SMT. LAXMI DEVI VERMA,JAIPUR vs. INCOME TAX OFFICER, JAIPUR

Briefly, the facts of the case are that during the year under consideration, the assessee has sold an immovable property situated at Tehsil Chomu, Jaipur for a consideration of Rs. 94,20,000/- on 24.12.2012 which was valued at Rs. 95,13,000/- by the Sub-Registrar for the purpose of charging stamp duty but the transaction of sale of above property was not disclosed in the return of income. In the enquiries conducted by the office of DIT(I&CI), Rajasthan, Jaipur, the assessee has submitted a computation of income showing long term capital gains on the sale of said property at Rs. Nil taking sale consideration at Rs. 94,20,000/-, cost of acquisition of Rs 14,63,918/-, registry expenses of Rs 1,83,136/-, expenses on account of commission and development expenses amounting to Rs 25,28,324/-and claiming deduction of Rs. 48,94,622/- u/s 54F of the Act. Further, it has been stated by the AO that spot enquiries were made by the ITI from the office of DIT (I & CI), Rajasthan, Jaipur on 01.03.2015 wherein it was observed that the plots of land purchased by the appellant at Tehsil Chornu were lying vacant and not even a boundary wall was there. In view of the report of the DIT(I &CI), Rajasthan , Jaipur the matter was examined by the AO and he had reason to believe that capital gain on the sale of property for Rs. 95,13,000/- had escaped assessment as the total amount of Rs. 98,92,590/- was invested by the appellant in the purchase of two plots but no house was constructed thereon and consequently, deduction u/s 54F of the Act was not allowable. Thereafter, notice U/s 148 of the Act was issued on 18.01.2016 after seeking approval of the competent authority. Thereafter notice U/s 143(2) and 142(1) of the Act were issued calling for the information/documents and the assessment was completed U/s 147 r/w section 143(3) of the Act vide order dated 23.12.2016 wherein income from long term capital gains was computed without allowing deduction towards commission and development expenses totalling Rs. 25,28,324/- claimed by the assessee and further deduction U/s 54F of the Act was also denied as the assessee had not made investment in house property and the amount of Rs. 98,52,590/- was invested in vacated residential plot of land only. Against the said findings, the assessee’s went in appeal before the ld. CIT(A) who has confirmed the order of the Assessing Officer and again the said findings, the assessee’s is now in appeal before us.

During the course of hearing, the ld. AR submitted that during the appellate proceedings before the ld CIT(A), the assessee had moved an application under Rule 46A for admission of certain additional evidences which are critical and germane to issue under consideration, however the ld. CIT(A) has erred in not accepting the additional evidences filed by the assessee. It was submitted that the assessee has taken a specific ground of appeal before this Bench regarding non-admission of additional evidences by the ld CIT(A) besides other grounds of appeal and it was accordingly prayed that the additional evidences so filed by the assessee may be admitted and the matter may be remanded back to the file of the Assessing Officer to examine the same.

We have heard the rival contentions and perused the material available on record. The evidences so sought to be admitted are admittedly related to the transaction which is subjected to long term capital gains and are in form of bills, receipts, confirmation, affidavits etc in support of commission and development expenses and claim of construction of house and deduction u/s 54F of the Act. It is a settled position of law that the Revenue can tax what is taxable under the law and the deductions where claimed and found eligible should be allowed. The substantial justice should prevail over the procedural or technical aspects. We therefore considering the fact that these evidences which are now sought to be admitted would be in the interest of proper adjudication of the issues at hand, the same are hereby admitted and the matter is set-aside to the file of AO to examine the same and decide the matter as per law after providing reasonable opportunity to the assessee.