RAKESH GARG, Jaipur V. ITO, Jaipur

MA 139/JPR/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2878 (ITAT-JAIPUR)
• Duration Of Justice: 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 12-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S NEHRA JCIT DHK
• Keywords: Rectification of order; Cost of acquisition; Corroborative evidences
• Section: 54F

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM M.A. NO. 139/JP/2018 ( ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 1100/JP/2016) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12. SHRI RAKESH GARG, 140, JAI JAWAN COLONY-II TONK ROAD, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD 5(4), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AEOPG 1922 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI A.S. NEHRA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 02.11.2018. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 02/11/2018. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSESS EE IS SEEKING RECTIFICATION OF MISTAKE IN THE ORDER OF THE TRIBUNAL DATED 13 TH SEPTEMBER, 2018 TO THE EXTENT OF NON ADJUDICATION OF GROUND NO. 2.1. 2. WE HAVE HEARD THE LD. A/R AS WELL AS THE LD. D/R AND CAREFULLY PERUSED THE IMPUGNED ORDER OF THE TRIBUNAL. THE ASSESSEE HAS R AISED AN ISSUE OF DISALLOWANCE OF DEDUCTION UNDER SECTION 54F UNDER GROUNDS NOS. 2 AN D 2.1. THE TRIBUNAL IN THE IMPUGNED ORDER HAS DECIDED GROUND NO. 2 IN PARA 9 A S UNDER :- 2 MA NO. 139/JP/2018 SHRI RAKESH GARG, JAIPUR. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS THE RELEVANT MATERIAL ON RECORD. AS PER THE DETAILS OF THE THREE PROPERTIES IN WHICH THE ASSESSEE HAS CLAIMED TO HAVE INVESTED SALE CONSIDERATION OF THE LAND IN QUESTION, ONLY ONE PROPERTY I.E. AT SL. NO. 1 OF THE LIST REPRODUCED IN PARA 6 ABOVE IS A CONSTRUCTED HOUSE AND TWO OTHERS ARE ONLY THE PLOTS OF LAND. FURTHER, AS IT IS EVIDENT F ROM THE DETAILS THAT THESE THREE PROPERTIES ARE SITUATED IN DIFFERENT PA RTS OF THE JAIPUR CITY AND ARE NOT ADJOINING TO EACH OTHER. THEREFORE, EVE N OTHERWISE ALL THREE RESIDENTIAL PLOTS CANNOT BE USED AS A SINGLE RESIDENTIAL HOUSE AS THESE ARE NOT CONTIGUOUS OR CAN BE CONVENIENTLY USE D BY TREATING THE SINGLE RESIDENTIAL HOUSE AS PER THE NEEDS OF THE AS SESSEE. EVEN OTHERWISE, ASSESSEE HAS NOT CLAIMED THAT SEPARATE P ROPERTIES WERE PURCHASED AS PER THE REQUIREMENT OF THE FAMILY AS T HE ASSESSEE HAS CONSTRUCTED ONLY ONE STRUCTURE OF A HOUSE AND THE O THER TWO PROPERTIES ARE ONLY THE PLOTS OF LAND. THOUGH THE ASSESSEE HA S ERECTED A BOUNDARY WALL ON ONE OF THE PLOTS BUT THE SAME WOUL D NOT CONSTITUTE THE CONSTRUCTION OF A HOUSE. THEREFORE, WHEN THESE THREE SEPARATE PROPERTIES CANNOT BE REGARDED AS A SINGLE RESIDENTI AL HOUSE IN VIEW OF THEIR LOCATIONS AT DIFFERENT PARTS OF THE CITY AND TWO OF WHICH ARE ONLY THE PLOTS OF LAND, THEREFORE, THE DECISIONS RELIED UPON BY THE ASSESSEE WILL NOT HELP THE CASE OF THE ASSESSEE SO FAR AS TH E TREATMENT OF THREE DIFFERENT PROPERTIES AS A SINGLE RESIDENTIAL HOUSE. THE LD. CIT (A) HAS CONSIDERED THIS ISSUE IN PARA 3.3 AS UNDER :- 3.3. I HAVE PERUSED THE FACTS OF THE CASE, THE AS SESSMENT ORDER AND THE SUBMISSIONS OF THE APPELLANT. AS REGA RDS INVESTMENTS MADE UNDER SECTION 54F OF THE I.T. ACT, 1961 THE ASSESSEE HAS GIVEN A LIST OF THREE PROPERTIES IN TH REE DIFFERENT AREAS OF JAIPUR. THE ASSESSING OFFICER HELD THAT TH E DEDUCTION WAS ADMISSIBLE ON ONE RESIDENTIAL HOUSE AND RESTRIC TED THE SAME TO THE PROPERTY AT PLOT NO. 79, VIVEK VIHAR, JAGATP URA SINCE IT WAS THE ONLY CONSTRUCTED HOUSE AND THE OTHER TWO PR OPERTIES WERE ONLY PLOTS. FURTHER THE AUTHORIZED REPRESENTAT IVE PLACED RELIANCE ON A NUMBER OF JUDGMENTS BUT THE SAME ARE DISTINGUISHABLE BECAUSE IN ALL THOSE CASES THE ASSE T PURCHASED 3 MA NO. 139/JP/2018 SHRI RAKESH GARG, JAIPUR. WAS A CONSTRUCTED RESIDENTIAL HOUSE AND THE ISSUE W AS REGARDING WHETHER TWO OR MORE UNITS IN THE SAME COMPLEX COULD BE CONSIDERED FOR THE DEDUCTION. IN THE ASSESSEES CA SE THERE IS ONLY ONE CONSTRUCTED HOUSE AND THE OTHER TWO ARE PL OTS AND THAT TWO IN DIFFERENT AREAS, THEREFORE, THE DEDUCTION HA S BEEN CORRECTLY ARRIVED AT BY THE ASSESSING OFFICER. ASS ESSING OFFICER HAS PLACED RELIANCE ON THE DECISION OF HONBLE PUNJ AB & HARYANA HIGH COURT IN THE CASE OF PAWAN ARYA VS. CIT 2011-I TOL-01-HC- P&T IT. THIS GROUND OF APPEAL IS DISMISSED. THUS THE LD. CIT (A) HAS FOLLOWED THE DECISION OF H ONBLE PUNJAB & HARYANA HIGH COURT IN CASE OF PAWAN ARYA VS. CIT (S UPRA) WHICH IS DIRECTLY ON THE ISSUE. FURTHER, THE INCENTIVE FOR GRANTING THE DEDUCTION UNDER SECTION 54F OF THE ACT IS FOR INVESTMENT IN T HE RESIDENTIAL HOUSE OF THE ASSESSEE WHICH MEANS THAT THE INVESTMENT IS MADE FOR OWN RESIDENTIAL REQUIREMENT OF THE ASSESSEE AND NOT FUT URE INVESTMENT IN THE PROPERTY. THEREFORE, IN THE ABSENCE OF ANY MAT ERIAL TO SHOW THAT THE THREE DIFFERENT PROPERTIES WERE PURCHASED TO ME ET THE RESIDENTIAL REQUIREMENT OF THE FAMILY OF THE ASSESSEE, THE CLAI M OF THE ASSESSEE CANNOT BE ACCEPTED. IT IS AGAINST THE SCHEME AND O BJECT OF THE SECTION 54F OF THE ACT WHICH PROVIDES THE DEDUCTION IN RESP ECT OF THE INVESTMENT MADE FOR PURCHASE OF RESIDENTIAL HOUSE F OR ASSESSEES OWN REQUIREMENT. IN VIEW OF THE ABOVE FACTS AND CIRCUM STANCES OF THE CASE, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDERS OF THE AUTHORITIES BELOW, QUA THIS ISSUE. THUS IT IS CLEAR THAT THE ISSUE OF ELIGIBILITY OF D EDUCTION UNDER SECTION 54F OF THE ACT IN RESPECT OF THE INVESTMENTS MADE IN MORE THAN ONE HOUSE WAS DECIDED AGAINST THE ASSESSEE AND IN FAVOUR OF THE REVENUE. HOWEVER, IN THE GROUND NO. 2.1 THE ASSESSEE HAS ALSO RAISED THE ISSUE THAT THE DEDUCTION ALLOWE D BY THE AO IN RESPECT OF INVESTMENT IN ONE HOUSE IS ALSO LESS THAN THE ACTUA L COST OF ACQUISITION AND IMPROVEMENT/CONSTRUCTION. THE LD. A/R HAS POINTED OUT THAT THIS ISSUE WAS RAISED 4 MA NO. 139/JP/2018 SHRI RAKESH GARG, JAIPUR. BEFORE THE LD. CIT (A) AND THE LD. CIT (A) HAS REPR ODUCED THE DETAILS OF TOTAL COST OF ACQUISITION AND CONSTRUCTION OF THE HOUSE AT RS. 19 ,77,450/- WHEREAS THE AO HAS ALLOWED THE DEDUCTION AGAINST THE INVESTMENT OF RS. 14,67,670/-. THEREFORE, THE EXPENDITURE OF RS. 4,84,000/- CLAIMED TO HAVE BEEN INCURRED ON CONSTRUCTION OF THE HOUSE, REGISTRATION CHARGES OF RS. 21,067/- AND PAY MENT TO DEED WRITER OF RS. 4,713/- HAVE NOT BEEN CONSIDERED BY THE AO WHILE AL LOWING THE DEDUCTION UNDER SECTION 54F. THE LD. CIT (A) HAS ALSO NOT CONSIDER ED THE SAID EXPENDITURE INCURRED BY THE ASSESSEE ON CONSTRUCTION, REGISTRATION CHARG ES AND PAYMENT TO DEED WRITER. HENCE, IT WAS PLEADED THAT THE GROUND NO. 2.1 OF TH E ASSESSEES APPEAL MAY BE ADJUDICATED. 3. ON THE OTHER HAND, THE LD. D/R HAS OBJECTED TO T HE MISCELLANEOUS APPLICATION AND SUBMITTED THAT THE AO AS WELL AS THE LD. CIT (A ) DISALLOWED THIS CLAIM OF CONSTRUCTION ON THE GROUND THAT THE ASSESSEE HAS NO T FURNISHED THE RELEVANT DETAILS AND SUPPORTING EVIDENCE. 4. WE FIND THAT THE TRIBUNAL WHILE PASSING THE IMPU GNED ORDER HAS NOT ADJUDICATED THIS ISSUE RAISED IN GROUND NO. 2.1 REG ARDING THE CLAIM OF DEDUCTION UNDER SECTION 54F IN RESPECT OF THE ALLEGED EXPENDI TURE ON CONSTRUCTION OF HOUSE, REGISTRATION CHARGES AND PAYMENT TO DEED WRITER. SO FAR AS THE REGISTRATION CHARGES ARE CONCERNED, THIS IS A MATTER OF RECORD AND, THER EFORE, THERE CANNOT BE ANY DISPUTE ABOUT THE SAID EXPENDITURE. HOWEVER, THE OTHER TWO CLAIMS OF EXPENDITURE NEED A PROPER VERIFICATION AND EXAMINATION. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE MODIFY THE IMPUGNED ORDER AND DIRECT T HE AO TO VERIFY THESE CLAIMS OF EXPENDITURES INCURRED IN RESPECT OF CONSTRUCTION OF HOUSE, REGISTRATION CHARGES AND PAYMENT TO DEED WRITER FOR THE PURPOSE OF ALLOWING THE DEDUCTION UNDER SECTION 54F 5 MA NO. 139/JP/2018 SHRI RAKESH GARG, JAIPUR. IN RESPECT OF THE RESIDENTIAL HOUSE NO. 79, VIVEK V IHAR, JAGATPURA, JAIPUR. ACCORDINGLY, THE AO HAS TO ADJUDICATE THE ISSUE AFT ER ALLOWING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. RESULTANTLY, GROUND NO. 2 .1 OF THE ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 02/11/2 018. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 02/11/2018. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI RAKESH GARG, JAIPUR. 2. THE RESPONDENT THE ITO, WARD 5(4), JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (MA NO. 139/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 6 MA NO. 139/JP/2018 SHRI RAKESH GARG, JAIPUR.