Income Tax Appellate Tribunal - Jaipur
Mahadev Balai, Jaipur vs Ito, Jaipur on 26 December, 2016
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR
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BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YADAV, AM
vk;dj vihy la-@ITA No. 333/JP/2016
fu/kZkj.k o"kZ@Assessment Year : 2007-08
Mahadev Balai, cuke I.T.O.,
Village- Narrottampura, Vs. Ward 7(2),
Tehsil- Sanganer, distt.- Jaipur.
Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AXTPB 9686 R
vihykFkhZ@Appellant izR;FkhZ@Respondent
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s Assessee by : Shri P.C. Parwal (CA)
jktLo dh vksj ls@ Revenue by : Mrs. Neeja Jeph (JCIT)
lquokbZ dh rkjh[k@ Date of Hearing : 05/12/2016
mn?kks"k.kk dh rkjh[k@ Date of Pronouncement : 26/12/2016
vkns'k@ ORDER
PER: KUL BHARAT, J.M. This is an appeal filed by the assessee arises against the order dated 29/01/2016 passed by the ld. CIT(A)-III, Jaipur pertaining to the A.Y. 2007-08, wherein the assessee has raised following grounds of appeal:
"1. That the authorities below were not justified/has erred in law and facts in assessing the appellant/ confirming the addition under section 144/147 of Income tax Act, 1961.
2 ITA 333/JP/2016_ Mahadev Balai Vs ITO
2. That the issuance of notice u/s 148 of Income tax act 1961 is bad in law and liable to be quashed.
3. That the authorities below were not justified in law and fact not allowing /confirmations of addition on account of deduction under section 54B of IT Act, 1961 in respect of investment made by the assessee in purchasing the agriculture land in the name of his wife for Rs.1581540.00 and his own name on 05.04.2008 for Rs 568240.00
4. That the CIT (A)-3 JAIPUR has erred in law and fact in not allowing the deduction u/s 54F in respect of investment of Residential house for Rs 800000.00 on the land in the name of his wife.
5. That the Assessment order is bad in law and contrary to the facts of the case."
2. At the time of hearing, the ld. Counsel for the assessee has submitted that he does not wish to press grounds No. 1 and 2 of appeal. The ld DR has no any objection. Accordingly, ground Nos. 1 and 2 of the appeal are dismissed as not pressed.
3. Briefly stated facts of the case are that the case of the assessee was reopened for assessment and the assessment U/s 144 read with Section 147 of the Income Tax Act, 1961 (hereinafter referred as the Act) was framed. During the course of assessment proceedings, no one appeared on behalf of the assessee before the Assessing Officer, therefore, the Assessing Officer proceeded to make assessment on the basis of material available on the record. The A.O. observed that during 3 ITA 333/JP/2016_ Mahadev Balai Vs ITO the year under appeal, the assessee had sold a land of Rs. 80.00 lacs, therefore, he computed long term capital gain on this asset at Rs. 79,22,973/-. The A.O. also treated Rs. 1.00 lac as agricultural income and thus the A.O. computed capital gain at Rs. 79,22,973/- and Rs. 1.00 lac as agricultural income.
4. Being aggrieved by the order of the Assessing Officer, the assessee carried the matter before the ld. CIT(A), who after considering the submissions, partly allowed the appeal. While partly allowing the appeal, the ld. CIT(A) disallowed the claim made U/s 54B and 54F of the Act on the ground that the property has been purchased in the name of his wife and the investment made in construction of the house on the property belonging to the wife of the assessee.
5. Now the assessee is in appeal before us.
6. The 3rd ground of the appeal is against confirming the addition on account of disallowance of deduction U/s 54B of the Act. The ld. AR of the assessee has reiterated the submissions as made in the written submissions and has further submitted that as per Section 54B of the Act, the deduction is available if the assessee purchased any other land for being used for agricultural purposes. He has submitted that the section nowhere provides that such agricultural land should be purchased by the assessee in its own name. He also submitted that the 4 ITA 333/JP/2016_ Mahadev Balai Vs ITO assessee made investment of Rs. 15,81,540/- in purchase of agricultural land in the name of his wife. There is no dispute as to the fact that the source of such investment is out of the agricultural land sold by the assessee and the same is used for agricultural purpose. He further drew our attention to the provisions of Section 64 of the Act. In support of the contention that this Section talks of clubbing of the income of the spouse. He submitted that on one hand, the revenue is authorized to club the income of the spouse for taxation and the assessee is deprived from claiming deduction when the property is purchased in the name of his wife. Ld. AR has placed reliance on the judgments rendered in the case of CIT Vs. Kamal Wahal 351 ITR 4 (Del.), CIT Vs. V. Natarajan 287 ITR 271 (Mad)., DIT (IT) Vs. Mrs. Jennifer Bhide 349 ITR 80 (Kar). The ld. AR also placed reliance on the decision of the Hon'ble Delhi High Court in the case of CIT Vs. Ravinder Kumar Arora 342 ITR 38 (Del.)
