONSE TO NOTICE U/S 148 OF THE ACT DISCLOSING INCOME FROM CAPITAL GAIN OF RS. NIL AFTER CLAIMING EXEMPTION U/S 54F OF THE ACT TO THE EXTENT OF RS. 12,12,616/- AND INCOME FROM OTHER SOURCES RS. 4,89,237/-. IN THE RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S 148 OF THE ACT, THE ASSESSEE HAS SHOWN CONSIDERATION OF SALE OF LAND AT RS. 18,70,000/- AND AFTER DEDUCTING INDEXED COST OF ACQUISITION, THE ASSESSE HAS WORKED OUT THE LONG TERM CAPITAL GAIN OF RS. 12,12,616/-. ITA NO. 601/AHD/2019 . A.Y. 2011-12 3 4. AGAINST WHICH ASSESSE HAS CLAIMED EXEMPTION U/S 54F OF THE ACT TO THE EXTENT OF RS. 12,12,616/- IN THE ORDER PASSED U/S 143(3) R.W.S. 147 OF THE ACT ON 28.01.2016, THE PROVISION OF SECTION 50C OF THE ACT WAS INVOKED AND LONG TERM CAPITAL GAIN WAS WORKED OUT AT RS. 17,22,572/- AFTER ALLOWING EXEMPTION U/S 54F OF THE ACT OF RS. 13,97,350/- TAXABLE LONG TERM CAPITAL GAIN WAS WORKED OUT AT RS. 3,25,221/-. 5. DURING THE ASSESSMENT PROCEEDINGS, ASSESSE SUBMITTED THAT SHE HAS MADE PAYMENT ON 08.03.2011 AND SALE DEED WAS EXECUTED ON 30.03.2009 AND REQUESTED LD. A.O. THAT BENEFIT OF SECTION 54F SHOULD BE GIVEN TO THE ASSESSE. 6. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE RELEVANT RECORD. NOW QUESTION BEFORE US IS THAT WHETHER BENEFIT OF SECTION 54F TO BE GIVEN TO THE APPELLANT OR NOT BECAUSE LOWER AUTHORITIES CONTENTION IS THAT POSSESSION AND SALE DEED WAS NOT EXECUTED WITHIN THE PERIOD OF THREE YEARS FROM THE DATE OF SOLD PROPERTY AGAINST WHICH APPELLANT IS CLAIMING THE BENEFIT OF SECTION 54F IN THIS CASE PROPERTY WAS PURCHASED BY THE ASSESSE ON 29/09/1996 AT RS. 2,82,000/- AND ON 28/02/2011 SAME PROPERTY WAS SOLD BY THE ASSESSE AND GOT HIS 1/6 TH SHARE AT RS. 18,70,000/- ON 08/03/2011, APPELLANT INVESTED THE AMOUNT FOR PURCHASE OF BUNGALOW NO. 64 AT SHIVALIK BUT SALE DEED WAS EXECUTED ON 30/03/2019. THUS APPELLANT MADE PAYMENT FOR PURCHASE OF HOUSE WITHIN THREE YEARS FROM THE DATE OF SALE MANIPUR OF SANAND TALUKA PROPERTY. 7. LD. A.R. CITED AN ORDER OF CO-ORDINATE BENCH IN THE CASE OF CO-OWNER IN THE SAME PROPERTY NAMELY SHRI RUPANDE NARESH SHAH VS. ITO IN ITA NO. 1968/AHD/2018, MATTER WAS DECIDED IN FAVOUR OF ONE OF THE CO-OWNER WITH FOLLOWING OBSERVATION: ITA NO. 601/AHD/2019 . A.Y. 2011-12 4 16. THE 1 ST ISSUE RAISED BY THE ASSESSE IS THAT THE LEARNED CIT(A) ERRED IS CONFIRMING THE ORDER OF THE A.O. BY DENYING THE BENEFIT OF EXEMPTION UNDER SECTION 54F OF THE ACT FOR RS. 13,46,203.00 ONLY. 17. AT THE OUTSET WE NOTE THAT THE IDENTICAL ISSUE HAS BEEN DECIDED BY US IN FAVOUR OF ASSESSEE IN THE CASE OF NARESH HATHSING SHAH IN ITA NO. 1967/AHD/2018 VIDE PARAGRAPH NO. 8 OF THIS ORDER. FOR THE DETAILED DISCUSSION, PLEASE REFER THE RELEVANT PARAGRAPH. RESPECTFULLY FOLLOWING THE SAME, WE ALLOW THE GROUND OF APPEAL OF THE ASSESSE. 8. SINCE MATTER HAS ALREADY BEEN DECIDED IN FAVOUR OF ONE OF THE CO-OWNER IN THE SAID PROPERTY. THUS IN PARITY WITH THE SAID ORDER, WE ALLOW THE APPEAL OF THE ASSESSE. 9. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 07- 09- 2020 SD/- SD/- (AMARJIT SINGH) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 07/09/2020 RAJESH COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD