Smt. Shakuntala Badrisingh Rawat, Nanded V. Income-tax Officer,

ITA 902/PUN/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0335 (ITAT-PUNE)
• Duration Of Justice: 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 21-09-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 03-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUMITRA BANERJI
• Keywords: Sale consideration of property below Jantri Value; Source of fund; Additional evidence; Wrong claim; Valuation report; Set aside; Capital Gains
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 50C; 54F

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE , BEFORE MS. SUSHMA CHOWLA, JM / ITA NO.902/PN/2016 ! ' ' / ASSESSMENT YEAR : 2008-09 SMT.SHAKUNTALA BADRISINGH RAWAT, BADRINATH MANSION, GADIPURA, OLD MONDHA, TQ.NANDED, NANDED. . / APPELLANT PAN: ANCPR9772M VS. THE INCOME TAX OFFICER, WARD 3(1), NANDED . RESPONDENT / ITA NO.903/PN/2016 ! ' ' / ASSESSMENT YEAR : 2008-09 MAYURSINGH MASNOHARSINGH RAWAT, BADRINATH MANSION, GADIPURA, OLD MONDHA, TQ.NANDED, NANDED. . / APPELLANT PAN: ANHPR4763K VS. THE INCOME TAX OFFICER, WARD 3(1), NANDED . RESPONDENT ITA NO.902 & 903/PN/2016 SMT. SHAKUNTALA BADRISINGH RAWAT 2 / APPELLANT BY : SHRI HARI KRISHNAN / RESPONDENT BY : SMT SUMITRA BANERJI DATE OF HEARING : 15.12.2016 / DATE OF PRONOUNCEMENT: 16.12.2016 # / ORDER PER SUSHMA CHOWLA, JM: BOTH THE APPEALS FILED BY RELATED ASSESSEE ARE AGA INST SEPARATE ORDERS OF COMMISSIONER OF INCOME TAX(APPEALS) I, AURANGABAD, DATED 19.02.2016 AND 10.02.2016, RELATING TO ASSESSMENT Y EAR 2008 09 AGAINST RESPECTIVE ORDERS PASSED UNDER SECTION143(3 ) OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT). 2. BOTH THESE APPEALS RELATING TO DIFFERENT ASSESSE E ON IDENTICAL ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY TH IS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. HOWEVER, REFERENCE IS BEING MADE TO THE FACTS AND ISSUE IN ITA.NO.902/PN/2016 TO ADJUDICATE THE ISSUE. 3. BRIEFLY, IN THE FACTS OF THE CASE THE ASSESSEE A ND HER GRANDSON WERE THE OWNERS OF A PIECE OF URBAN AGRICULTURAL LAND IN NANDED. THE LAND WAS SOLD VIDE SALE DEED DATED 06.08.2007 FOR A TOTAL CO NSIDERATION OF RS.25,00,000/-, IN WHICH THE ASSESSEE HAD HALF SHAR E. THE ASSESSEE HAD NOT FURNISHED ANY RETURN OF INCOME. THE ASSESSING OFFICER ON RECEIPT OF ITA NO.902 & 903/PN/2016 SMT. SHAKUNTALA BADRISINGH RAWAT 3 AIR INFORMATION ISSUED RE-ASSESSMENT NOTICE UNDER S ECTION 148 OF THE ACT. IN REPLY, THE ASSESSEE FILED RETURN OF INCOME DECLA RING TOTAL INCOME OF RS.10,00,230/- AND CAPITAL GAINS AT NIL. THE ASSES SEE CLAIMED DEDUCTION UNDER SECTION 54F OF THE ACT AGAINST INVESTMENT IN A RESIDENTIAL HOUSE AT GADIPURA, NANDED. THE INVESTMENTS WERE JOINTLY MAD E BY THE ASSESSEE AND HER GRANDSON. THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOTED THAT THE STAMP DUTY VALUATION OF THE LAND SOLD BY ASSESSEE WAS RS.51,20,000/-, WHICH WAS ADOPTED UNDE R SECTION 50C OF THE ACT AND AFTER ALLOWING UNDER SECTION 54F OF THE ACT , THE LONG TERM CAPITAL GAINS WERE COMPUTED AT RS.5,51,930/-. 4. IN APPEAL, THE COMMISSIONER OF INCOME TAX (APPEA LS) ASKED THE ASSESSEE TO EXPLAIN THE BASIS ON WHICH SALE CONSIDE RATION WAS TAKEN AT RS.36,54,000/- AS AGAINST RS.25,00,000/- MENTIONED IN THE SALE DEED. THE CIT(A) ALSO ASKED THE ASSESSEE TO EXPLAIN THE TOTAL SOURCE OF FUNDING OF INVESTMENT IN THE CONSTRUCTION OF THE NEW HOUSE AT RS.36,95,240/-. THE ASSESSEE WAS ALSO ASKED TO PRODUCE THE DOCUMENTARY EVIDENCE INCLUDING BILLS OF CONSTRUCTION IN THE NEW HOUSE. THE ASSESS EE FURNISHED CERTAIN INFORMATION BEFORE THE CIT(A) WHO ALSO OBTAINED A R EPORT FROM THE ASSESSING OFFICER. THE CONCLUSION OF THE CIT(A) WA S THAT THE ASSESSEE HAS NOT CONSTRUCTED THE RESIDENTIAL HOUSE AND THE A SSESSEE HAD MADE A FALSE CLAIM OF DEDUCTION UNDER SECTION 54F OF THE A CT. THE CIT(A), THUS, ENHANCED THE INCOME OF THE ASSESSEE UNDER THE HEAD INCOME FROM LONG ITA NO.902 & 903/PN/2016 SMT. SHAKUNTALA BADRISINGH RAWAT 4 TERM CAPITAL GAINS AT RS.39,59,050/- AS AGAINST RS .5,51,930/- ASSESSED BY THE ASSESSING OFFICER. 5. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF T HE CIT(A). 6. THE PLEA OF THE ASSESSEE BEFORE THE TRIBUNAL IS THAT THE CIT(A) HAD NEVER ASKED ANY QUESTION FROM THE ASSESSEE AS TO WH ETHER THE ASSESSEE HAD CONSTRUCTED THE NEW HOUSE OR HAD CARRIED OUT ON LY RENOVATION / REPAIRS OF EXISTING HOUSE. THE ASSESSEE PLEADS THAT NO QUE RY WAS RAISED TO FURNISH THE EVIDENCE IN SUPPORT OF THE CONSTRUCTION OF THE NEW HOUSE. THE ASSESSEE IS AGGRIEVED BY THE NON-ALLOWANCE OF OPPOR TUNITY TO PRODUCE THE EVIDENCE TO SHOW THAT THE ASSESSEE HAD ACTUALLY CON STRUCTED A NEW HOUSE. THE ASSESSEE BEFORE THE TRIBUNAL, HAS MADE A REQUES T FOR ADMISSION OF ADDITIONAL EVIDENCE, WHICH AS PER THE ASSESSEE GOES TO THE ROOT OF THE ISSUE. 7. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND PLACED RELIANCE ON THE ORDER OF CIT(A). 8. ON THE PERUSAL OF RECORD AND AFTER HEARING BOTH THE AUTHORIZED REPRESENTATIVES, THE ISSUE ARISING IN THE PRESENT A PPEAL IS AGAINST THE ENHANCEMENT CARRIED OUT BY THE CIT(A) IN DENYING TH E CLAIM OF DEDUCTION UNDER SECTION 54F OF THE ACT AND ASSESSING THE INCO ME FROM LONG TERM ITA NO.902 & 903/PN/2016 SMT. SHAKUNTALA BADRISINGH RAWAT 5 CAPITAL GAINS ON A HIGHER VALUE. THE ASSESSING OFF ICER HAD ALLOWED THE SAID CLAIM OF THE ASSESSEE DURING THE ASSESSMENT PR OCEEDINGS, HOWEVER, THE CIT(A) WAS OF THE VIEW THAT THE ASSESSEE HAS NO T CONSTRUCTED THE NEW HOUSE, AS CLAIMED. HENCE, THE ASSESSEE IS NOT ENTI TLED TO THE BENEFIT OF SECTION 54F OF THE ACT. THE ASSESSEE, ON THE OTHER HAND, BEFORE THE TRIBUNAL HAS FURNISHED EVIDENCE OF CONSTRUCTION OF THE NEW HOUSE BY WAY OF THE PLANS SANCTIONED AND OTHER EVIDENCES. 