7. On the contrary, the DR has vehemently supported the order of the authorities below and has further submitted that the Hon'ble Jurisdictional High Court has decided the issue against the assessee in the case of Kalya Vs. CIT & Ors. (2012) 73 DTR 302 (Raj). He has further submitted that the Hon'ble High Court has examined the issue and held that a bare reading of Section 54B of the Act does not suggest that assessee would be entitled to get exemption for the land purchased 5 ITA 333/JP/2016_ Mahadev Balai Vs ITO by him in the name of his son and daughter-in-law. She further submitted that the Hon'ble High Court has held that the word "assessee" used in the Income Tax Act needs to be given a 'legal interpretation' and not a 'liberal interpretation', as contended by the learned counsel for the appellant. If the word 'assessee' is given a liberal interpretation, it would tantamount to giving a free hand to the assessee and his legal heirs and it shall curtail the revenue of the Government, which the law does not permit. Ld. DR has further submitted that the wife of the assessee would not come within the ambit of the word 'assessee' and she submitted that the authorities below have rightly decided this issue against the assessee.
8. We have heard the rival contentions of both the parties, perused the material available on the record and also gone through the orders of the authorities below. The undisputed facts remain that the assessee has sold a land and purchased capital asset in the name of his wife and claimed deduction U/s 54B of the Act. The contention of the ld. Counsel for the assessee is that the issue has been decided in favour of the assessee by the two Hon'ble High Courts and the ld. AR has also placed reliance on the decision of the Hon'ble Supreme Court in the case of CIT Vs. Vatika Township (2014) 367 ITR 466 (SC) and also drew our attention to Section 64 of the Act to buttress the contention that the 6 ITA 333/JP/2016_ Mahadev Balai Vs ITO investment made in the name of the wife would be eligible for deduction U/s 54B of the Act as the provision of Section 54B is not clear whether the investment would be restricted to the assessee. Therefore, in view of the judgment of the Hon'ble Supreme Court in the case of Vatika Township (supra), where two views are possible, the view which is favourable to the tax payer should be adopted. We have given our thoughtful consideration to the contention of the assessee and material available on record. We find that the Hon'ble Jurisdictional High Court in the case of Kalya Vs. CIT & ors. (supra) has held as under:-
"5. Learned counsel for the appellant canvassed that the object of granting exemption under Section 54b of the Act of 1961 is that a person who sells agricultural land for the purpose of purchasing another agricultural land must be given exemption so far as capital gains are concerned. The word "assessee" used in section 54b of the Act for fulfilling the condition and subsequently enabling the assessee to claim exemption under Section 54b of the Act must be given a wide and liberal interpretation so as to include his legal heirs also. The provisions contained in Section 54b of the Act being socio-welfare and beneficial in nature were required to be construed liberally in favour of assessee, but the learned Tribunal arbitrarily disallowed the claim of the appellant-assessee and upheld the findings of the CIT (A) observing that no deduction under Section 54B of the Act would be available to the assessee-appellant on the issue of purchase of land in the name of his son and daughter-in-law, hence the impugned order needs to be set-aside.
6. Having heard the learned counsel for the appellant and carefully perused the relevant material on record 7 ITA 333/JP/2016_ Mahadev Balai Vs ITO including the impugned order, it is noticed that the appellant-assess sold the agricultural land, which was mutated in his name, for a sale consideration of Rs. 1,61,09,100/-. Thereafter out of the selling price, the appellant-assessee purchased land in the name of his son and daughter-in-law for a total consideration of Rs. 1,22,71,440/-. It is relevant to note that the land sold was in the name of appellant-assessee, while the land purchased was in the name of his son and daughter-in- law.
7. A bare reading of Section 54B of the Income Tax Act does not suggest that assessee would be entitled to get exemption for the land purchased by him in the name of his son and daughter-in-law. In the facts and circumstances of the case also aforesaid inference has not been drawn. Same is question of fact. No substantial question of law arises in appeal. Question whether purchase was by assessee or by son, is a question of fact.
8. Secondly, the word "assessee" used in the Income Tax Act needs to be given a 'legal interpretation' and not a 'liberal interpretation', as contended by the learned counsel for the appellant. If the word 'assessee' is given a liberal interpretation, it would be tantamount to giving a free hand to the assessee and his legal heirs and it shall curtail the revenue of the Government, which the law does not permit.
9. The Income Tax Appellate Tribunal, having considered all the facts and circumstances of the case, is found to have rightly disallowed the exemption under Section 54B of the Act.
10. The impugned order passed by the learned Tribunal is just and apposite, based on cogent findings, with which we fully concur and thus, the same warrants no intervention."
8 ITA 333/JP/2016_ Mahadev Balai Vs ITO In view of the above binding precedent, we do not seen any reason to interfere in the order of the ld. CIT(A), therefore, the same is hereby affirmed. Accordingly, this ground of assessee's appeal is dismissed.
9. The 04th ground of the appeal is against disallowance of deduction U/s 54F of the Act. The ld. Counsel of the assessee has submitted that the authorities below have failed to appreciate the fact of Section 54F of the Act, does not envisage that the land should also belong to the assessee on which the construction is made. He reiterated the submissions as made in the written submissions. He has further submitted that the assessee invested Rs. 8.00 lacs on construction of a residential house on the agricultural land bearing Khasra No. 373 and 372 in the name of his wife at village Khachariyawas, Sikar. In support of the same, the assessee filed valuation report of the registered valuer, who determined the cost of construction of the residential building. He further submitted that the authorities below have no doubt about the construction of the house but declined on the ground that such deduction is not available since the land belongs to the wife of the assessee. He submitted that under the identical facts, the Hon'ble Karnataka High Court in the case of CIT Vs. P.R. Seshadri 329 ITR 377 has decided the issue in favour of the assessee. The Hon'ble High Court has held as under:-
9 ITA 333/JP/2016_ Mahadev Balai Vs ITO "24. The first question relating to the benefit of section 54F being availed of by the assessee in our opinion has to be answered against the Revenue and in favour of the assessee for the reason that though the land may be in the ownership of the assessee' s spouse, nevertheless the Tribunal has recorded a categorical finding that construction work was in progress during April 21, 1995 till August 31, 1996, and the wife of the assessee could have included the value of construction for mortgage purposes and this alone does not mean that construction was carried out by the wife of the assessee out of her own funds so as to deny the assessee the benefit of deduction under section 54F of the Act.
25. If that is to be accepted as finding of fact then we find no impediment in the assessee's claim for relief under section 54F, as the assessee had claimed relief to the extent of Rs. 20,96,008 as his contribution towards the cost of construction of the building and this amount we find that will fall within the cost of the building.
Accordingly, questions (i) and (ii) are answered in the affirmative and against the Revenue."
10. On the contrary, the ld. DR has vehemently supported the order of the ld. CIT(A).
11. We have heard the rival contentions of both the parties, perused the material available on the record and also gone through the orders of the authorities below. The Hon'ble Jurisdictional High Court in the case of Kalya Vs. CIT & ors. (supra) had occasion to deal with the question of eligibility of Section 54B of the Act but has not examined the claim made U/s 54F of the Act, therefore, the revenue has not brought our notice any other binding precedent of the eligibility of deduction U/s 54F of the Act. Therefore, by respectfully following the judgment of the Hon'ble 10 ITA 333/JP/2016_ Mahadev Balai Vs ITO Karnataka High Court in the case of CIT Vs P.R. Seshadri (supra), we direct the Assessing Officer to allow deduction U/s 54F of the Act to the assessee of Rs. 8.00 lacs. Accordingly, this ground of appeal is allowed.
12. Ground No. 5 of the appeal is general in nature, requires no separate adjudication.
13. In the result, the appeal of the assessee is partly allowed.
Order pronounced in the open court on 26/12/2016.
Sd/- Sd/-
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(Vikram Singh Yadav) (Kul Bharat)
ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member
Tk;iqj@Jaipur
fnukad@Dated:- 26th December, 2016
*Ranjan
vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- Shri Mahadev Balai, Jaipur.
2. izR;FkhZ@ The Respondent- The I.T.O., Ward 7(2), Jaipur.
3. vk;dj vk;qDr@ CIT
4. vk;dj vk;qDr@ CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File (ITA No. 333/JP/2016) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar