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10-01-2019, Kumari Sheetal Garg, Section 2(47)(v), 53A, 147, Tribunal Indore

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1 week 1 day ago #8343 by amit
Section - 2(47)(v), 53A, 147, 148, 45
Order Date - 10-01-2019
Favouring - Assessee
Court - Tribunal Indore
Appellant - DCIT
Respondent - Kumari Sheetal Garg
Justice - KUL BHARAT JM & MANISH BORAD AM
Citation - 119Taxpundit139
Appeal No. - ITA No.254/Ind/2017
Asstt. Year - 2008-09

Order

PER : MANISH BORAD

The above captioned appeal is filed at the instance of Revenue pertaining to Assessment Year 2008-09 and is directed against the orders of Ld. Commissioner of Income Tax (Appeals)-I (in short ‘Ld.CIT(A)’], Indore dated 07.12.2016 which is arising out of the order u/s 147 r.w.s. 143(3) of the Income Tax Act 1961(In short the ‘Act’) dated 31.07.2015 framed by ACIT-3(1), Indore.

2. Revenue had raised following grounds of appeal;

“1. Whether on the facts and in the circumstances of the case Ld. CIT(A)'has erred in deleting the addition of Rs. 2,50,74,858/- made by the AO on account of disallowance of deduction claimed u/s. 54F as claim of Long Term Capital Gain was treated as Short Term Capital Gain.

2. Whether on the facts and in the circumstances of the case Ld. CIT(A) has erred in holding that effective date of transfer from hands of assessee was date of registration i.e. 10.04.2007 while, the assessee relinquished here rights vide sale agreement dated 14.12.2006 in favour of Shri Vinay Chajlani and Smt. Sunita Chajlani and enjoying the said rights Shri Vinay Chajlani & Smt. Sun ita Chajlani sold the property to M/s. Honeywell Property P. Ltd. at higher price than that is mentioned in Agreement with the assessee.

3. Whether on the facts and in the circumstances of the case Ld. CIT(A) has erred in holding that reopening is not valid while the copy of agreement dated 14.12.2006 was not submitted by assessee during the course of assessment proceedings hence, the facts of the agreement was not verified by the AO during the original assessment proceedings.

4. The appellant reserves the right to add, amend or alter the ground of appeal on or before the date the appeal is finally heard for disposal."

3. Briefly stated the facts as culled out from the records are that the assessee filed her return of income on 31.3.09 declaring total income of Rs.34,51,540/-. In the said return the assessee had claimed exemption u/s 54F of the Rs. 2,50,74,857/- in respect of Investment made in the fixed deposit of Rs. 2,51,00,000/- under the capital gain deposit scheme. As the correct exemption allowable u/s 54F was Rs. 2,18,13,595/-the return was revised. The assessment of the assessee was completed u/s 143(3) of the Income Tax Act on 30.12.2010 wherein the total income was finally assessed at Rs. 67,12,802/- i.e. as per the revised return filed by her on 12.07.2010. An audit objection was raised alleging that as the assessee has entered into agreement to sale on 14.12.2016, the effective date of sale shall be 14.12.2006 and not 10.4.2007(the date of registered sale deed). On the basis of audit objection, the case was reopened and claim u/s 54F was denied alleging the gain to be short term capital gain.

4. Aggrieved assessee preferred an appeal before the Ld.CIT(A) who allowed the appeal of the appellant.

5. Aggrieved by the above deletion Revenue is in appeal before the Tribunal raising two Issues (i) As the date of agreement to sale was 14.12.2006, the capital gain is short term and exemption u/s 54F is not allowable & (ii) The reopening was valid.

6. Ld. Departmental Representative vehemently supported the order of Ld.A.O.

7. Per contra Ld. Counsel for the assessee supported the findings of Ld. CIT(A) and submitted that as per Section 2 (47)(v) of the IT Act "Any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of a contract of the nature referred to in section 53A of the Transfer of Property Act, 1882." As per this clause three conditions are mandatory for transfer, (i) Part Performance, (ii) Possession & (iii)

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