NIYATI KANAIYA NANDA, MUMBAI V. ASST CIT 22(1), MUMBAI

ITA 7334/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88682 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-01-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 11-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN V P
• Keywords: Additional evidence
• Section: 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B , MUMBAI BEFORE SHRI B.R. BASKARAN , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO. 7334/M/2012 ASSESSMENT YEAR: 2009 - 10 SMT. NIYATI KANAIYA NANDA, 58/3, MATHURA, 60 FEET ROAD, GHATKO PAR (E), MUMBAI 400 077 PAN: AEYPN4950N VS. ASST CIT 22(1), MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI HIRO RAI, A.R. REVENUE BY : SHRI ASGHARZAIN V.P., D.R. DATE OF HEARING : 14. 01 .201 5 DATE OF PRONOUNCEMENT : 31.03. 2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 31.10.2012 OF THE COMMISSIONER OF INCOME TAX (APPEALS) [(HEREINAFTER REFERRED TO AS C IT(A)] RELEVANT TO ASSESSMENT YEAR 2009 - 10 . THE SOLE ISSUE RAISED BY THE ASSESSEE THROUGH HER GROUNDS OF APPEAL IS RELATING TO THE CLAIM OF EXEMPTION UNDER SECTION 54F AMOUNTING TO RS.75,09,847/ - . 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE ALON G WITH THE CO - OWNER MRS. BHARATI RAVINDRA CHANDRAN TRANSFERRED THE PROPERTY TO M/S. SAPPHIRE DEVELOPERS FOR A CONSIDERATION OF RS.3,31,94,500/ - OUT OF WHICH A SUM OF RS.1,71,00,000/ - WAS AGREED TO BE PAYABLE BY CHEQUE I.E. IN TERMS OF MONETARY VALUE AND IN LIEU OF THE REMAINING AMOUNT , IT WAS AGREED THAT THE DEVELOPER WOULD PROVIDE TWO RESIDENTIAL FLATS I.E. ONE TO EACH OF THE CO - OWNER. OUT OF THE ITA NO.7334/M/2012 SMT. NIYATI KANAIYA NANDA 2 LONG TERM CAPITAL GAINS EARNED, THE ASSESSEE INVESTED RS.50 LAKH IN SPECIFIED BONDS AND CLAIMED EXEMPTION UNDE R SECTION 54EC. THE ASSESSEE FURTHER CLAIMED EXEMPTION UNDER SECTION 54F AMOUNTING TO RS.75,09,847/ - FOR THE RESIDENTIAL FLAT WHICH WAS AGREED TO BE RECEIVED IN LIEU OF THE SALE CONSIDERATION OF THE PROPERTY SOLD BY THE ASSESSEE. THE ASSESSING OFFICER (H EREINAFTER REFERRED TO AS THE AO) , HOWEVER, OBSERVED THAT THE ASSESSEE HAD TO CONSTRUCT OR PURCHASE A NEW FLAT/RESIDENTIAL UNIT WITHIN THREE YEARS FROM THE DATE OF SALE OF THE PROPERTY. HOWEVER, AS ON THE DATE OF THE ASSESSMENT ORDER, NEITHER THE CONSTRUC TION OF THE FLAT WAS COMPLETE NOR THE ASSESSEE WAS IN OCCUPATION OF ANY NEW RESIDENTIAL UNIT. HE, THEREFORE, DISALLOWED THE CLAIM OF THE ASSESSEE UNDER SECTION 54F OF THE ACT. 2.1 THE LD. CIT(A) ALSO CONFIRMED THE FINDING OF THE AO IN THIS RESPECT. 3. BEFORE US, THE LD. A.R. OF THE ASSESSEE HAS STATED THAT THE ASSESSEE HAD DULY INVESTED THE MONEY WHICH WAS EMBEDDED IN THE SALE CONSIDERATION ITSELF BY SELLING THE PROPERTY FOR THE PURCHASE/ ALLOTMENT OF A NEW RESIDENTIAL UNIT. HOWEVER, DUE TO CERTAIN CIR CUMSTANCES BEYOND THE CONTROL OF THE DEVELOPER , THE FLAT COULD NOT BE CONSTRUCTED WITHIN THE PERIOD OF THREE YEARS. IT HAS BEEN FURTHER CONTENDED BY THE ASSESSEE THAT HOWEVER AFTER THE PASSING OF THE IMPUGNED ORDER , THE BUILDER HAS PROVIDED A NEW FLAT TO THE ASSESSEE. IN SUPPORT OF THE ABOVE CONTENTION, THE ASSESSEE HAS MOVED AN APPLICATION DATED 08.07.14 FOR ADMISSION OF ADDITIONAL EVIDENCE. THROUGH THIS APPLICATION, THE ASSESSEE WANTS TO PRODUCE I N EVIDENCE THE DEED OF MODIFICATION DATED 18.03.13 BETWE EN THE ASSESSEE AND THE DEVELOPER AND FURTHER THE AGREEMENT DATED 31.12.12 FOR PURCHASE OF FLAT BETWEEN THE ASSESSEE AND SKYLINE RESIDENCY PROPERTY LTD. IT HAS BEEN CONTENDED BY THE LD. A.R. THAT THE ABOVE STATED DOCUMENTS WERE NOT IN EXISTENCE AT THE TIM E OF THE PENDENCY OF THE APPEAL BEFORE THE LD. CIT(A). IT HAS BEEN FURTHER CONTENDED THAT THE ABOVE STATED DOCUMENTS ARE VERY MUCH ITA NO.7334/M/2012 SMT. NIYATI KANAIYA NANDA 3 NECESSARY, TO BE LOOKED INTO FOR THE JUST DECISION OF THE CASE. IT HAS , THEREFORE , BEEN REQUESTED THAT THE ADDITIONAL EVIDE NCES BE ADMITTED AND THE MATTER BE REMANDED TO THE FILE OF THE AO FOR FRESH CONSIDERATION. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. A.R. THE ASSESSEE HAS CONTENDED THAT SHE HAD INVESTED THE MONEY FOR THE PURCHASE OF NEW RESIDENTIAL UNIT WITHIN THE STIPULATED PERIOD. HOWEVER, THE DEVELOPER COULD NOT COMPLETE THE CONSTRUCTION DUE TO CERTAIN CIRCUMSTANCES BEYOND HIS CONTROL. HOWEVER, THE DEVELOPER, AS PER THE MODIFICATION DEED, HAS ARRANGED A NEW FLAT FOR THE ASSESSEE. ALL THESE CIRCUMSTANCES HA VE TO BE LOOKED INTO FOR CONSIDERATION OF THE CLAIM OF THE ASSESSEE UNDER SECTION 54F, T HE SAME BEING A BENEFICIAL PROVISION. WE ACCORDINGLY, ALLOW THE APPLICATION FOR ADDITIONAL EVIDENCE MOVED BY THE ASSESSEE AND RESTORE THE MATTER TO THE FILE OF THE AO FOR A DECISION AFRESH WITH A DIRECTION THAT THE AO WILL PROVIDE PROPER OPPORTUNITY TO THE ASSESSEE TO PRODUCE THE ADDITIONAL EVIDENCES AND OTHER DOCUMENTS RELIED UPON AND THEN TO PASS A FRESH ASSESSMENT ORDER AS PER THE PROVISIONS OF LAW. 5. IN THE RESU LT, THE APPEAL OF THE ASSESSEE IS HEREBY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31.03. 201 5 . SD/ - SD/ - ( B.R. BASKARAN ) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 31.03.2015 . * KISHORE , SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT ITA NO.7334/M/2012 SMT. NIYATI KANAIYA NANDA 4 THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.