8. THE ASSESSEE THEREFORE SEEKS PERMISSION TO PRODU CE THE FOLLOWING ADDITIONAL EVIDENCE TO SHOW THAT SHE HAS ACTUALLY C ONSTRUCTED A NEW RESIDENTIAL HOUSE. S.NO. PARTICULARS PAGE NO. 1 COPY OF THE PLAN OF THE GROUND FLOOR, FIRST FLOOR AND SECOND FLOOR OF THE NEW HOUSE. 1 2 COPY OF THE ACKNOWLEDGEMENT DATED 26/04/2006 OF APPLICATION FOR CONSTRUCTION OF THE NEW HOUSE FILED WITH MUNICIPAL CORPORATION NANDED. 2 3 COPY OF SETTLEMENT DATED 02/05/2008 WITH SHRI GAJENDRASINGH THAKOR REGARDING UNSATISFACTORY WORK OF FIXING MARBLE AND TILES, IN ASSESSEES HOUSE AT MONDHA, NANDED. 3-4 4 COPY OF THE INVITATION CARD FOR HOUSE WARMING CEREMONY OF NEW HOUSE, HELD ON 25/05/2008. 5-6 5 COPY OF ACKNOWLEDGEMENT DATED 05/06/2009 FOR APPROVAL OF THE CONSTRUCTION. 7 6 COPY OF LETTER DATED 15/09/2009 ISSUED BY NANDED MUNICIPAL CORPORATION INDICATING THE 8 ITA NO.902 & 903/PN/2016 SMT. SHAKUNTALA BADRISINGH RAWAT 6 AMOUNT OF THE FEES TO BE PAID FOR THE DEVELOPMENT WORK. 7 COPY OF THE RECEIPT DATED 16/10/2009 FOR PAYMENT OF PERMISSION FEES FOR DEVELOPMENT WORK. 9 8 COPY OF LETTER DATED 22/10/2009 ISSUED BY MUNICIPAL CORPORATION NANDED REGARDING DEVELOPMENT WORK. 10-11 9 COPY OF VALUATION REPORT ESTIMATING THE VALUE OF THE CONSTRUCTION OF THE HOUSE AT RS.42,60,000/-. 12-24 9. THE PERUSAL OF THE DOCUMENTS FILED BY THE ASSESS EE REFLECTS THAT THE ADDITIONAL EVIDENCE IS NECESSARY TO BE LOOKED INTO FOR ADJUDICATING THE ISSUE AS TO WHETHER THE ASSESSEE IS ENTITLED TO CLAIM THE DEDUCTION UNDER SECTION 54F OF THE ACT. ACCORDINGLY, THE MATTER IS RESTORE D BACK TO THE FILE OF CIT(A) WITH DIRECTIONS TO THE ASSESSEE TO FURNISH THE REQU ISITE INFORMATION AND ALSO TO PUT UP HER SUBMISSIONS TO ESTABLISH THE CLAIM OF DEDUCTION UNDER SECTION 54F OF THE ACT. THE CIT(A) IS DIRECTED TO DECIDE T HE ISSUE DENOVO AFTER CONSIDERING THE ADDITIONAL EVIDENCE AND ANY OTHER E VIDENCE, IF SO REQUIRED AND AFTER AFFORDING REASONABLE OPPORTUNITY OF HEARI NG TO THE ASSESSEE. THE ISSUE IS SET ASIDE TO THE FILE OF CIT(A) WITH ABOVE DIRECTIONS. SINCE THE MATTER IS BEING SET ASIDE TO THE FILE OF CIT(A), TH E ISSUE ON MERITS IS NOT BEING ADJUDICATED. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE THUS, ALLOWED FOR STATISTICAL PURPOSES. ITA NO.902 & 903/PN/2016 SMT. SHAKUNTALA BADRISINGH RAWAT 7 10. THE FACTS AND ISSUE IN ITA NO.903/PN/2016 ARE IDENTICAL TO THE FACTS AND ISSUE IN ITA NO.902/PN/2016 AND THE DECISION IN ITA NO.902/PN/2016 SHALL APPLY MUTATIS MUTANDIS TO ITA NO.903/PN/2016. 11. IN THE RESULT, BOTH THE APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 16 TH DAY OF DECEMBER, 2016. SD/- (SUSHMA CHOWLA) / JUDICIAL MEMBER / PUNE ; DATED : 16 TH DECEMBER, 2016 . S S G G R R #$%&'()(& / COPY OF THE ORDER IS FORWARDED TO : THE APPELLANT; THE RESPONDENT; $ $ % () THE CIT(A)-1, AURANGABAD; $ $ % THE PR. CIT-1, AURANGABAD ()* ++,-, $ ,- , , / 0 11 / DR SMC, ITAT, PUNE; *23 4 / GUARD FILE. #! / BY ORDER 567 +8 ,9 / SR. PRIVATE SECRETARY $ ,- , ITAT, PUNE