ARUN DWIVEDI,NEW DELHI vs. ACIT, CIRCLE-9(2), NEW DELHI
Income Tax Appellate Tribunal, DELHI BENCH, ‘A’: NEW DELHI
Before: SHRI VIMAL KUMAR & SHRI BRAJESH KUMAR SINGH
PER BRAJESH KUMAR SINGH, AM, This appeal by the assessee is directed against the order of the Ld. Commissioner of Income Tax(Appeals)-3, Delhi, dated 02.07.2018, arising out of assessment order u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to ‘the Act’) dated 23.12.2016for Assessment Year 2014-15. 2. Grounds of appeal raised by the assessee are as under:- 1. Ld CIT(A)-3 has erred in law and on facts by confirming the action of AO who did not consider the revised computation of income during assessment proceedings disclosing the calculations of long term capital gain at NIL, the same was in sheer disregard of Juri ictional High Court decision CIT V. Jai Parabolic Springs Ltd. 306 ITR 42 (Del) and CIT V. Sam Global Securities Ltd.38 Taxmann.com 129 (Del). 2. Ld. CIT(A)-3 has erred in law and on facts by confirming the action of AO who assessed long term capital gain at Rs. 17,13,051/- by denying exemption u/s 54 in sheer disregard of evidences filed before both AO and first appellate authority. 3. Ld. CIT(A)-3 has erred in law and on facts by confirming the action of AO by assessing a sum of Rs. 8666666/- (difference of stamp value and actual sale consideration) as undisclosed income under the head other sources u/s 56((2)(vii) in spite of the evidences that the agreement to sell was executed in 2005 which was admitted/confirmed by Hon'ble Delhi High Court while delivering decision on specific performance of the contract.
Brief facts of the case:- During the year, it is submitted by the assessee that he hadsold an immovable propertybeing D-4, 1st Floor, Vivekanandpuri, Lucknow, for Rs.45,95,177/-in December 2013and earned a Long Term Capital Gains of Rs.17,13,051/- and purchased a new residential house being N-1, Kailash Colony, New Delhi, 2/3rd Undivided share of basement (front portion) and 2/3rd undivided share of ground floor (front portion),for Rs.45,33,334/- vide sale deed dated 23.12.2013 . It was further submitted the said capital gains was utilised for purchase of the aforesaid new property within the time prescribed u/s 54 of the Act to claim deduction u/s 54 of the Act. However, the said transaction was not disclosed by the assessee in his original return of income filed on 16.07.2015 declaring income of Rs.19,43,100/-. It was submitted by the assessee that it was unintentional mistake of not disclosing the sale of the said property during financial year 2013-14 as it did not have any tax implication nor it was detrimental to the interest of the revenue. However, the assessee filed a revised computation disclosing the said transaction on 29.11.2016 in response to the notice u/s 142(1) of the Act during the ongoing assessment proceedings. The assessee submitted that he had sold immovable property being House no.-D-4, 1st Floor, Vivekanandpuri, Lucknow, to Smt. Meena Agarwal and Shri Rajiv Kumar Agarwal for a consideration of Rs.45,95,177/-. The ‘Details Instrument in short’ with respect to the sale of the said property has been placed at page nos.27 to 33 of the paper book in which it is stated that the first payment of sale consideration was received by the assessee by way of Rs.2 lakhs through cheque no.412408 dated 1st May 2013 drawn on State Bank of India Bank, Bazpur, District Udam Singh Nagar Branch and final payment of Rs.7 lakhs was received through cheque no.017194, dated 12.12.2013 drawn on HDFC Bank Hazratganj, Lucknow Branch. As per the assessee, he purchased the property at N-1, Kailash Colony, Delhi, (as per description earlier in this order) vide Sale Deed of Property dated 23.12.2013 for Rs.45,33,334/- from Smt. Krishna Moitra and Smt. Meera Mukherjee both daughters of Shri Shyama Pada Banerjee, who was the owner of the said propertyas per the said deed before his death on 20.03.2005. The said deed is placed at pages 44 to 49 of the paper book. As per the details available on record, the property at N-1 Kailash Colony, New Delhi was owned by Shri Shyama Pada Banerjee who according to the assessee was sold by Shri Shyama Pada Banerjee to the assessee vide agreement to sell/ ‘Receipt’ dated 21.02.2005 for a total consideration of Rs.68,00,000/-(placed at page no.43 of the paper book), in which, it is stated that Shri Shyama Pada Banerjee received a sum of Rs.2,00,000/- and the balance payment of Rs.68 lakhs will be payable by Shri Arun Dwivedi (the assessee) whenever required by Shri Shayama Pada Banerjee and the final payment will be taken over at the time of registration/possession of the above said property and the registration will take place within 90 days from the date of the said receipt. The said ‘Receipt’ placed at page no.43 of the paper book, is reproduced as under:- 3.1. Thereafter, as noted in the sale deed dated 23.12.2013, Shri Shayama Pada Banerjee died on 20.03.2005 leaving behind his last Will and testament, dated 08.02.2021, duly registered as Document No. 1040, in Additional Book No. III, Volume No. 917, on Pages 14 to 18, on 09.02.2001, in the office of the Sub-