Smt. Bhavna Hitesh Rawal, Ahmedabad V. The Income Tax Officer, Ward-5(1)(1), Ahmedabad

MA 112/AHD/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 4615 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 05-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RUCHI RASTOGI
• Section: 54F; 201; 254(2); 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD SMC BENCH BEFORE: SHR I MAHAVIR PRASAD , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER SMT. BHAVNA HITESH RAWAL A - 501, PRATISHA APARTMENT, NR. BODAKDEV FIRE STATION, J.B. ROAD, BODAKDEV, AHMEDABAD PAN: ACEPR7744N (APPELLANT) THE IT O , WARD - 5 ( 1 )(1) , AHMEDABAD (RESPONDENT) REVENUE BY : MS. R UCHI RASTOGI, , SR. D . R. ASSESSEE BY: SHRI SUNIL TALATI, A.R. DATE OF HEARING : 05 - 04 - 2 019 DATE OF PRONOUNCEMENT : 14 - 05 - 2 019 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF ITAT VIDE ITA NO. 2743/AHD/2016 DATED 30 - 01 - 2018. 2. IN THE MISCELLANEOUS APPLICATION, THE ASSESSEE HAS MAINLY SUBMITT ED THAT THE ASSESSEE WAS ENTITLED FOR EXEMPTION U/S. 54F OF THE ACT AND ASSESSSEE WAS THE ONLY OWNER OF ONE RESIDENTIAL HOUSE AND NOT MORE THAN ONE M.A. NO. 112/AHD/2018 (IN I T A NO . 2743 / A HD/20 16) A SS ESSMENT YEAR 2013 - 14 M.A. NO. 112/AHD / 2018 (IN I.T.A NO. 2743 /AHD/20 16) A.Y. 2013 - 14 PAGE NO SMT. BHAVNA HITESH RAWAL VS. IT O 2 RESIDENTIAL HOUSE AS INCORRECTLY STATED BY THE ITAT IN THE AFORESAID ORDER. THE RELEVANT PART OF THE MISCEL LANEOUS APPLICATION IS REPRODUCED AS UNDER: - 'WE CONSIDERED THAT EXEMPTION U/S. 54F HAS BEEN GRANTED TO THE ASSESSEE WITH A VIEW TO ENCOURAGE CONSTRUCTION OF ONE RESIDENTIAL HOUSE. THE EXEMPTION PROVIDED U/S. 54F WOULD NOT BE AVAILABLE IN CASE WHERE THE AS SESSEE ALREADY OWNED MORE THAN ONE RESIDENTIAL HOUSES. EVEN IF, OTHER RESIDENTIAL HOUSE MAY BE EITHER OWNED BY THE ASSESSEE WHOLLY OR PARTIALLY. UNDER THESE CIRCUMSTANCES, THE ASSESSEE IS NOT ELIGIBLE FOR THE CONCESSION PROVIDED U/S. 54F OF THE ACT. WE HAV E ALSO NOTICED THAT PROVISO TO SECTION 54FOFT HE ACT CL EARLY PROVIDE THAT NO DEDUCTION SHALL BE ALLOWED IF THE ASSESSEE OWNS MORE THAN ONE RESIDENTIAL HOUSE. AFTER CONSIDERING THE ABOVE FACTS AND LEGAL FINDINGS ELABORATED SUPRA IN THIS ORDER, WE ARE OF THE VIEW THAT ID. CIT (A) IS JUSTIFIED IN SUSTAINING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER IN THE CASE OF THE ASSESSEE.' IT IS SUBMITTED THAT AFORESAID FINDINGS IS INCORRECT AND FAR FROM THE FACTS AND APPEARS TO HAVE BEEN DECIDED BY HON'BLE BENCH WITH OUT CONSIDERING THE COMPLETE MATERIALS AND EVIDENCES FILED IN THE PAPER BOOK. 4. WITH UTMOST RESPECT IT IS SUBMITTED THAT WHILE ARRIVING ON THE FINDING OF PARA 7, THE HON'BLE ITAT BENCH HAS OVERLOOKED OR NOT CONSIDERED THE CLINCHING EVIDENCES FILED IN THE PAPER BOOK. IT IS SO PARTICULARLY FELT AS THERE IS NO WHISPER OR MENTION IN THE ORDER PASSED DATED 30/01/2048 ABOUT THE EV IDENCES FILED ON WHICH ATTENTION OF HON'BLE MEMBERS WAS DRAWN AT LENGTH AT THE TIME OF HEARING. 