ITO 34(2)(4), MUMBAI V. NILESH ASHOK LOHAR, MUMBAI

ITA 7240/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7148 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 08-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI
• Section: 143(3); 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D , MUMBAI BEFORE SHRI RAJENDRA , HON'BLE ACCOUNTANT MEMBER AND SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER ITA NO . 7240 /MUM/201 6 (A.Y : 2012 - 13 ) INCOME TAX OFFICER 34(2)(4), ROOM NO . 202, C - 12, 2 ND FLOOR, PRATYAKSHKAR BHAVAN , BANDRA KURLA COMPLEX, BANDRA(E), MUMBAI 400 051 V . SHRI NILESH A S HOK LOHAR B - 205, DOSTI MERCURY, SHEIKH MISTRY ROAD, WADALA (W), MUMBAI 400 037 PAN NO: ABTPL 3363 R (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RUTURAJ H. GURJAR DEPARTMENT BY : SHRI RAM TIWARI DATE OF HEARING : 11.06.2018 DATE OF PRONOUNCEMENT : 22 .06.2018 O R D E R PER C.N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 46, MUMBAI DATED 26.09.2016 FOR THE ASSESSMENT YEAR 2012 - 13. 2. THE APPEAL IS TIME BARRED BY 13 DAYS AND THE REVENUE BY LETTER DATED 01.05.2018 STATED THAT IN FORM NO.36 THE DATE OF RECEIPT OF THE LD.CIT(A) ORDER WAS WRONGLY MENTIONED AS 26.09.2016 WHICH IS THE DATE 2 ITA NO.7240/MUM/2016 (A.Y: 2012 - 13) SHRI NILESH ASHOK LOHAR OF THE ORDER BUT THE ORDER OF THE LD.CIT(A) WAS COMMUNICATED TO THE PR.CIT ON 19.10.2016. IT IS THEREFORE SUBMITTED THAT THERE IS A MISTAKE IN MENTIONING T HE DATE OF COMMUNICATION IN FORM NO.36 AS 26.09.2016 INSTEAD OF 19.1 0 .2016. IT IS SUBMITTED THAT THE DUE DATE FOR FILING OF APPEAL BEFORE THE TRIBUNAL WAS 16.12.2016 AND THE APPEAL WAS FIL ED ON 08.12.2016 AND THEREFORE IT IS WITHIN THE TIME AND THERE IS NO DELAY IN FILING OF APPEAL. LD. COUNSEL FOR THE ASSESSEE HAS NO SERIOUS OBJE CTIONS IN CONDONATION OF DELAY. 3. ON HEARING BOTH THE S IDES AND PERUSING THE LETTER FILED BY THE REVENUE , WE FIND THAT THE DATE OF COMMUNICATION OF THE ORDER OF LD.CIT(A) WAS WRONGLY MENTIONED IN FORM NO.36 AS 26.09.2016 INSTEAD OF 19.10.2016. IF THE DATE OF THE COMMUNICATION IS TAKEN AS 19.10.2016 , THERE IS NO DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL AS IT WA S FILE D ON 08.12.2016 WHICH IS WELL WITHIN THE PERIOD OF 60 DAYS. IN THE CIRCUMSTANCES WE ADMIT THE APPEAL. 4. COMING TO THE MERITS OF THE APPEAL THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: - (I) ' ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW LEARNED CIT(A) IGNORED THE FACT THAT AS PER PROVISION OF SECTION 54, THE ASSESSEE HAS TO CONSTRUCT THE RESIDENTIAL HOUSE WITHIN THREE YEARS OR PURCHASE WITHIN TWO YEARS AND IF THE CAPITAL GAIN NOT UTILIZE REQUIRED TO DEPOSIT IN ANY NOTIFIED CAPITAL GAIN AC COUNT SCHEME ON OR BEFORE THE DUE DATE OF FILING RETURN OF INCOME U/S 139(1) TO SAVE HIM FROM LIABILITY OF PAYING CAPITAL GAIN TAX'. 