Sameer Vithalrao Ghanwat, Pune V. Income-tax Officer, Ward - 12(1), Pune

ITA 645/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6742 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 10-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Cost of acquisition
• Section: 143(3); 54F; 54; 139

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI , AM . / ITA NO. 645 /P U N/201 8 / ASSESSMENT YEAR : 20 1 3 - 1 4 SHRI SAMEER VITHALRAO GHANWAT, 722/26, LAXMI PARK COLONY, NAVI PETH, PUNE 411030 . / APPELLANT PAN: AKPPG0286P VS. THE INCOME TAX OFFICER, WAD 12(1), P UNE . / RESPONDENT / APPELLANT BY : NONE / RESPONDENT BY : SHRI RAJESH GAWALI / DATE OF HEARING : 02 . 0 1 .201 9 / DATE OF PRONOUNCEMENT: 21 . 0 1 .201 9 / ORDER PER SUSHMA CHOWLA, J M : THE APPEAL FILED BY ASSESSEE IS AGAINST ORDER OF CIT (A), PUNE - 5, PUNE , DATED 0 4 . 12 .201 7 RELATING TO ASSESSMENT YEAR 20 1 3 - 1 4 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME - TAX ACT , 1961 (IN SHORT THE ACT) . 2. DESPITE SERVICE OF NOTICE, NONE APPEARED ON BEHALF OF ASSESSEE NOR ANY APPLICATION WAS MOVED FOR ADJOURNMENT. HOWEVER, BECAUSE OF THE ISSUE ITA NO. 645 /P U N/201 8 SAMEER V. GHANWAT 2 INVOLVE D , WE PROCEED TO DECIDE THE PRESENT APPEAL AFTER HEARING THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE. 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS: 1 . ERRED IN CONFIRMING THE COST OF ACQUISITION OF THE LAND SOLD BY THE APPELLANT AS ON 1/4/1981 AT R S.10,360/ - AS AGAINST RS.3,59,648/ - CLAIMED BY THE APPELLANT. 2 . ERRED IN CONFIRMING THE DEDUCTION CLAIMED U/S 54F OF THE ACT AT RS.33,48,003/ - AS AGAINST RS.45,41,736/ - CLAIMED BY THE APPELLANT. 3 . ERRED IN PASSING THE EX - PARTE ORDER BY NOT GRANTING THE APPEL LANT SUFFICIENT OPPORTUNITY OF BEING HEARD. IN VIEW OF THE ABOVE GROUNDS AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE APPELLANT PRAYS YOUR HONOUR TO ALLOW THE APPEAL AND SET ASIDE THE ORDERS PASSED BY THE LOWER AUTHORITIES, BEING NOT JUSTIFIED IN LAW AND PASS ANY OTHER ORDER WHICH YOUR HONOURS MAY DEEMED FIT IN THE INTEREST OF JUSTICE. 4. THE FIRST ISSUE RAISED IS AGAINST COST OF ACQUISITION OF THE PROPERTY AS ON 01.04.1981. 5. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE HAD FILED ORIGINAL RETURN OF INCOME OF INCOME ON 30.07.2013 DECLARING INCOME AT 2,42,617/ - . FOR THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD SOLD HIS LAND AT BALEWADI, TAL. HAVELI, PUNE DIST. ON 27.09.2012. THE ASSESSEE HAD SHOWN THE COST OF ACQUISITION OF THE SAID PROPERTY AS ON 01.04.1981 AT 3,59,648/ - , WHEREAS THE ASSESSING OFFICER HAD ADOPTED AT 10,360/ - . 6. THE PERUSAL OF ASSESSMENT ORDER REFLECTS THAT THE ASSESSEE HAD ADMITTED BEFORE THE ASSESSING OFFICER TO ADOPT THE COST OF ACQUISITION AT 10,360/ - . IN VIEW OF THE ADMISSION OF ASSESSEE, THERE IS NO MERIT IN THE GROUND OF APPEAL RAISED BY ASSESSEE IN THIS REGARD. HENCE, THE SAME IS DISMISSED. ITA NO. 645 /P U N/201 8 SAMEER V. GHANWAT 3 7. NOW, COMING TO THE CLAIM OF DEDUCTION UNDER SECTION 54F OF THE ACT AT 33,48,003/ - AS AGAINST 45,41,736/ - . 8. BRIEF FACTS RELATING TO THE ISSUE ARE THAT THE ASSESSEE EXPLAINED THAT HE HAD PURCHASED A NEW RESIDENTIAL PROPERTY JOINTLY WITH HIS WIFE ON 04.03.2013 FOR A TOTAL CONSIDERATION OF 53,85,000/ - , OUT OF WHICH AN AMOUNT OF 33,85,130/ - HAS BEEN CLAIMED AS DEDUCTION UNDER SECTION 54 OF THE ACT BY THE ASSESSEE AN D THE BALANCE HAS BEEN CLAIMED AS DEDUCTION UNDER SECTION 54F OF THE ACT BY HIS WIFE. FURTHER, THE ASSESSEE HAD ALSO CLAIMED DEDUCTION OF 11,56,606/ - UNDER SECTION 54F OF THE ACT ON ACCOUNT OF INVESTMENT MADE IN A SPECIFIED BANK/INSTITUTION. THUS, THE TOTAL DEDUCTION CLAIMED UNDER SECTION 54F OF THE ACT BY THE ASSESSEE WAS AT 45,41,736/ - . HOWEVER, THE ASSESSING OFFICER ON VERIFICATION OF THE DETAILS SUBMITTED DURING THE COURSE OF ASSESSMENT PROCEEDINGS, NOTED THAT THE ENTIRE CLAIM MADE