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Brij Bhushan Tayal Versus ACIT, Circle 19 (1) , New Delhi

2016 (11) TMI 67 - ITAT DELHI

Computation Long Term Capital Gain - Rs. NIL filed by the assessee - withdrawing exemption of under section 54 claimed by the assessee - cost of indexation reduced - Held that:- As in the present case, assessee has sold the property in the next year in AY 2010-11 and withdrew the exemption claimed of ₹ 7,30,538/-in AY 2009-10 and reduced the same from the cost of acquisition claimed in AY 2010-11. Therefore, the impact of the above action of the assessee is that assessee has taxed the amou .....

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I.T.A. No. 3272/DEL/2014 - Dated:- 13-10-2016 - Shri H. S. Sidhu, Judicial Member Assessee by : Sh. Ved Jain, Adv. & Sh. Ashish Goel, CA Department by : None ORDER Per H. S. Sidhu, JM Assessee has filed the Appeal against the Order dated 28.3.2014 passed by the Ld. Commissioner of Income Tax (Appeals)-V, New Delhi pertaining to assessment year 2009-10. 2. The grounds raised by the assessee read as under:- 1. On the facts and circumstances of the case, the order passed by the learned Commiss .....

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3,00,000/- only as cost of acquisition for the purpose of indexation as against 3,72,040/- actually incurred and allowable under the provisions of the Act. 4(I) On the facts and circumstances of the case, the Learned CIT(A) has erred both on facts and in law in upholding the action of the AO in not allowing the benefit of ₹ 7,30,539/- being the amount invested in the purchase of the property as eligible under Section 54 of the Act. (ii) That the contention of the appellant has been reject .....

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of the assessee and Son of the assessee attended the assessment proceedings from time to time. Necessary details / information as called for have been filed by the assessee which were examined by the AO. The assessee is engaged in the manufacturing and resale of hosiery goods. The assessee during the year derived income from business, income from house property and income from other sources. During the assessee has declared a gross profit of ₹ 1,32,13,389/- on the total turnover of ₹ .....

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further submitted that there is constant increase in the NP rate. The assessee also produced books of accounts and relevant bills and vouchers in support of expenses debited into profit and loss account which have been test checked. The assessee also maintained necessary records of income derived and supporting details thereof were also filed. Thereafter, after perusing the details, the AO assessed the income at ₹ 30,70,880/- u/s. 143(3) of the I.T. Act, 1961 on 27.5.2011. 4. Against the a .....

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A) under section 250 of the Income Tax Act dated. 28.3.2014. 2. The Issue involved in the present appeal is regarding computation Long term capital gain of ₹ 8,35,564/- as against Rs. NIL filed by the assessee by withdrawing exemption of ₹ 7,30,539/- under section 54 claimed by the assessee and reducing the cost of indexation by ₹ 72,040/- 3. During the year under consideration assessee has filed ROI declaring total income of ₹ 20,99,070/- on 28.9.2009 and same is assesse .....

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inst the sale consideration of ₹ 18,10,000/-. 5. Assessee has invested the amount of ₹ 12,07,539 in two residential properties:- i. Purchase of Residential House in AG-587, Shalimar 8agh with 50% share of his son ₹ 4,77,000/- ii. Purchase. of Plot No. 114 in Omaxe Plot in Omaxe City Sonepat-A Residential Plot ₹ 7 30 539/-Rs. 12,07,539/- 6. Total cost of acquisition claimed by the assessee is ₹ 3,72,040/- which includes purchase cost of ₹ 3,00,000/-, ₹ 60 .....

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erally incurred to get the property as well as to get the property in own name. 7. Further. during the assessment proceedings Ld. AO issued a show cause as to restricting the exemption only to the extent of amount invested in Residential House i.e., of ₹ 4,77,000/- as section 54 specially mentioned that investment shall be made in residential house and not in residential plot. 8. Assessee placed his reliance on the circular No. 667 dated.18.10.1993 issued by CBOT wherein it has been stated .....

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.5 Para 2nd) 10. However, learned AO ignoring the impact of the above sale in the subsequent year disallow the exemption claimed u/s 54 by ₹ 7,30,539/- 11. Aggrieved by the order of the learned AO assessee preferred an appeal before the Learned CIT(A). 12.Learned CIT(A) has confirmed the addition made by the AOon different footing and issued a show cause notice to the assessee to restrict the exemption only to the extent of one residential house as section 54 contains the words 'a resi .....

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"residential purchased by the assessee was too old and renovation charges were necessary too make the property in use cannot be ignored and brokerage charges are generally incurred to get the property as well as to get the property in own name. 7. Further. during the assessment proceedings Ld. AD issued show cause as to restricting the exemption only to the extent of amount invested in Residential House i.e., of ₹ 4,77,000/- as section 54 specially mentioned that investment shall be .....

