TMI Blog2021 (7) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... is evident that there was an opening deposit/loan of the assessee, Shri Sudhir Srivastava, in the books of M/s Sun Eye Hospital Laser Center Private Limited. The assessee has given an advance to M/s Sun Eye Hospital Laser Center Private Limited, Lucknow. As rightly contended, there cannot be any addition as per section 2(22)(e). Accordingly, ground Nos.4 5 are accepted and the addition to the extent for deemed dividend under section 2(22)(e) of the Act is deleted. - IT(SS)A No.667/LKW/2019 - - - Dated:- 19-7-2021 - Shri. A. D. Jain, Vice President And Shri T. S. Kapoor, Accountant Member For the Appellant : Shri K. R. Rastogi, C.A. For the Respondent : Smt. Sheela Chopra, CIT (DR) ORDER PER A.D. JAIN, V.P.: This is an appeal filed by the assessee against the order of the ld. CIT(A)-III, Lucknow, dated 16.9.2019, for assessment year 2016-17, raising the following grounds of appeal: 1. The CIT (A)-3, Lucknow erred on facts and in law in upholding the disallowance of ₹ 17,24,084/- being Long Term Capital Gain on sale of Flat by not allowing the exemption u/s 54F of I. T. Act. 2. The Ld. CIT (A) erred on facts and in law i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,24,084/-. However, the Assessing Officer rejected the claim of the assessee on account of the following two reasons: (a) that since the assessee has three properties, namely - (i) J-164, Aashiyana, Lucknow (ii) Plot No. 56-B, Singar Nagar, Lucknow and (iii) Plot No.,57-B, Singar, Nagar, Lucknow, accordingly, the assessee is not eligible for exemption u/s 54F of I .T. Act; and (b) that since the sale consideration from sale of Plot No. J- 196, Aashiyana, Lucknow, has not been utilized for construction of residential house at 56-B, Singar Nagar, Lucknow, the same was not eligible for claiming exemption u/s 54F of I.T. Act. 3. Before the ld. C.I.T. (A), the assessee, with regard to the observations of the Assessing Officer at para 4.1 of his order, submitted that the assessee does not have three properties and it was further explained that there is no property at J-164, Aashiyana, Lucknow and the correct address of the property is J- 194, Aashiyana, Lucknow and the said property, being J-194, Aashiyana, Lucknow was owned by the assessee's father, Shri Pramod Kuthar Verma. In support of the same, the assessee filed a copy of the Purchase Deed of the property before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective of the fact that funds invested are from different sources and not from the capital gain only. 8. The assessee has placed reliance on the following judgments: (1) CIT vs. Kapil Kumar Agarwal , 66 Taxmann.com 191 (P H). (2) Ms. Moturi Lakshmi vs. ITO , 119 Taxmann.com 488 (Mad.). (3) Gouli Mahadevappa vs. ITO [2013] 33 Taxmann.com 47 (Karnataka). (4) Smt. Pushpa Devi Tirbrewala vs. ITO [2013] 33 Taxmann.com 305 (Hyderabad Trib.) 9. The ld. D.R., on the other hand, has, supporting the impugned order, contended that as correctly held by the ld. CIT(A), the investment in the new asset has to be made from the net consideration received on sale of the original asset and not from any other source; and that therefore, the appellant's contention that as per section 54F of the Act, the total amount actually incurred by the assessee for construction of residential portion at plot No. 56-B should be deducted, irrespective of the fact that the funds invested are from different sources and not from the capital gain, is devoid of any merit. 10. The issue is as to whether the ld. CIT(A) is correct in holding that as per the provisions of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upport of the same, a copy of the Ledger Account of the assessee in the books of M/s Sun Eye Hospital and Laser Centre Private Limited was also filed before the ld. CIT(A). Copies of the audited Balance Sheet and Profit and Loss Account of M/s Sun Eye Hospital and Laser Centre Private Limited for the year ending 31.03.2016 were also furnished before the ld. CIT(A). 18. The ld. CIT(A) confirmed the addition made by the Assessing Officer, observing that since the nature of income, from which the payment has been made, is undisclosed income, it does not partake the character of repayment of loan. 19. The ld. Counsel for the assessee has contended before us that Shri Sudhir Srivastava had given an unsecured loan of ₹ 14,42,391.09 to the Company, M/s Sun Eye Hospital Laser Center Private Limited; and that the said loan was outstanding as on 01.04.2015 and also the closing outstanding as on 31.3.2016 was ₹ 14,42,391.09. Our attention has been drawn to APB:41 42, which is a copy of the ledger account of the assessee s unsecured loan in the books of the Company, M/s Sun Eye Hospital laser Center Private Limited. Attention has also been drawn to APB:43 to 54, i.e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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