Smt. Neelam Mahana, Lucknow V. Income Tax Officer-6(2), Lucknow

ITA 722/LKW/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5751 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 8 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 22-07-2021
• Assessment Year: 2007-2008
• Appeal Filed On: 16-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Additional evidence; Cost of acquisition; Valuation report
• Section: 147; 54

Judgement Text

I.T.A. NO.722/LKW/2019 ASSESSMENT YEAR:2007-08 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO.722/LKW/2019 ASSESSMENT YEAR:2007-08 MRS. NEELAM MAHANA, 1445, HIG, SECTOR-I, KANPUR ROAD YOJANA, LDA COLONY LUCKNOW. PAN:AFWPM8762N VS. INCOME TAX OFFICER-6(2), LUCKNOW. (APPELLANT) (RESPONDENT) O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LEARNED CIT(A)-2, LUCKNOW DATED 28/11/2019 PERTAINING TO AS SESSMENT YEAR 2007- 2008. 2. THE ASSESSEE HAS TAKEN VARIOUS GROUNDS OF APPEAL WHICH ARE ARGUMENTATIVE IN NATURE. HOWEVER, THE CRUX OF HER GRIEVANCE IS RESTRICTION OF EXEMPTION U/S 54 OF THE ACT WHICH THE LEARNED CI T(A) HAS RESTRICTED UPTO RS.10,00,000/- AS AGAINST TOTAL DENIAL BY THE ASSESSING OFFICER. THE SECOND GRIEVANCE OF THE ASSESSEE IS THE CALCULATION OF LONG TERM CAPITAL GAIN. THE CASE OF THE ASSESSEE WAS REOPENED U/S 14 7 OF THE ACT AS THE ASSESSING OFFICER WAS IN POSSESSION OF AN INFORMATI ON THAT THE ASSESSEE HAD SOLD ONE PROPERTY AND HAD NOT DECLARED THE SAME IN THE RETURN OF APPELLANT BY SHRI ASHOK KUMAR BHARADWAJ, ADVOCATE RESPONDENT BY SHRI HARISH GIDWANI, D.R. DATE OF HEARING 25 /0 8 /2021 DATE OF PRONOUNCEMENT 15/09/2021 I.T.A. NO.722/LKW/2019 ASSESSMENT YEAR:2007-08 2 INCOME. BEFORE THE ASSESSING OFFICER IT WAS EXPLAI NED BY THE ASSESSEE THAT THE IN FACT SHE HAD SOLD TWO PROPERTIES DURING THE YEAR AND THE INDEXED COST OF ACQUISITION, AS PER THE VALUATION R EPORT, WAS MORE THAN THE SALE CONSIDERATION AND THEREFORE, THERE WAS A LONG TERM CAPITAL LOSS AND IT WAS FURTHER SUBMITTED THAT RS.32,80,000/- HAS BE EN INVESTED IN OTHER RESIDENTIAL PROPERTY WHICH GIVES THE EXEMPTION FROM LONG TERM CAPITAL GAIN. THE ASSESSING OFFICER HOWEVER, HELD THAT THE AREA OF THE PROPERTY AS PER SALE DEED WAS LESSER THAN THE AREA OF THE PROPE RTY AS PER VALUATION CERTIFICATE AND THEREFORE, HE HELD THAT THE ABOVE V ALUATION REPORT WAS NOT RELIABLE AND THEREFORE, ON THE BASIS OF VALUATION R EPORT, OBTAINED FROM THE VALUATION OFFICER, HE CALCULATED THE LONG TERM CAPI TAL GAIN OF ONE PROPERTY AND DID NOT COMPUTE THE CAPITAL GAIN / LOS S FROM THE SECOND PROPERTY. SIMILARLY, THE ASSESSING OFFICER DISALLO WED THE EXEMPTION U/S 54 OF THE ACT BY HOLDING THAT THE ASSESSEE COULD NOT P ROVE THAT THE SALE PROCEEDS IN ONE PROPERTY HAS BEEN INVESTED IN ANOTH ER PROPERTY. THE LEARNED CIT(A) THOUGH CONFIRMED THE ADDITION ON ACC OUNT OF LONG TERM CAPITAL GAIN BUT ALLOWED EXEMPTION U/S 54 OF THE AC T UPTO AN AMOUNT OF RS.10,00,000/- ONLY. THE CONTENTION OF THE ASSESSE E THAT SHE HAD INVESTED AN AMOUNT OF RS.32,80,000/- IN A RESIDENTIAL PROPER TY WAS ALSO NOT ACCEPTED BY THE LEARNED CIT(A). THE LEARNED CIT(A) HAS ALSO NOT ADMITTED ADDITIONAL EVIDENCE WHICH THE ASSESSEE HAD FILED BE FORE HIM BY HOLDING THAT THE ABOVE APPLICATION DOES NOT EXPLAIN AS TO W HAT WAS THE SUFFICIENT CAUSE WHICH PREVENTED THE ASSESSEE FROM PRODUCING T HESE EVIDENCES BEFORE THE ASSESSING OFFICER. I FIND THAT THE CON TENTION OF THE ASSESSEE IS THAT THERE WERE TWO SALE DEEDS, THE VALUATION REPOR T OF ONE OF THEM WAS FILED WITH THE ASSESSING OFFICER AND THE VALUATION REPORT OF THE SECOND PROPERTY WAS FILED WITH LEARNED CIT(A) WHO HAD NOT ADMITTED THE SAME. HOWEVER, I FEEL THAT SINCE THE AUTHORITIES BELOW HA VE TAKEN THE SALE VALUE ON THE BASIS OF VALUATION CERTIFICATE OF 7,930 SQ. FT., WHICH IS THE AREA OF I.T.A. NO.722/LKW/2019 ASSESSMENT YEAR:2007-08 3 THE TWO PROPERTIES, IT IS NOT FAIR ON THE PART OF THE REVENUE AUTHORITIES TO TAKE AS COST OF ACQUISITION, THE COST OF ONE PROPER TY. IN VIEW OF THE FACTS AND CIRCUMSTANCES, I DEEM IT APPROPRIATE TO REMIT T HE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER WHO SHOULD PASS AFRESH ORD ER AFTER TAKING INTO ACCOUNT THE ADDITIONAL EVIDENCES FILED BY THE ASSES SEE. NEEDLESS TO SAY THAT ADEQUATE OPPORTUNITY OF BEING HEARD WILL BE PR OVIDED TO THE ASSESSEE. 3. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 15/09/2021) SD/. ( T. S. KAPOOR ) ACCOUNTANT MEMBER DATED:15/09/2021 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW