Yoga Sikka (Uppal), Moradabad V. ITO, Ward-1(1), Moradabad

ITA 938/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4646 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 06-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Opportunity of being heard; Cost of acquisition
• Section: 54F; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: SMC, NEW DELHI) BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER ITA NO:-938/DEL/2018 ( ASSESSMENT YEAR: 2014-15) SMT. YOGA SIKKA (UPPAL) NEW KHUSHAL NAGAR, STATION ROAD, MORADABAD VS. INCOME TAX OFFICER WARD 1 (1) MORADABAD APPELLANT RESPONDENT ASSESSEE BY : SH. PIYUSH KAUSHIK, ADVOCATE REVENUE BY : SH. S. L. ANURAGI, SR. DR DATE OF HEARING : 20.05.2019 DATE OF PRONOUNCEMENT : 21.05.2019 ORDER PER: N. K. BILLAIYA, AM THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS], MORADABAD, DA TED 30.08.2017 FOR ASSESSMENT YEAR 2014-15. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE C IT(A) ERRED IN CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFIC ER ON ACCOUNT OF LONG TERM CAPITAL GAIN ON SALE OF JEWELLERY AMOUNTING TO RS.4,88,902/-. 2 ITA NO.-938/DEL/2018 3. FACTS ON RECORD SHOW THAT DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE SOLD 22 CARAT JEWELLERY OF 383.32 GRAMS FO R RS.10 LACS. THE INDEXED COST OF ACQUISITION WAS TAKEN AT RS.511098/ - WHICH RESULTED INTO LONG TERM CAPITAL GAIN OF RS.4,88,902/-. 4. THE ASSESSEE CLAIMED THE SAME AS EXEMPT U/S. 54F OF THE ACT BEING INVESTMENT MADE IN A RESIDENTIAL HOUSE PROPERTY. H OWEVER, THE CLAIM OF EXEMPTION WAS DENIED BY THE ASSESSING OFFICER WHO W AS OF THE OPINION THAT THAT THE ASSESSEE HAS NOT PURCHASED ANY RESIDE NTIAL HOUSE BUT HAS PURCHASED ONLY LAND. ACCORDINGLY THE ADDITION OF R S.4,88,902/- WAS MADE. 5. ASSESSEE AGITATED THE MATTER BEFORE THE CIT(A) A ND THE CLAIM OF EXEMPTION WAS REITERATED. THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE BY OBSERVING THAT THERE WAS NO CORROBORATIVE EVIDEN CE OF CONSTRUCTION/ COMPLETION OF A HOUSE TO PROVE THE BONAFIDE INTENTI ON OF CONSTRUCTION AND WITHOUT PROOF THE BENEFIT OF SECTION 54F CANNOT BE GIVEN. 6. BEFORE ME THE COUNSEL FOR THE ASSESSEE STATED TH AT COST OF INVESTMENT IN LAND IS ALSO ELIGIBLE FOR THE BENEFIT OF SECTION 54F OF THE ACT. THE COUNSEL PRODUCED A COMPLETION CERTIFICATE ISSUE D BY NAGAR NIGAM 3 ITA NO.-938/DEL/2018 MORADABAD. IT IS THE SAY OF THE COUNSEL THAT THIS CERTIFICATE CONCLUSIVELY CONFIRMS THAT CONSTRUCTION OF BUILDING IN THE PLOT WAS COMPLETED ON 10.10.2016 WHICH IS WELL WITHIN STIPULATED PERIOD O F THREE YEARS FROM THE SALE OF JEWELLERY SUBJECT TO CAPITAL GAIN FOR THE P URPOSE OF AVAILING EXEMPTION U/S 54F OF THE ACT. 7. THE DR STRONGLY SUPPORTED THE FINDINGS OF THE CI T(A) AND STATED THAT THIS CERTIFICATE WAS NEVER PRODUCED BEFORE THE LOWE R AUTHORITIES. 8. I HAVE GIVEN A CAREFUL CONSIDERATION TO THE ORDE RS OF THE AUTHORITIES BELOW. THERE IS NO DISPUTE THAT THE ASSESSEE HAS I NVESTED THE FULL SALE CONSIDERATION RECEIVED ON THE SALE OF JEWELLERY IN THE PURCHASE OF THE PLOT OF LAND. IT IS ALSO NOT IN DISPUTE THAT BEFORE THE LOWER AUTHORITIES THE ASSESSEE COULD NOT ADDUCE ANY EVIDENCE. THE CERTIFI CATE FROM MUNICIPAL CORPORATION, MORADABAD HAS BEEN FURNISHED FOR THE F IRST TIME. IN THE INTEREST OF JUSTICE I RESTORE THIS ISSUE TO THE FIL ES OF THE ASSESSING OFFICER. THE ASSESSING OFFICER IS DIRECTED TO VERIFY THE CER TIFICATE OF CONSTRUCTION ISSUED BY MUNICIPAL CORPORATION, MORADABAD AND DECI DE THE ISSUE AFRESH AS PER PROVISIONS OF LAW, KEEPING IN MIND THAT THE COS T OF INVESTMENT IN LAND IS ALSO PART OF COST OF CONSTRUCTION OF THE RESIDENTIA L HOUSE TO AVAIL THE 4 ITA NO.-938/DEL/2018 EXEMPTION U/S. 54 F ACT. NEEDLESS TO MENTION THE A SSESSING OFFICER SHALL GIVE A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 21.05.2019. SD/- (N.K.BILLAIYA) ACCOUNTANT MEMBER DATED: 21.05.2019 NEHA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA NO.-938/DEL/2018 DATE OF DICTATION 20.05.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 20.05.2019 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER