Income Tax Appellate Tribunal - Indore
The Acit 2(1), Indore vs Shri Jeevan Patel, Indore on 6 September, 2018
आयकर अपील य अ धकरण, इ दौर यायपीठ, इ दौर
IN THE INCOME TAX APPELLATE TRIBUNAL
INDORE BENCH, INDORE
BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER
AND
SHRI MANISH BORAD, ACCOUNTANT MEMBER
MA No.115/Ind/2017
(Arising out of ITA No.200/Ind/2014)
Assessment Year: 2007-08
ACIT, 2(1), Shri Jeevan Patel
Indore बनाम/ 1-Bichholi Mardana
Indore
Vs.
(Revenue) (Respondent )
P.A. No. ALMPP0483B
Revenue by Shri P.K. Mitra, Sr. DR
Respondent by Smt. Palak Agrawal, CA
Date of Hearing: 31.08.2018
Date of Pronouncement: 06.09.2018
आदे श / O R D E R
PER MANISH BORAD, A.M:
This Misc. Application at the instance of Revenue is arising out of the order of the Tribunal ITANo.200/Ind/2014 dated 29.06.2017.
2. The Ld. Departmental Representative (DR) submitted that the Hon'ble Tribunal while adjudicating the issue admitted the additional evidence in the shape of bills for construction of house, work completion certificate, property tax receipts and affidavit. After admitting these additional evidences Hon'ble Tribunal directed the Learned Assessing Officer (in short Ld. AO) to decide the claim of deduction made by the assessee u/s 54B of the Act and also enquire about the claim of advance receipt of Jeevan Patel Rs.60 lacs from sale of agricultural land and the investment of the same in purchase of another land.
3. The Ld. DR further submitted that in the order of the Tribunal section 54B has been mentioned whereas the assessee has made the claim u/s 54 of the Act towards investment in construction of house. He, requested that in para 6 of the impugned order, necessary amendment may please be made by way of inserted section 54 in place of section 54B of the Act.
4. Per contra Ld. AR submitted referring to the following written submissions:
"We have received a notice for which date of hearing is fixed on 20.07.2018. The Miscellaneous application is filed by Deputy Commissioner of Income Tax -2(1), Indore for rectification/clarification in the set aside order passed by ITAT dated 29.06.2017.
The honorable ITAT in its set aside order has mentioned that deduction was claimed by appellant under section 54B but the deduction was claimed u/s 54 when return was filed in response to notice u/s 148. Later vide filing additional grounds we have claimed deduction u/s 54F stating that in return filed wrong deduction was claimed by assessee. But deduction under both the sections i.e. 54 & 54F was disallowed on the ground that the asset transferred was not a long term capital asset and no construction was carried out.
Later the bills for construction of house, Work completion certificate of new house, Property tax receipt was submitted along with affidavit to the effect that due to shortage of time the above evidences could not be submitted before Ld. CIT (A) which was submitted as additional evidences and was admitted by Honorable ITAT which proves that construction was carried out at the plot for which deduction is claimed u/s 54F. When capital asset becomes property of assesse in circumstances mentioned in sec 49(1) read with section 2(42A)/47 [i.e. When an asset is acquired by gift, will, 2 Jeevan Patel succession, inheritance or the asset is acquired at the time of partition of family or under a revocable or irrevocable trust or under amalgamation, etc.], the period for which the asset was held by the previous owner should be included for computing whether the property transferred is Short Term/ Long Term Capital Asset. Therefore, the property transferred was received as gift by appellant from his father and at the time of sale, for calculating capital gain the period of holding of appellant's father would also be considered. Thus the property transferred is long term capital asset. Section 54F of the Income Tax Act, 1961 says that "Exemption under section 54F is available if the following conditions are satisfied:
(1) The assessee being an individual or a Hindu undivided family (2) The capital gain arises from the transfer of any long- term capital asset, not being a residential house and (3) The assessee has purchase, within a period of one year before or two year after the date transfer or constructed within 3 years after the date of transfer, one residential house in India.
In the above case, all the 3 condition are satisfied and the exemption can be claimed u/s 54F of the Income Tax Act, 1961.
So, we hereby request you kindly consider our claim and provide the exemption under section 54F of the Income Tax Act, 1961."
4. We have heard the rival contentions and perused the material available on record before us. In the impugned order of the Tribunal dated 29.06.2017 direction have been given to the Ld. AO to decide the claim of deduction u/s 54B of the Act which relates to "capital gain on transfer of land used for agricultural purpose cannot be charged in certain cases". When we look into the impugned assessment order, we find that the assessee revised its claim 3 Jeevan Patel mentioning section 54 of the Act which deals with the deduction in case of profits on sale of property used for residence and further investment was made into residential house. Now, the ld. AR in its submissions mentions that it has wrongly made claim u/s 54 of the Act because the assessee is eligible for deduction u/s 54F of the Act and not section 54. There are three sections being discussed i.e. 54, 54B, & 54F and all three sections have a clear distinction. In these circumstances in our considered view it will not be justified to merely amend the order of the Tribunal amending the section. Rather, we deem it proper to recall the order of the Tribunal dated 29.06.2017 and re-fix the case for hearing for the limited purpose to adjudicate the issue as to under which section the assessee is eligible for claiming the deduction against the gain from sale of agricultural land.
Registry is directed to re-fix the case for hearing and issue notice to both the parties.
5. In the result, this Misc. Application of the Revenue is allowed as per the terms and conditions mentioned hereinabove. Order pronounced in the open court on 06 .09.2018 .
Sd/- Sd/-
(KUL BHARAT) (MANISH BORAD)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Indore; दनांक Dated : 06/ 09/2018
ctàxÄ? P.S/. न.स.
Copy to: Assessee/AO/Pr. CIT/ CIT (A)/ITAT (DR)/Guard file.
By order Private Secretary/DDO, Indore 4