LOUISE MARY JOSEPHINE DESOUZA LEGAL HEIR OF LATE GARCE MARY DOLORES SALDANHA ,MANGALORE vs. INCOME TAX OFFICER, WARD-2(1), MANGALORE

This appeal is filed by Louise Mary Josephine Desouza, L/R of Late Grace Mary Dolores Saldanha, (the assessee/appellant) for the assessment year 2012-13 against the appellate order passed by the National Faceless Appeal Centre, Delhi (NFAC) [ld. CIT(Appeals)] dated 24.05.2024 wherein the appeal filed by the assessee against the assessment order passed by ITO, Ward 1(3), Mangalore dated 16.02.2015 passed u/s. 143(3) of the Act was partly allowed.

The assessee is aggrieved with the above appellate order and has raised a solitary ground that the amount paid by her for the purchase of new asset was not accepted by the ld. CIT(A) and therefore the claim made for deduction u/s. 54 was not considered to that extent.

The brief facts of the case are that assessee is in an individual, filed her return of income on 31.8.2012 declaring total income of Rs.18,38,407/- which included long term capital gain of Rs.18,02,195/-. The return was selected for scrutiny and thereafter resulted into an assessment order wherein the total income of the assessee was assessed a Rs.94,54,207. The taxable long term capital gain was assessed at Rs.92,61,516.

On appeal before the ld. CIT(A), the only issue that was left out was a payment of Rs.35 lakhs made by the assessee for purchase of new property was not considered by the ld. CIT(A). The assessee sold a property on 15.3.2012 and the buyer was insisting on immediate possession of above property. Therefore, the assessee purchased new property along with her sister by Sale Deed dated 31.3.2012. The sale consideration as per Sale Deed of the property was Rs.90 lakhs. However, the assessee submitted that over and above the sum of Rs.90 lakhs, she has paid further Rs.35 lakhs to the seller. She submitted that the sale price of the property was negotiated with Mrs. Vinutha R. Malli, who insisted that the amount in respect of constructed part

The ld. CIT(A) categorically held that there is no confirmation from the seller with regard to the receipt of additional payment in cash of Rs.35 lakhs. Therefore, while granting deduction u/s. 54, he held that claim of assessee cannot be accepted to the extent of Rs.35 lakhs. Therefore, the assessee is in appeal before us.

Vide letter dated 21.8.2024, assessee has submitted that she is 70 years old and therefore on the basis of written submissions her case may be decided. According to her submission, when the assessee has given complete details of payment of Rs.35 lakhs through Mr. Gregory Soly, the revenue authorities have neither

The ld. DR vehemently submitted that the seller has confirmed that she did not receive the above sum of Rs.35 lakhs. Even the affidavit of the intermediary, Mr. Gregory does not serve any purpose as the Sale Deed only refers to the sale consideration of Rs.90 lakhs. In the affidavit also there is no averment when and how the cash was paid to the seller. He submits that according to the provisions of section 54 of the Act, the benefit can be given to the amount invested by the assessee for purchase of new house. In this case, there is no evidence available with assessee that she has paid the above sum for the acquisition of new house, there is no infirmity in the orders of the lower authorities.

We have carefully considered the rival contentions and perused the orders of lower authorities. According to the provisions of section 54 of the Act, profit on sale of property used for residence is not chargeable to tax in case of this individual, if the capital gain has been used by the assessee for purchase or construction of a new house, subject to certain conditions. The prime issue in this appeal is that assessee has purchased a new property, what is the cost of the new asset? The assessee submits that though the consideration paid as per the Sale Deed

In the result, we do not find any reason to reverse the order of ld. CIT(A) and hence the appeal of the assessee is dismissed.