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ears specified uls 54 and therefore withdrew the exemption claimed uls 54 in AY 2008-09 by paying tax on the same in AY 2009-10 during the year the amount received.(pg.5 Para 2nd) 10. However, learned AD ignoring the impact of the above sale in the subsequent year disallow the exemption claimed uls 54 by ₹ 7,30,539/- 11. Aggrieved by the order of the learned AD assessee preferred an appeal before the Learned CIT(A). 12. Learned CIT(A) has confirmed the addition made by the AD on different .....

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sion used is not "a residential unit". This is a new concept introduced by the assessing officer into the section. Section 54/54F requires the assessee to acquire a "residential house" and so long as the assessee acquires a building, which may be constructed, for the sake of convenience, in such a manner as to consist of several units which can, if the need arises, be conveniently and independently used as an independent residence, the requirement of the Section should be tak .....

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ments. Most of the houses are constructed according to the needs and requirements and even compulsions. For instance, a person may construct a residential house in such a manner that he may use the ground floor for his own residence and let out the first floor having an independent entry so that his income is augmented. It is quite common to find such arrangements, particularly post-retirement. One may build a house consisting of four bedrooms (all in the same or different floors) in such a mann .....

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ructing a residential house. We are therefore, unable to see how or why the physical structuring of the new residential house, whether it is lateral or vertical, should come in the way of considering the building as a residential house. We do not think that the fact that the residential house consists of several independent units can be permitted to act as an impediment to the allowance of the deduction under Section 54/54F. It is neither expressly nor by necessary implication prohibited. For th .....

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veral individual units which have been constructed in the manner that they have independent entrance but in case of future need they can be used as a composite independent house and therefore confirm the disallowance made by the assessee.{Pg.21 Last para) 15. However, it is pertinent to note that judgement of Gita Duggal (supra) has made it very clear in para 8 of the order and the 'a' does not mean singular. Judgement of Karnataka HC CIT vs D. Ananda 8asappa (2009) 309 ITR 329 has been .....

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Taxman publication. The judgment of the Kamataka High Court supports the contention of the assessee. An identical contention raised by the revenue before that Court was rejected in the following terms: "A plain reading of the provision of section 54(1) of the Income-tax Act discloses that when an individual-assessee or Hindu undivided family- assessee sells a residential building or lands appurtenant thereto, he can invest capital gains for purchase of residential building to seek exemption .....

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o indicate a singular number. The combined reading of sections 54(1) and 54F of the Income-tax Act discloses that, a non residential building can be sold, the capital gain of which can be invested in a residential building to seek exemption of capital gain tax. However, the proviso to section 54 of the Income-tax Act, lays down that if the assessee has already one residential building, he is not entitled to exemption of capital gains tax, when he invests the capital gain in purchase of additiona .....

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ce of 'a residential house' w.e.f. 1-4-2015. The memorandum explaining the finance bill reads as under: "CAPITAL GAINS EXEMPTION IN CASE OF INVESTMENT IN A RESIDENTIAL HOUSE PROPERTY The existing provisions contained in sub-section (1) of section 54, inter alia, provide that where capital gain arises from the transfer of a long-term capital asset, being buildings or lands appurtenant thereto, and being a residential house, and the assessee within a period of one year before or two y .....

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riod of one year before or two years after the date of transfer, purchases, or within a period of three years after the date of transfer constructs, a residential house then the portion of capital gains in the ratio of cost of new asset to the net consideration received on transfer is not chargeable to tax. The benefit was intended for investment in one residential house within India. Accordingly, it is proposed to amend the aforesaid sub-section (1) of section 54 so as to provide that the rollo .....

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This fact clearly shows that the intention of legislature before 1.4.2015 was not to restrict the exemption to one residential property only and therefore investment could be made in multiple residential properties before 1.4.2015. 19.This issue came up before ITAT Mumbai in the case of Niles.h Pravin Vora and Vatin P.ravin Vora (Legal Heirs of Late Pravin Laxmidas Vora) Vs ITO 2016 (5) TMI 64 and it has been held that held that exemption u/s 54F will be allowed for purchase of more than one re .....

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April 1, 2015, which makes it clear that benefit of section 54F will be applicable to one residential house in India. Prior to the amendment it was clear that a residential house would include multiple residential units. 20. Further as per the provisions of section 54 it cannot be denied that the new residential House Property purchased / constructed should not be transferred within a period of 3 years from the date of transfer. If the new property is transferred within a period of 3 years from .....

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on transfer of the new house, the amount of capital gain claimed as exempt under section 54 will be deducted from the cost of acquisition of the new house. 21. In the present case, assessee has sold the property in the next year in AY 2010-11 and withdrew the exemption claimed of ₹ 7,30,538/-in AY 2009-10 and reduced the same from the cost of acquisition claimed in AY 2010-11. (Please refer PB Pg. 26.) 22. The impact of the above action of the assessee is that assessee has taxed the amount .....

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as sent, despite the same, the Ld. DR not appeared to prosecute the matter in dispute, nor filed any application for adjournment by the Department. Keeping in view the facts and circumstances of the present case and the issue involved in the present Appeal, I am of the view that no useful purpose would be served to issue notice again and again to the Revenue, therefore, I am deciding the present appeal exparte qua Revenue, after hearing the Ld. Counsel of the assessee and perusing the records. 8 .....

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54 claimed by the assessee and reducing the cost of indexation by ₹ 72,040/- 8.2 I find that during the year under consideration assessee has sold a property at AG/270, Shalimar Bagh, Delhi for the sale consideration of ₹ 18,10,000 which was purchase in the financial year 1998-99 for ₹ 3,72,0401-. Assessee has shown if capital gain of Rs. Nil by claiming indexed cost of acquisition of ₹ 6,11,022/- and exemption under section 54 being investment in residential property of .....

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7; 3,00,000/-, ₹ 60,000/- in respect of renovation and brokerage expenses and ₹ 12,040 towards professional charges which were incurred to transfer the property in the assessee's name. However, out of the above ₹ 72,040 was not allowed by the AO in the absence of documentary evidences and same was confirmed by the CIT(A). The fact that the property purchased by the assessee was too old and renovation charges were necessary too make the property in use cannot be ignored and .....

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wherein it has been stated that cost of land is the integral part of cost of residential house and therefore exemption will be available for the purchase of plot also. 8.6 It was further seen that the assessee has sold the property of Omaxe Plot No. 114 in the FY 2009-10 i.e., before the holding period of three years specified u/s 54 and therefore withdrew the exemption claimed u/s 54 in AY 2008-09 by paying tax on the same in AY 2009-10 during the year the amount received. 8.7. However, AO igno .....

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Hon'ble High Court of Delhi in the case of CIT Vs Geeta Duggal 357 ITR 153 (2013) has dealt with similar situation wherein it has been held as under:- "9. There could also be another angle. Section 54/54F uses the expression "a residential house". The expression used is not "a residential unit". This is a new concept introduced by the assessing officer into the section. Section 54/54F requires the assessee to acquire a "residential house" and so long as th .....

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ercial use. If there is nothing in the section which requires that the residential house should be built in a particular manner, it seems to us that the income tax authorities cannot insist upon that requirement. A person may construct a house according to his plans and requirements. Most of the houses are constructed according to the needs and requirements and even compulsions. For instance, a person may construct a residential house in such a manner that he may use the ground floor for his own .....

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hey are nearby, an arrangement which can be mutually supportive. He may construct his residence in such -a manner that in case of a future need he may be able to dispose of a part thereof as an independent house. There may be several such considerations for a person while constructing a residential house. We are therefore, unable to see how or why the physical structuring of the new residential house, whether it is lateral or vertical, should come in the way of considering the building as a resi .....

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learned CIT has drawn the adverse conclusion that the substance of the judgement is that the expression" a residential house" should not be literally taken as a single unit or a single flat and that the deduction should be extended t a residential house consisting of several individual units which have been constructed in the manner that they have independent entrance but in case of future need they can be used as a composite independent house and therefore confirm the disallowance mad .....

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see strongly relies upon the judgment of the Kamataka High Court (supra) which, it is stated, has become final, the special leave petition filed by the revenue against the said decision having been dismissed by the Supreme Court as reported in the annual digest of Taxman publication. The judgment of the Kamataka High Court supports the contention of the assessee. An identical contention raised by the revenue before that Court was rejected in the following terms: "A plain reading of the prov .....

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l house would mean one residential house and it does not appear to the correct understanding The expression "a" residential house should be understood in a sense that building should be of residential in nature and "a" should not be understood to indicate a singular number. The combined reading of sections 54(1) and 54F of the Income-tax Act discloses that, a non residential building can be sold, the capital gain of which can be invested in a residential building to seek exem .....

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lhi HC in the case of CIT Vs Geeta Duggal (Supra) is affirmed by the Supreme court (2015) 228 Taxman 62 (SC). I also find that this issue came up before ITAT Mumbai in the case of Niles.h Pravin Vora and Vatin P.ravin Vora (Legal Heirs of Late Pravin Laxmidas Vora) Vs ITO 2016 (5) TMI 64 and it has been held that held that exemption u/s 54F will be allowed for purchase of more than one residential unit as the amendment to section 54F is effective form 1.4.2015. "6. The facts being similar, .....

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