9911796707
TMI Blog2013 (1) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Briefly stated, the facts of the case giving rise to this appeal are that the assessee's return was processed u/s 143(1) of the Income Tax Act (for short the Act) and subsequently picked up for scrutiny in view of Board's instructions as the assessee raised secured and unsecured loans exceeding Rs. 10 lakh. After affording due opportunity of hearing to the assessee, the assessment was completed to the total taxable income of Rs.16,15,000. The Assessing Officer made certain additions pertaining to excess indexed cost of construction by disallowing claim of exemption u/s 54F of the Act, by making addition u/s 46A(3) of the Act related to the creditors. The assessee filed an appeal before the Commissioner of Income Tax(A), Hisar, which was partly allowed on the ground of investment in construction of house out of income from undisclosed sources and making of addition as capital gain to the taxable income of the assessee. However, the Commissioner of Income Tax(A), Rohtak, partly disallowed the appeal pertaining to addition made u/s 68 of the Act by upholding the addition made by the Assessing Officer. Now, the revenue is in appeal before this Tribunal. Ground no.3 4. Apropos gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same, yet in terms of rule 46A(3) the additional evidence is admitted for deciding the issue involved; however, as regard the investment in purchase and construction of the residential building thereon, the Assessing Officer may take appropriate action because it falls in the A.Y.2007-08." 7. In view of above discussion made by the ld. Commissioner of Income Tax(A), we observe that he has considered and discussed the version of the Assessing Officer pertaining to additional evidence, therefore, in view of above discussion, we are unable to support the contention of the revenue that the Commissioner of Income Tax(A) did not follow the procedure laid down in Rule 46A of the Rules. As far as consideration of additional evidence is concerned, the Commissioner of Income Tax(A) enjoys the powers provided by the Statute in this regard. The Commissioner of Income Tax(A) rightly relied on the judgment of Hon'ble Apex Court in the case of Kanpur Coal Syndicate (supra) and Jute Corporation of India (supra). Ground No.1 8. Apropos ground no.1, the ld. DR submitted that the Assessing Officer after due consideration of the facts and circumstances of the case and careful perusal of the capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of above proviso (b), the action of the Assessing Officer was wrong and he rightly deleted the addition. As per foregoing discussion, we have no reason to interfere with the impugned order in this regard. Accordingly, ground no.1 is dismissed. Ground no.2 13. Apropos ground no.2, the ld. DR submitted that the Commissioner of Income Tax(A) deleted the addition made by the Assessing Officer amounting to Rs.12,53,500 on account of capital gain. He further submitted that the assessee failed to produce any supporting evidence regarding construction of house no. 634, Sector 14P, Hisar and deposits of capital gains raised on the sale of old house. He also submitted that the Commissioner of Income Tax(A) ignored the fact that on the other hand, the assessee is selling and purchasing various properties without offering financial details of the transaction to the revenue department. 14. The assessee's representative replied that the ld. Commissioner of Income Tax(A) did not decide the issue related to this ground and he directed the Assessing Officer to take appropriate action in AY 2007-08. He further submitted that in view of above directions of the Commissioner of Income Tax(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that, Plot No. 939, Sector 14P, Hissar measuring 500 Sq. Yrds. had been sold on 26.03.2007. In this regard, he has failed to appreciate that, assessee prior to the sale of plot on 26.03.2007, had already purchased another plot no. 634, Sector 14P, Hissar on 23.12.2005 measuring 250 sq. yrds for a consideration of Rs. 6,75,000/- and, thereafter incurring expenditure of Rs. 10,26,365/- had constructed the residential house. It may be submitted here that, appellant had purchased a smaller plot area of 250 sq. yrds as the appellant did not have enough funds to construct a residential house on an area of 500* sq. yrds. However, it cannot be disputed that, assessee always intended to construct residential house and, claim deduction u/s 54 of the Act. In fact, in almost identical circumstances, claim of deduction u/s 54 of the Act was allowed by Hon 'ble Tribunal in the case of reported in 85 TTJ 173 (Jodh), when it was held as under: "The clear-cut of the case of the assessee is that the assessee had invested an amount of Rs.4,01,000. The fact that the purchase price and taking possession of the flat at Lodha Tower, Jodhpur by 30th March, 1996 when the plot at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... residential house then no capital gain is chargeable to tax. In the instant case, the assessee has undisputedly constructed a residential house within a period of three years from the transfer of the original asset and therefore, the assessee is eligible to deduction under section 54 of the Act. 5.2 However, the aforesaid claim is subject to the provisions contained in section 54 sub section (2) of the Act in as much as if the amount of capital gain which is not appropriated by the assessee towards the purchase of a new asset made within one year before the date on which, the transfer of the original asset took place or which is not utilized by him for the purchase or construction of the new asset before the date of furnishing of return of income under Section 139 of the Act, it shall be deposited by him before furnishing such return in any bank account in accordance with the scheme which the Central Government has prescribed by notification in the official Gazette. In other words, in the instant case, since the plot for the purchase of the new asset had been purchased on 23.12.2005 i.e. after due date of filing of return of income, the assessee according to su ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