BY ASSESSEE CO ULD NOT BE ALLOWED IN VIEW OF THE PROVISIONS OF SECTION 54F(1)(B) AND 54F(4) OF THE ACT AND THE PROVISO THEREOF. IN THE INSTANT CASE, THE NET CONSIDERATION OF THE ORIGINAL ASSET WAS AT 80,48,041/ - I.E. AFTER CONSIDERING EXPENDITURE BY WAY OF COST OF SEL LING, WHEREAS THE COST OF NET ASSET WAS ONLY 33,85,130/ - AS CLAIMED BY THE ASSESSEE IN THE COMPUTATION. THUS, THE PROPORTIONATE AMOUNT OF DEDUCTION UNDER SECTION 54F OF THE ACT ALLOWABLE WOULD WORK OUT TO 33,48,003/ - [33,85,130/8048041X7959774] . FURT HER, THE ASSESSEE HAS ALSO CLAIMED AN AMOUNT OF 11,56,606/ - AS DEDUCTION UNDER SECTION 54F OF THE ACT ON ACCOUNT OF DEPOSIT TO AN ACCOUNT OF SPECIFIED BANK OR INSTITUTION. AS PER THE PROVISIONS OF SECTION 54F(4) OF THE ACT, THE AMOUNT OF NET CONSIDERATI ON WHICH WAS NOT APPROPRIATED BY THE ASSESSEE TOWARDS THE PURCHASE OF NEW ASSET MADE WITHIN ONE YEAR BEFORE THE DATE ON WHICH THE TRANSFER OF THE ORIGINAL ASSET TOOK PLACE, OR WHICH WAS NOT UTILIZED BY HIM FOR THE PURCHASE OR CONSTRUCTION OF THE NEW ASSET BEFORE THE DATE OF FURNISHING THE RETURN OF INCOME UNDER SECTION 139 OF ITA NO. 645 /P U N/201 8 SAMEER V. GHANWAT 4 THE ACT, SHALL BE DEPOSITED BY HIM BEFORE FURNISHING SUCH RETURN . S UCH DEPOSITS BEING MADE IN ANY CASE NOT LATER THAN THE DUE DATE APPLICABLE IN THE CASE OF THE ASSESSEE FOR FURNISHIN G THE RETURN UNDER SUB SECTION (1) OF SECTION 139 OF THE ACT IN AN ACCOUNT IN ANY BANK OR INSTITUTION AS MAY BE SPECIFIED. IN THE INSTANT CASE, THE SALE OF THE ORIGINAL ASSET TOOK PLACE ON 27.09.2012 AND THE DUE DATE FOR FURNISHING THE RETURN UNDER SECTIO N 139(1) OF THE ACT WAS 31.07.2013 WHEREAS THE ASSESSEE HAS DEPOSITED THE AMOUNT INTO THE AFORESAID ACCOUNT ON 24.07. 2014 I.E. MORE THAN ONE YEAR BEYOND THE DUE DATE FOR FURNISHING THE RETURN. THUS, THE AUTHORITIES BELOW HELD THAT THE DEDUCTION CLAIMED IN RESPECT OF THIS AMOUNT COULD NOT BE ALLOWED. 9. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT(A). 10. DESPITE SERVICE OF NOTICE, NONE APPEARED ON BEHALF OF ASSESSEE. HOWEVER, WE FIND THAT THE ISSUE STANDS COVERED AGAINST THE ASSESSEE BY THE ORDER OF THE HON B LE BOMBAY HIGH COURT IN THE CASE OF HUMAYUN SULEMAN MERCHANT VS. CCIT (2016) 73 TAXMANN.COM 2 (BOM.). 11. FURTHER, T HE SAID PROPOSITION LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN HUMAYUN SULEMAN MERCHANT VS. CCIT (SUPRA) HAS BEEN APPLIED B Y THE PUNE BENCH OF THE TRIBUNAL (WHERE JUDICIAL MEMBER IS A PARTY) IN ITA NO.923/PUN/2015 RELATING TO ASSESSMENT YEAR 2009 - 10 VIDE ORDER DATED 20 . 12 . 2017 . VIDE PARA NO.7 OF THE ORDER DATED 20 . 12 . 2017, THE CLAIM OF DEDUCTION UNDER SECTION 54 OF THE ACT W AS DENIED TO THE ASSESSEE AS HE HAD NOT DEPOSITED THE AMOUNT IN THE CAPITAL GAINS SCHEME ACCOUNT BY THE DUE DATE OF FILING THE RETURN OF INCOME. ITA NO. 645 /P U N/201 8 SAMEER V. GHANWAT 5 12. THE ISSUE ARISING IN THE PRESENT APPEAL IS IDENTICAL TO THE ISSUE BE FORE THE TRIBUNAL AND FOLLOWING THE SAME PARITY OF REASONING, WE HOLD THAT THE ASSESSEE IS NOT ENTITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 54F OF THE ACT AS THE ASSESSEE HAS FAILED TO DEPOSIT THE UNUTILIZED AMOUNT OF CAPITAL GAINS IN THE CAPITAL GAINS SCHEME ACCOUNT BY THE DATE OF FILIN G OF RETURN OF INCOME. SINCE THIS ISSUE IS SETTLED BY THE HONBLE JURISDICTIONAL HIGH COURT, HENCE, THE MATTER IS BEING DECIDED EX - PARTE THE ASSESSEE. THE G ROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS DISMISSED. 13 . IN THE RESULT, THE APPEAL OF ASSE SSEE IS DISMISSED. ORDER PRONOUNCED ON THIS 21 ST DAY OF JANUARY , 201 9 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWL A ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 21 ST JANUARY , 201 9 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) , PUNE - 5, PUNE ; 4. THE PR. CIT , PUNE - 4, PUNE ; 5. 6. , , , - / DR SMC , ITAT, PUNE; / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE