Anuradha Kansal, Ghaziabad V. ITO, Ghaziabad

ITA 6590/DEL/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 97811 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 13-08-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 05-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS RAKHI VIMAL
• Keywords: Additional evidence; Valuation report; Competent authority
• Section: 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : SMC-II : NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER ITA NO.6590/DEL/2014 ASSESSMENT YEAR : 2009-10 ANURADHA KANSAL, C/O AKHILESH KUMAR, ADVOCATE, CHAMBER NO.206-07, ANSAL SATYAM, RDC RAJ NAGAR, GHAZIABAD. PAN: AEFPK6821E VS. ITO, WARD-1(1), GHAZIABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AKHILESH KUMAR, ADVOCATE DEPARTMENT BY : MRS. RAKHI VIMAL, JCIT DATE OF HEARING : 13. 08.2015 DATE OF PRONOUNCEMENT : 04.11.2015 ORDER THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE CIT(A), GHAZIABAD, DATED 26.08.2014 FOR THE ASSESSM ENT YEAR 2009-10. ITA NO.6590/DEL/2014 2 2. THE SOLE ISSUE THAT IS ARGUED BEFORE US IS DENIA L OF AN EXEMPTION CLAIMED U/S 54F OF THE ACT BY THE AO. THE FACTS LEA DING TO THE DISALLOWANCE ARE THAT THE ASSESSEE HAD PURCHASED A PLOT OF LAND ON 28.7.2007 AND HAD CLAIMED TO HAVE CONSTRUCTED A HOU SE ON THE SAME. NO CLAIM FOR EXEMPTION U/S 54F WAS MADE WHILE FILING T HE RETURN OF INCOME. THE CLAIM WAS MADE DURING THE ASSESSMENT PROCEEDING S. THE AO RECORDS THAT NO DETAILS OF CONSTRUCTION, I.E., MAP APPROVAL , COMPLETION CERTIFICATE OF COMPETENT AUTHORITY, HAVE BEEN SUBMITTED. HE AL SO RECORDS THAT THE ASSESSEE IN THE STATEMENT OF AFFAIRS N 31.3.2009 AN D 31.03.2010 HAS RECORDED INVESTMENT IN THE HOUSE. THE EXEMPTION WAS DENIED ON THE GROUND THAT THE ASSESSEE HAS NOT DEPOSITED THE AMOU NT IN THE CAPITAL GAINS ACCOUNT ON OR BEFORE THE DUE DATE OF THE RETURN, I. E., 31.7.2009, NOR HAS PRODUCED ANY EVIDENCE OF UTILIZATION OF THE ACCOUNT OF CAPITAL GAIN IN CONSTRUCTION. THE ASSESSEE WENT IN APPEAL BEFORE T HE FIRST APPELLATE AUTHORITY. THE ASSESSEE FILED ADDITIONAL EVIDENCE. THE LD.CIT(A) CALLED FOR THE REMAND REPORT. THE AO GAVE HIS REMAND REPO RT ON 22.7.2014 FOR WHICH THE ASSESSEE FILED THE REJOINDER ON 5.8.2014. ITA NO.6590/DEL/2014 3 3. THE LD.CIT(A), AFTER CONSIDERING THESE REPORTS A ND REJOINDERS AT PARA 7.5 HELD AS FOLLOWS:- THE FACT WHETHER THE NEW HOUSE WAS CONSTRUCT ED WITHIN TIME ALLOWED FOR CLAIMING DEDUCTION IS TO BE DECIDED ON CIRCUMSTANTIAL EVIDENCE. NO DIRECT EVIDENCE HAS BEEN LEAD BY THE APPELLANT. HOW AND WHEN WAS THE CONSTRUCTION DONE. WHEN AND FROM W HOM THE CONSTRUCTION MATERIAL WAS PURCHASED. WHO WERE THE CONTRACTORS/WORKERS WHO CONSTRUCTED OR SUPERVISED T HE CONSTRUCTION. ALL SUCH EVIDENCE ARE ALMOST ALWAYS LIKELY TO BE IN POSSESSION OF ANYONE WHO GETS A HOUSE CONSTRUCTED. THE HOUSE WAS CLAIMED TO HAVE BEEN CONSTRUCTED IN 2009 AND ASSESSMENT WAS COMPLET ED IN DECEMBER, 2011. THE GAP WAS NOT SO BIG AND RECORDS WERE NOT SO OLD THAT THEY COULD NOT BE IN POSSESSION OF ASSESSEE. THUS, THE S TATEMENT THAT SHE HAD RECEIVED PART CONSIDERATION IN ADVANCE AND STAR TED CONSTRUCTION IN JANUARY, 2009 AND COMPLETED IT DURING THE YEAR, IS NOTHING BUT ONLY A SELF SERVING STATEMENT NOT SUPPORTED BY ANY COGENT EVIDENCE. THE APPELLANT HAS FAILED TO PROVE HER CLAIM. NOT A SING LE PIECE OF EVIDENCE HAS BEEN GIVEN IN RESPECT OF PURCHASES OF CONSTRUCT ION MATERIAL OR PAYMENTS TO LABOUR OR CONTRACTOR. THE VALUATION REP ORT CANNOT BE ACCEPTED AS IT IS ADDITIONAL EVIDENCE NOT PRODUCED BEFORE THE ASSESSING OFFICER AND THE CLAIM THAT IT WAS NOT ENT ERTAINED HAS NO BASIS. THE ASSESSING OFFICER HAS GIVEN AMPLE OPPOR TUNITIES TO ASSESSEE TO JUSTIFY THE GENUINENESS OF CLAIM OF HAV ING CONSTRUCTED A NEW HOUSE. IN THE FACTS AND CIRCUMSTANCES OF THE CASE. TH E CLAIM OF THE APPELLANT OF DEDUCTION U/S 54F FALLS ON FACTS AS TH E CONDITION OF INVESTMENT IN NEW HOUSE WITHIN STIPULATED TIME HAS NOT BEEN FULFILLED. ITA NO.6590/DEL/2014 4 4. RECENTLY, THE HONBLE KARNATAKA HIGH COURT IN TH E CASE OF CIT VS. B.S. SHANTHA KUMARI, ITA NO.165/201, JUDGMENT DATED 13 TH JULY, 2015, HELD AS FOLLOWS:- SECTION 54F IS THE BENEFICIAL PROVISION AND MUST B E INTERPRETED LITERALLY. IT DOES NOT REQUIRE THAT THE CONSTRUCTI ON OF NEW RESIDENTIAL HOUSE HAS TO BE COMPLETED AND THE HOUSE BE HABITABL E WITHIN THREE YEARS OF TRANSFER O THE OLD ASSET. IT IS SUFFICIEN T IF THE FUNDS ARE INVESTED IN THE NEW HOUSE PROPERTY WITHIN THE TIME LIMIT. 5. RESPECTFULLY FOLLOWING THIS DECISION OF THE HON BLE KARNATAKA HIGH COURT, I DIRECT THAT THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 54F BE ALLOWED. THE ASSESSEE HAS FURNISHED SUFFICIENT EVI DENCE TO DEMONSTRATE THAT THE AMOUNT HAS BEEN INVESTED IN A NEW HOUSE PR OPERTY WITHIN THE TIME LIMIT SPECIFIED 54F OF THE ACT. THE VALUATION REPORT OF A REGISTERED VALUER CANNOT BE REJECTED IN THE MANNER IT WAS BY T HE LD.CIT(A). 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 04.11.201 5. SD/- [J.SUDHAKAR REDDY] ACCOUNTANT MEMBER DATED, 04 TH NOVEMBER, 2015. DK ITA NO.6590/DEL/2014 5 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.