3 ITA NO.7240/MUM/2016 (A.Y: 2012 - 13) SHRI NILESH ASHOK LOHAR (II) ' ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW LEARNED CIT(A) ERRED IN NOT CONSIDERING THE FACT THAT THE ASSES SEE HEAVILY RELIED UPON THE ADVANCES MADE TO BUILDER WITHOUT ENTERING INTO ANY LEGAL AGREEMENT. THE ASSESSEE HAS NOT ENTERED INTO ANY AGREEMENT AND HAS NOT REGISTERED THE SAME. THE ASSESSEE HAS NOT PAID STAMP DUTY IN RESPECT OF THE FLAT TO BE OWNED BEFORE THE EXPIRY OF PERIOD OF THREE YEARS WHICH COULD HAVE JUSTIFIED THE TITLE OF OWNERSHIP OF THE SA ID FLAT. (III) 'THE APPELLANT PRAYS THAT THE ORDER OF THE LD CIT(A) ON THE ABOVE GROUNDS BE SET ASIDE AND THAT OF THE AO BE RESTORED' (IV) ' THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND' 5. BRIEFLY STATED THE FACTS ARE THAT, THE ASSESSEE AN INDIVIDUAL FILED RETURN OF INCOME ON 25.03.2014 DECLARING INCOME OF .4,13,920/ - . THE ASSESSMENT WAS COMPLETED ON 28.03.2015 U/S. 143(3) OF THE ACT DETERMINING THE INCOME OF THE ASSESSEE AT .54,49,700/ - . WHILE COMPLETING THE ASSESSMENT THE A SSESSING OFFICER DENIED THE ASSESSEES CLAIM FOR EXEMPTION U/S. 54 OF THE ACT AND COMPUTED THE LONG TERM CAPITAL GAIN AT .50,35,776/ - . ON APPEAL THE LD.CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE BASED ON THE COPY OF THE LEDGER EXTRACT SHOWING THE DETAILS O F PAYMENTS MADE BY THE ASSESSEE TO THE BUILDER. 6. BEFORE US THE LD. DR REFERRING TO THE ASSESSMENT ORDER VEHEMENTLY ARGUED THAT T HE ASSESSING OFFICER REQUIRED THE ASSESSEE TO J USTIFY THE CONDITION LAID DOWN IN SECTION 54 OF THE ACT AN D ALLOWABILITY OF CLAIM AND THE ASSESSEE DID NOT FILE ANY EXPLANATION OR EVIDENCE WHATSOEVER IN SUPPORT OF HIS CLAIM EXCEPT SOME PAYMENT SLIPS TO THE BUILDERS. THE LD.DR REF ERRING TO THE PARA 4.5 AND 5.1 OF THE ASSESSMENT ORDER 4 ITA NO.7240/MUM/2016 (A.Y: 2012 - 13) SHRI NILESH ASHOK LOHAR SUBMITTED THAT THE ASSESSEE HAS NOT FURNISHED ANY P ROOF OF PURCHASE OF THE FLAT I.E. ANY AGREEMENT OF SALE OR SALE DEED ETC., WITH THE BUILDER TO PROVE THAT THE PROPERTY WAS PURCHASED BY THE ASSESSEE. THEREFORE, LD. DR SUBMITTED THAT IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCES FURNISHED BY THE ASSESSEE IN SUPPORT OF HIS CONTENTION THAT THE PROPERTY WAS PURCHASED THE CLAIM FOR EXEMPTION U/S. 54 OF THE ACT WAS RIGHT LY DENIED. 7. HOWEVER, THE LD. COUNSEL FOR THE ASSESSEE STRONGLY SUPPORTED THE ORDERS OF THE LD.CIT(A). LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMIT TED THAT THE ASSESSEE HAS MADE TOTAL PAYMENT OF .53,08,125/ - FROM 22.11.2011 TO 16.07.2013 FOR PURCHASE OF FLAT AND THEREFORE ASSESSEE HAS RIGHTLY CLAIMED EXEMPTION U/S. 54 OF THE ACT. HE ALSO PLACED RELIANCE ON THE DECISION OF THE CHENNAI BENCH OF THE T RIBUNAL IN THE CASE OF ACIT V. M. RAGHURAMAN [169 ITD 315] AND SUBMITTED THAT THE TRIBUNAL HELD THAT, EVEN WHERE NEW FLAT IN WHICH ASSESSEE HAD INVESTED ENTIRE CAPITAL GAIN WAS NOT COMPLETED AND POSSESSION WAS NOT GIVEN , ASSESSEE COULD NOT BE DENIED EXEMPTION U/S. 54 OF THE ACT. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE CASE LAWS RELIED ON. FROM A PERUSAL OF THE ASSESSMENT ORDER , WE FIND THAT THE ASSESSEE WAS REQUIRED TO JUS TIFY ITS 5 ITA NO.7240/MUM/2016 (A.Y: 2012 - 13) SHRI NILESH ASHOK LOHAR CLAIM U/S. 54 OF THE ACT. HOWEVER, IT SEEMS THAT NO EXPLANATION HAS BEEN FILED BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER HAS CATEGORICAL LY STATED THAT THE ASSESSEE NEITHER PRODUCED ANY AGREEMENT FOR PURCHASE OF THE PROPERTY OR SALE DEE D IN PROOF OF ASSESSEE PURCHASING THE PROPERTY. IT IS THE FINDING OF THE ASSESSING OFFICER THAT EXCEPT PAYMENT SLIPS ASSESSEE COLD NOT PRODUCE ANY DOCUMENTARY EVIDENCES TO SHOW THAT THE ASSESSEE HAD PURCHASED THE PROPERTY. IT IS ALSO THE FINDING OF THE A SSESSING OFFICER THAT EVEN AS ON THE DATE OF COMPLETION OF ASSESSMENT THE PROPERTY WAS NOT REGISTERED IN THE NAME OF THE ASSESSEE. HE ALSO OBSERVED THAT PROPERTY WAS NEVER TRANSFERRED TO THE ASSESSEE BY THE BUILDER. THESE FINDINGS HAVE NOT BEEN REBUTTED BY THE ASSESSEE WITH EVIDENCES. EVEN BEFORE US NO EVIDENCES HAVE BEEN FILED BY THE ASSESSEE TO REBUT THESE FINDINGS . WE OBSERVE THAT THE LD.CIT (A) ALLOWED THE CLAIM OF THE ASSESSEE STATING THAT ASSESSEE HAS MADE PAYMENTS TO THE BUILDER BASED ON THE LEDGE R COPY FURNISHED BY THE ASSESSEE. WHEN THE VERY ACQUISITION OF THE PROPERTY BY THE ASSESSEE WAS IN DOUBT AND NO EVIDENCE S HAVE BEEN FURNISHED TO PROVE THAT THE PROPERTY WAS ACQUIRED BY THE ASSESSEE THE EXEMPTION U/S. 54 OF THE ACT CANNOT BE ALLOWED . THER EFORE, WE HOLD THAT THE ASSESSEE FAILED TO PROVE THAT HE HAS PURCHASED THE PROPERTY AND SINCE THE VERY ACQUISITION OF THE PROPERTY IS NOT PROVED WITH DOCUMENTARY EVIDENCES, WE HOLD THAT THE ASSESSEE IS NOT ENTITLED FOR ANY 6 ITA NO.7240/MUM/2016 (A.Y: 2012 - 13) SHRI NILESH ASHOK LOHAR EXEMPTION U/S. 54 OF THE ACT. THU S WE REVERSE THE ORDER OF THE LD.CIT(A) AND RESTORE THAT OF THE ASSESSING OFFICER. GROUNDS RAISED BY THE REVENUE ARE ALLOWED. 9. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 22 ND JUNE, 2018. SD/ - SD/ - ( RAJENDRA ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 22 / 06 / 201 8 GIRIDHAR , S R. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER, (ASSTT. REGISTRAR) ITAT, MUM