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2017 (7) TMI 568 - ITAT CHANDIGARH

2017 (7) TMI 568 - ITAT CHANDIGARH - Tmi - Disallowance of benefit to the assessee under section 54F - Held that:- The date of agreement to sell as the date of sale of asset, we consider it fit to restore the issue back to the file of the Ld. CIT (Appeals) to examine the documents now produced by the assessee and adjudicate the issue in the light of the decisions cited by the assessee and in accordance with law. We may add that the assessee be granted due opportunity of hearing. Appeal of the as .....

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1. That the order passed under section 250(6) by the Ld. Commissioner of Income Tax (Appeals)-2, Chandigarh in Appeal No.396/12-13 dated 24.02.2015 is contrary to law and facts of the case. 2. That in the facts and circumstances of the case, the Ld. Commissioner of Income Tax (Appeals) gravelly erred in upholding the action of the Id. Assessing Officer in disallowing the benefit to the appellant under section 54F of ₹ 53,63,363/-. 3. That in the in facts and circumstances of the case the .....

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ssee under section 54F of the Income Tax Act, 1961 (in short the Act ). 4. Brief facts relating to the case are that the assessee had declared long term capital gain on sale of asset in March, 2010 and claimed deduction under section 54F of the Act of ₹ 53,63,363/-. The Assessing Officer noticed that on the date of transfer of the asset the assessee owned two residential properties namely House No.85, Phase-9, Mohali and House 939/1. Sector 40, Chandigarh and so was not entitled to deducti .....

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gwith other corroborative evidences, but the assessee could not produce any document to support his claim and so the Assessing Officer disallowed the deduction claimed under section 54 of the Act. 5. Aggrieved by the same the assessee filed an appeal before the Ld. CIT (Appeals). During the course of hearing before the Ld. CIT (Appeals), the assessee submitted additional evidence being the agreement to sell the impugned property dated 3.2.2010 and drew attention to clause-C of the agreement whic .....

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F of the Act. The Ld. CIT (Appeals) dismissed the ground raised by the assessee by holding that in the first place the evidence submitted by the assessee before him was an additional evidence and since no application for admission of the same under Rule 46A of the Act had been filed by the assessee, nor had the assessee explained reasons for non-filing this document before the Assessing Officer, the same could not be considered at this stage. The Ld. CIT (Appeals) further stated that even if the .....

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held that the assessee had failed to fulfill the condition specified under section 54F of the Act, of being the owner of only one residential house as on the date of sale of original asset, for the purpose of claiming deduction there-under and, therefore, accordingly, confirmed the order of the Assessing Officer in this regard. 6. Aggrieved by the same, the assessee has come up in appeal before us raising grounds against the denial of admission of additional evidence filed before the Ld. CIT (A .....

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application that the documents now filed in the shape of agreement to sell, Power of Attorney and copy of Will in respect of sale of House No.939/1, Sector 40-A, Chandigarh were necessary for deciding the issue at hand and went to the root of the matter to prove the claim of the assessee under section 54F of the Act It was also submitted that the documents were given by the assessee to erstwhile counsel of the assessee who appeared before the Assessing Officer but due to the reasons best known .....

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see further placed reliance on the decision of the I.T.A.T. Delhi Bench in the case of Mahavir Prasad Gupta Vs. JCIT (2006) 101 TTJ 1078 and the decision of the I.T.A.T. Bangalore Bench in the case of Smt.Selvi Venkatasubramani Vs.. ITO in ITA No.1052/Bang/2013 dated 7.10.2015 in this regard. 9. In response to the same, the Ld. DR filed his objection to the admission of additional evidence in writing which is reproduced hereunder: In this case, the assesse has made an application for admission o .....

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at the assesse can not suo motto furnish any additional evidence. It is only when the Tribunal requires, the additional evidence can be produced. This is all the more clear as in the second part of this Rule, the word 'allow' has been used i.e. if the income tax authorities have decided the case without giving sufficient opportunity to the assesse to adduce evidence, the Tribunal may allow such document to be produced…... . In this case, there is no plea of the assesse that the de .....

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filed before us being the agreement to sell dated 16.10.2010 of House NO.939/1, Sector 40-A, Chandigarh, copy of Will relating to the same and the General Power of Attorney relating to the same are documents which have a bearing on the pleadings made by the assessee in the present case relating to the sale of the impugned property. In fact, we find that these documents were at the first instance asked by the Assessing Officer also from the assessee to substantiate its claim of sale of impugned p .....

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situation where evidence could not be produced before the lower authorities owing to lack of adequate opportunity but also situations where the fresh evidence would enable the Tribunal to pass order or for any other substantial cause. Further, the Jurisdictional High Court in the case of Mukta Metal Works (supra) has also held that the additional evidence necessary for just decision of the matter cannot be declined to be considered as additional evidence. In view of the same, we admit the additi .....

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of the original asset. The learned counsel for the assessee drew our attention to the additional evidences now filed before us being the agreement to sell of the impugned property dated 3.2.2010, the General Power of Attorney, the Will and the agreement to sell dated 16.10.2010 of the impugned property. The learned counsel for the assessee stated that the assessee had entered into n agreement to sell the impugned property on 3.2.2010, which was before the date of sale of original asset and by v .....

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purchasers have become the absolute owners of said house subject to payments to be made by them. 12. The learned counsel for the assessee further stated that the agreement to sell entered into on 16.10.2010 could not be treated as the date of transfer since the possession stood transferred on the date of agreement to sale itself. The learned counsel for the assessee relied upon the decision of the Delhi Bench of the Tribunal in the case of Smt.Shashi Gupta Vs. ITO in ITA No.609/Del/2012 dated 24 .....

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