5. IT IS SUBMITTED THAT THE FINDING TH AT ASSESSEE WAS THE OWNER OF MORE THAN ONE HOUSE OWNED WHOLLY OR PARTIALLY IS ALSO ABSOLUTELY INCORRECT FINDING. THE APPELLANT HAS FILED NON REBUTTABLE AND UNCHALLENGED PROOF THAT SHE IS THE OWNER OF ONLY ONE RESIDENTIAL HOUSE AND HER NAME IN THE PROPERTY NAMELY 'PRATIKSHA' WAS ENTERED BY KARTA OF HITESH RAWAL HUF ONLY FOR CONVENIENCE AND AS A MATTER OF GOOD LUCK AND NOTHING MORE. HON'BLE SUPREME COURT IN CASE OF CIT V. PODAR CEMENT PVT. LTD. (TAX REFERENCE: 9 - 10 OF 1986) WHILE DECIDING THE APPEAL AGAINST THE ASSE SSE ON SOME OTHER ISSUE HAS CLEARLY HELD AS UNDER: 'WE ARE CONSCIOUS OF THE SETTLED POSITION THAT UNDER THE COMMON LAW OWNER MEANS A PERSON WHO HAS NOT VALID TITLE LEGALLY CONVEYED TO HIM AFTER COMPLYING WITH THE REQUIREMENTS OF LAW SUCH AS TRANSFE R OF PROPERTY ACT, REGISTRATION ACT N ETC. BUT IN THE CONTEXT OF SECTION 22 OF THE INCOME - TAX ACT HAVING REGARD TO THE GROUND REALITIES AND FURTHER HAVING RE.GARD TO THE OBJECT OF THE INCOME - TAX ACT, NAMELY, 'TO TAX THE INCOME', WE ARE OF THE VIEW, OWNER' IS A PERSON WHO IS ENTITLED TO RECEIVE INCOME FROM THE PROPERTY IN HIS OWN RIGHT'. I N VIEW OF THIS IT IS SUBMITTED THAT APPELLANT WAS THE OWNER OF ONLY ONE RESIDENTIAL HOUSE AND NOT MORE THAN ONE RESIDENTIAL HOUSE AS INCORRECTLY STATED BY HON'BLE ITAT. 6. IT IS THEREFORE PRAYED THAT THE FINDING AND DECISION OF HON'BLE TRIBUNAL IS BASED ON INCORRECT UNDERSTANDING OR BY NOT APPRECIATING THE FACTS AND EVIDENCES FILED ON RECORD. THIS BEING THE MISTAKE APPARENT FROM RECORD AND NEEDS TO BE RECTIFIED BY ADMITTI NG THIS MISCELLANEOUS APPLICATION. IT IS SUBMITTED THAT NON - CONSIDERATION OF THESE SPECIFIC ISSUES RAISED WILL RESULTED INTO GREAT IRREPARABLE LOSS TO THE ASSESSEE. 3. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD CAREFULLY. IT IS NOTI CED THAT IN THE MISC. APPLICATION THE ASSESSE HAS NOT REFERRED THE ENTIRE FINDINGS OF THE ITAT BUT HE QUOTED PARTIAL FINDING OF THE ITAT ON THE ISSUE IN THE APPEAL VIDE ITAT ORDER IT A 2743/AHD/2016 , IT HAS BEEN CATEGORICALLY HELD THAT EVEN IF OTHER RESIDEN TIAL HOUSE MAY BE EITHER OWNED BY T H E ASSESSEE WHOLLY OR PARTIALLY, THE ASSESSE IS NOT ELIGIBLE FOR THE M.A. NO. 112/AHD / 2018 (IN I.T.A NO. 2743 /AHD/20 16) A.Y. 2013 - 14 PAGE NO SMT. BHAVNA HITESH RAWAL VS. IT O 3 CONCESSION PROVIDED U/S. 54F OF THE ACT. IT IS ALSO CLE ARLY STATE D THAT THE DECISION FOR THE HON BLE SUPREME COURT IN THE CASE OF M.J. SHIVANI VS. CIT BANGALORE 2015 53 TAXMAN.COM 318 (SC) IS SQUARELY APPLICABLE TO THE FACT OF THE CASE OF THE ASSESSEE. IT IS ALSO STATED THAT THE JUDICIAL PRONOUNCEMENT REFERRED BY THE COUNSEL OF THE ASSESSEE WERE DISTINGUISHABLE FROM THE FACTS IN THE CASE OF THE ASSESSEE. THE RELEVANT PART OF THE FINDING OF THE ITAT ARE REPRODUCED AS UNDER AS PER PARA 7 OF THE ITAT ORDER. 7. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD CAREFULLY. THE ASSESSING OFFICER NOTICED DURING THE COURSE OF ASSESSMENT PROCEEDINGS THAT AT THE TIME OF PURCHASE OF AFORESAID NEW PROPERTY THE ASSESSEE WAS HAVING OWNERSHIP OF TWO RESIDENTIAL HOUSES,THEREFORE, NO EXEMPTION U/S. 54F IS AVAILABLE TO THE ASSESSEE. SECTION 54F OF THE ACT PROVIDES FOR EXEMPTION OF LONG TERM CAPITAL GAIN ON THE TRANSFER OF ANY ASSET IF THE NET SALE CONSIDERATION IS RE - INVESTED IN ACQUISITION OF A RESIDENTIAL HOUSE. ONE OF THE CONDITION IN ORDER TO CLAIM THE BENEFIT OF THIS EXEMPTION IS THAT ON THE DATE OF ACQUISITION OF THE ASSET, THE ASSESSEE SHOULD NOT OWN MORE THAN ONE RESIDENTIAL HOUS ES. IN THE CASE OF THE ASSESSEE, SHE HAS JOINTLY OWNED TWO RESIDENTIAL HOUSES AND THE QUESTION ARISES WHETHER THE HOUSE WHICH ARE JOINTLY OWNED BE REGARDED AS A HOUSE WHICH IS OWNED BY THE ASSESSEE. IN THIS CONNECTION, WE HAVE PERUSED THE JUDICIAL PRONOU NCEMENTS REFERRED BY THE LD. COUNSEL AND OBSERVED THAT FACTS OF THIS JUDICIAL PRONOUNCEMENTS WERE DISTINGUISHABLE FROM THE FACTS IN THE CASE OF THE ASSESSEE. IN ADDITION TO THIS , WE OBSERVED THAT THE FINDINGS LAID DOWN IN THE DECISION OF HON BLE SUPREME C OURT IN THE CASE OF M.J. SHIVANI VS. CIT, BANGALORE 2015 53 TAXMANN.COM 318 (SC) ARE SQUARELY APPLICABLE TO THE FACT OF THE CASE OF THE ASSESSEE. WE FIND THAT IN THE AFORESAID DECISION OF THE HON BLE APEX COURT, IT WAS HELD THAT WHERE ASSESSEE ON DATE OF SALE OF LONG - TERM ASSES OWNS MORE THAN ONE RESIDENTIAL HOUSE EVEN JOINTLY WITH ANOTHER PERSON, THE BENEFIT U/S. 54F ARISING FROM SALE OF ASSET WAS TO BE REJECTED. WE CONSIDERED THAT EXEMPTION U/S. 54F HAS BEEN GRANTED TO THE ASSESSEE WITH A VIEW TO ENCOU RAGE CONSTRUCTION OF ONE RESIDENTIAL HOUSE. THE EXEMPTION PROVIDED U/S. 54F WOULD NOT BE AVAILABLE IN A CASE WHERE THE ASSESSEE ALREADY OWNED MORE THAN ONE RESIDENTIAL HOUSES. EVEN IF, OTHER RESIDENTIAL HOUSE MAY BE EITHER OWNED BY THE ASSESSEE WHOLLY OR PARTIALLY. UNDER THESE CIRCUMSTANCES, THE ASSESSEE IS NOT ELIGIBLE FOR THE CONCESSION PROVIDED U/S. 54F OF THE ACT. WE HAVE ALSO NOTICED THAT PROVISO TO SECTION 54F OF THE ACT CLEARLY PROVIDE THAT NO DEDUCTION SHALL BE ALLOWED IF THE ASSESSEE OWNS MORE THAN ONE RESIDENTIAL HOUSE. AFTER CONSIDERING THE ABOVE FACTS AND LEGAL FINDINGS ELABORATED SUPRA IN THIS ORDER, WE ARE OF THE VIEW THAT LD. CIT(A) IS JUSTIFIED IN SUSTAINING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER IN THE CASE OF THE ASSESSEE. THE REFORE, WE DO NOT FIND ANY REASON TO INTERFERE IN THE FINDINGS OF THE LD. CIT(A). ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS REJECTED. | AFTER GOING THROUGH THE MISC. APPLICATION OF THE ASSSESSEE, WE OBSERVE IT IS PERTINENT TO MENTION THAT THE POWER OF RECTIFICATION UNDER SECTION 254(2) OF THE ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS PATENT MISTAKE, WHICH IS APPARENT FROM THE RECORD AND NOT A MISTAKE WHICH IS REQUIRED TO BE ESTABLISHED BY ARGUMENTS AND LON G DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. IN VIEW OF THE ABOVE AND AFTER CONSIDERING THE DETAILED FINDINGS OF THE CO ORDINATE BENCH IN THE CASE OF THE M.A. NO. 112/AHD / 2018 (IN I.T.A NO. 2743 /AHD/20 16) A.Y. 2013 - 14 PAGE NO SMT. BHAVNA HITESH RAWAL VS. IT O 4 ASSESSEE, WE DO NOT FIND ANY MERIT IN THE MISC. APPLICATION OF THE ASSESSEE, THEREFORE, THE SAME IS DISMISSED. 4. IN THE RESULT, THE M.A. OF THE ASSESSEE IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 14 - 05 - 201 9 S D / - SD/ - ( MAHAVIR PRASAD ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 14 /05 /2019 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,