ITO, NON-COPORATE WARD-19(6), CHENNAI vs. SHRI.GOMATHINAYAGAM RATHINASABAPATHY, EKKADUTHANGAL CHENNAI

आदेश /O R D E R

PER S. R. RAGHUNATHA, ACCOUNTANT MEMBER:

:-2-: ITA. No: 508/Chny/2023

2. The Ld. CIT(A) erred in allowing the assessee's claim of deduction u/s.54F of the Act.

4. The Ld. CIT(A) failed to appreciate that a during assessment proceeding or appeal proceedings assessee failed to produce any electricity bill, water and sewerage tax paid after completion of house. Hence it is very clear there is no existence of house. 5.The Ld. CIT(A) failed to appreciate that the receipt of the property tax paid does not have any mention about the house is constructed on Polystyrene Core panel system. Hence the question of existence of house made of Polystyrene Core panel system in the said property does not arise. 6. The Ld. CIT(.L\) failed to appreciate that as per DTPC guidelines any kind of construction for residential, commercial and institutional and formation of layouts require planning permission. Under section 47(A) of the Town and country Planning Act 1971, Planning permission is required in both plan and non-plan areas. In the absence of same the assessee's argument is not acceptable as no Panchayat approval, no DTCP approval, no property tax paid in the year 2013, no water and sewage Bill and no electricity bill is there. 7. Without prejudice to the above, it is prayed that the cost of the land should be allowed only to the extent of land appurtenant to the house, which is constructed in the land measuring 504 Sq.ft. 8. For these and other grounds that may be adduced at the time of hearing, it is prayed that the order of the ld. CIT(A) be set aside and that of the Assessing Officer be restore.”

:-3-: ITA. No: 508/Chny/2023 Technologies P. Ltd and M/s.Theme Technologies P.Ltd. He along with other shareholders entered into an agreement on 03.11.2010 with M/s.Capgemini India Pvt Ltd to sell their entire shares during the year 2010-11. The total consideration received by the assessee was at Rs.7,38,70,114/- and capital gains on the sale of shares was worked out at Rs.6,35,55,580/-. The assessee paid capital gains tax on some portion, purchased bonds for an amount of Rs.50,00,000/- u/s.50EC of the Act and claimed exemption u/s.54F of the Act for Rs.3,10,00,000/- by depositing the said amount in capital gain deposit account with Indian Overseas Bank. As per section 54F, amount which was kept in capital gain deposit account should be utilized for purchase or construction of the house property within two or three years respectively. Therefore, the Assessing Officer having allowed the deduction based on the deposit in the capital gain account, which was due for reinvestment in construction of house property on 22.11.2023 and re-opened the assessment for assessment year 2014-15, after complying with the procedures under the Act. During the assessment proceedings, the assessee stated that a sum of Rs.3,93,11,766/- was spent for purchase of land from M/s.Vijay Foundations and Rs.18,00,000/- was paid to M/s.Omplas

:-4-: ITA. No: 508/Chny/2023 Systems for construction of the energy efficient house using expanded polystyrene core panels. However, not convinced with the reply of the assessee, the Assessing Officer completed the re-assessment u/s.147 r.w.s. 143(3) of the Act on 16.12.2019 by denying the deduction u/s. 54F of the Act which was allowed for the assessment year 2011-12 to the tune of Rs.3,10,00,000/- on the basis of deposit made in the capital gain account. Aggrieved by the order of the Assessing Officer, the assessee preferred an appeal before the ld.CIT(A).

residential house within stipulated time' appears to be lopsided. It is seen from the record that the assessee had purchased vacant land at Perumbakkam village on 25.10.2012 vide document no.8181 /2012registered in SRO, Selaiyur along with his wife Smt.G.Sundari for Rs.4,10,00,000/- in which the assessee's contribution was Rs.3,43,00,000/-, Consideration for purchase of land was paid to Vijay Foundation from the capital gains account of Indian Overseas Bank "SB-CGA Account Number 069801000030118". The date wise payments are mentioned on pages 5 and 6 of the Sale deed. The assessee claimed that he constructed an energy saving/eco-friendly residential house using the EPS materials on the land purchased with the help of M/s.Omplas Systems, Chennai. He filed a copy of the quotation given by the M/s.Omplas Systems and also an affidavit from the director of M/s.Omplas Systems confirming the construction of eco-friendly house using the new materials and completion of the same by 22.11.2013. Consideration for construction of the house was paid to M/s.Omplas Systems from the capital gains account. During the remand report in response to the mail given by the JAO calling for information u/s.133(6), the director of M/s.Omplas systems gave a reply mail confirming the construction, copy of which is on the record. Regarding the permission and completion certificates, it is explained that as new types of materials were used, construction permission as well as completion certificates are not available from local authority which in my opinion is logical and acceptable. As there was no permission, the door number was not allotted by the panchayat. 6.12 The fact that the AO has not disputed the authenticity of the revised partition deed dated 03.02.2020 registered with the sub- registrar office correcting the clerical mistake committed in the original partition deed negates the findings of the AO that there was no house on the land. JÁO in his remand reported that M/s.Omplas Systems is not a builder but a fabricator. In this case the appellant constructed an eco-friendly house with special materials viz. Expanded Polystyrene (EPS) which does not require a normal builder, who uses brick and mortar for construction of house whereas a fabricator is good at cutting welding/joining/pasting of verticals, sheets etc. 6.13 Regarding the availability of plan approval, completion certificate of the house and the door number of house generally called for and placed on record for verification of construction of a house are not available in this case because of :-6-: ITA. No: 508/Chny/2023 unique nature of house constructed by the appellant using new kind of materials called Expanded Poly Styrene (EPS). A local authority will approve the building as per the materials like brick and mortar in their norms and getting a permission to construct a house with new materials was not possible. Further, the appellant submitted that the property where house was built falls within a Jurisdiction of a Panchayat Board which lies outside the city limits, therefore, obtaining an approval from local authority like Municipality was not required. Once no permission of local authority is obtained, there cannot be any completion certificate of the house construction. 6.14 Regarding the property tax, it is explained that house was assessed to property tax after recognizing and recommending Expanded Polystyrene core panel system for construction for house construction by Ministry of Housing and Urban Affairs, Works division, copy of Office Memorandum dated 20.03.2018 issued by the Ministry of Housing and Urban Affairs is filed. In view of this fact, property tax payment receipt for the years 2013 to 2019 paid in 2018 is acceptable. Therefore, in view of the above discussion, plan approval, construction agreement and completion certificate etc. cannot be taken as the basis for accepting the construction of a house in the present case. 6.15 I am of the considered opinion that recitals of the revised rectification deed, quotation for construction of eco-friendly house with EPS materials, Affidavit of the Director of M/s.Omplas Systems, bank statement of the appellant showing the payments to M/s.Omplas Systems, photograph of the house and the municipal tax receipt establish that the residential house was constructed on the land purchased by utilizing the amounts in the capital gains account. The appellant being innovative in approach constructed an energy efficient greenhouse in line with the various renewable energy initiatives undertaken by the Government of India, which cannot become a hurdle in accepting the construction of a house for allowing the benefit of54F deduction. Therefore, the AO is hereby directed to allow the 54F deduction and delete the addition made. Appellant gets relief. Grounds of appeal numbers 6 to 10are allowed.”

Aggrieved by the order of the ld.CIT(A), the revenue preferred an appeal before us.

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6.1 The Ld.DR also argued that the Ld. CIT(A) failed to appreciate that as per DTPC guidelines any kind of construction for residential, commercial and institutional and formation of layouts require planning permission. Under section 47(A) of the Town and country Planning Act 1971, Planning permission is :-8-: ITA. No: 508/Chny/2023 required in both plan and non-plan areas. In the absence of same the assessee's argument is not acceptable as no Panchayat approval, no DTCP approval, no property tax paid in the year 2013, no water and sewage Bill and no electricity bill is there. The Ld.DR stated that without prejudice to the above, that the cost of the land should be allowed only to the extent of land appurtenant to the house, which is constructed in the land measuring 504 Sq.ft. and hence prayed for setting aside the ld.CIT(A) order by confirming the order of the AO by denying the deduction u/s.54F.

7. Per Contra, the ld.AR stated that the appeal of the assessee has been allowed by the ld.CIT(A) after considering the documents submitted by the assessee in support of his claim and also obtained remand report from the AO. Hence, the claim of the assessee u/s.54F is in accordance of law. The ld.AR in support of the order of the Ld.CIT(A) in allowing the appeal in favour of the assessee, drew our attention to the paper book filed consisting of 215 pages as detailed below: Date Particulars Page No 26.12.2020 Appeal hearing notice issued by the first 1 appellate authority 11.01.2021 Response filed before the first appellate 6 authority

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- Tenzing match works V. The Deputy 13 Commissioner of Income Ta Circle 1, Virudhunagar, - Madras High Court – Tax case (Appeal) No. 702 of 2009 15.11.2016 Assessment order passed under section 143(3) 21 of the Act in the hands of the appellant by the ITO, Non Corporate Ward -13(4), Chennai - Principal Commissioner of Income Tax 1 V. Shri. 28 K.R.Jayaram – Madras High Court – Tax case(Appeal) No. 440 of 2018 - Asianet Star Communications (P) Ltd vs 46 Assistant Commissioner of Income-tax Non Corporate Circle 20(1) – Madras High Court – 422 ITR 47 - Bank statement of the respondent in Indian 64 Overseas Bank 23.11.2018 Affidavit of C.Balasubramanian, Managing 67 Partner of M/s. Omplas System 22.11.2013 Partition Deed between respondent and 68 respondent’s wife 03.02.2020 Rectification Deed for the partition deed dated 78 22.11.2013 25.10.2012 Absolute Sale deed executed by Vijay 95 Foundation Private Limited 14.05.2013 Quotation of M/s. Omplas System 113 19.11.2018 Property tax paid by the respondent 115 - Picture of the respondent’s property 116 13.12.2022 Appeal Hearing notice issued by the first 117 appellate authority 18.12.2022 Response filed before the first appellate 123 authority 14.12.2019 Response to the show cause notice dated 126 11.12.2019 issued during assessment proceedings - R. Sivasubramanian V. Income Tax Officer, 131 Ward 1(1), Salem – Income Tax Appellate tribunal, Chennai Bench –ITA No 01/Mds/2013 - Supplementary response filed before the first 162 appellate authority 24.01.2023 Appeal hearing notice issued by the first 163 appellate authority 21.01.2023 Remand report of the Assessing Officer 167 26.01.2023 Respondent’s reply to the remand report dated 170 21.01.2023 22.12.2022 Email of Omplas Systems sent to confirming 176 construction of the respondent’s house 30.01.2023 1st Letter approving the request for the personal 177 hearing through video conferencing 31.01.2023 Respondent’s response to letter issued 178 01.02.2023 2nd letter approving the request for the personal 179

:-10-: ITA. No: 508/Chny/2023 hearing through video conferencing 06.02.2023 Respondent’s response to letter issued 180 07.02.2023 Letter issued scheduling video conferencing on 182 08.02.2023 at 3.00 PM 09.02.2023 Response filed after video conferencing 187 - Office memorandum issued by the Ministry of 189 Housing and Urban Affairs 15.05.2019 Email sent to the Assessing Officer by the 191 Respondent’s Chartered Accountant during re- assessment proceedings 17.03.2016 Notice under section 148 of the Act issued for 194 the Assessment year 2011-12 16.05.2019 Response filed before the Assessing Officer 195 during re-assessment proceedings 28.02.2019 Return of income filed for the assessment year 197 2014-15 along with statement of income - Axis Bank account statement of the respondent 200 - Passbook of the respondent’s bank account in 202 Indian Bank - State Bank of India account statement of the 212 Respondent 21.11.2019 Response filed before the Assessing Officer 213 during re-assessment proceedings 12.12.2019 Response filed before the Assessing Officer 215 during re-assessment proceedings 7.1 The Ld.AR further submitted that the Assessee had furnished the bank statements establishing the utilisation of the sale consideration towards creation of the new asset by making payments to M/s.Vijay Foundations and M/s.Omplas Systems within the stipulated time. Hence, the assessee has established that the new house property has been created by acquiring the land and building a house in the said land. The Affidavit from the Managing Partner of M/s.Omplas Systems (at Page No. 67 of the PB) wherein he had confirmed the creation of the new asset in the form of Energy Saving Green House measuring

:-11-: ITA. No: 508/Chny/2023 about 1,008 sq.ft. (ground plus first floor) and further confirmed that the house was completed and handed over in the month of October 2013 has been filed by the assessee.

7.2 The ld.AR also relied on the decision of the co-ordinate bench of Chennai Tribunal in the case of B.Sivasubramanian in wherein the it is clearly stated that the provisions of Section 54F mandates the construction of a residential house, within a stipulated time but do not have condition of building plan or construction should be approved by the Municipal corporation or any other competent authority by holding as under: “6. We have heard the submissions made by the representatives of both the sides. We have also perused the orders of the authorities below as well as the documents placed on record by the ld.Counsel for the assessee. It is not disputed that the assessee is not in possession of plot on which a residential building is in existence. The assessee has allegedly utilized the Long Term Capital Gain arising from the sale of shares towards the construction of a new residential house after demolition of old building on the plot-in-question. The assessee has claimed exemption u/s.54F on the ground that the assessee has invested Long Term Capital Gains arising from sale of shares towards construction of a new house within the prescribed period as mentioned in the Act. However, the contentions of the assessee has been rejected by the authorities below for the reason that the assessee has not placed on record the approved building plan from the Municipal Corporation. The assessee has admitted the fact that the new residential house has been constructed without the approval of the Municipal Corporation. Rather, in support of his contentions, the ld.Counsel for the assessee has placed on :-12-: ITA. No: 508/Chny/2023 record an interim order dated 08-02-2007 from the Corporation of Salem, wherein it has been stated that the assessee has constructed a new building without the permission of the Commissioner of Salem Corporation. The assessee has also placed on record the building plan and the estimation for the construction of a new house of demolition of the existing building. Reliance cannot be placed on the building plan as it is not approved by any statutory authority. However, the fact that the assessee has constructed a new house is proved by the interim order issued by the Corporation of Salem wherein it has been stated that the assessee has put up a new construction without permission of the Commissioner, Salem Corporation. The provisions of section 54F mandates the construction of a residential house, within the period specified. However, there is no condition that the building plan of the residential house constructed should be approved by the Municipal Corporation or any other competent authority. If any person constructs a house without approval of building plan, he will be raising construction at his own risk and cost. As far as for availing exemption u/s.54F, approval of building plan is not necessary. The approved building plan, certificate of occupation etc. are sought to substantiate the claim of new construction. In the present case, the fact that the assessee has raised new construction is evident from the interim order issued by the Corporation of Salem.

8.1 We note that the Assessee during the first appellate proceedings and remand proceedings had furnished the rectified partition deed registered with the Sub-Registrar Office (at Page No.78 of the PB) rectifying the mistake committed in the original partition deed. We have also examined the documents filed before us along with remand report of the Assessing Officer leading to passing of the impugned order.

8.2 We notice that the Assessee had furnished the bank statements establishing the utilisation of the sale consideration towards creation of the new asset by making payments to M/s.Vijay Foundations and M/s.Omplas Systems within the stipulated time. The only issue that arises for consideration is on the fact of existence of the building. We found that the Assessee had placed on record the Affidavit from the Managing

:-14-: ITA. No: 508/Chny/2023 Partner of M/s.Omplas Systems (at Page No. 67 of the PB) wherein he had confirmed the creation of the new asset in the form of Energy Saving Green House measuring about 1,008 sq.ft. (ground plus first floor) and further confirmed that the house was completed and handed over in the month of October 2013.

8.3 Further, in support of the existence of the building, the Assessee drew our attention to the record for having paid the property tax receipt dated 19.11.2018 for the period commencing from 2013-14 establishing the completion of the said house in the year 2013.

8.4 We also note that the Assessing Officer had rejected the plea of the Assessee in the remand report by observing that the rectification deed was rectified only after the completion of the assessment and the Assessee had not established the creation of the asset with proper documents. The Assessing Officer had also mentioned that there is no response from M/s. Omplas Systems to whom a notice was sent during the remand proceedings.

:-15-: ITA. No: 508/Chny/2023 8.5 It is important to note that the rectification deed executed by the Assessee had been approved for registration by the competent authority and the remedy availed by the Assessee after noticing the mistake in consequence to the passing of the assessment order cannot be the ground for rejecting its plea. The core issue in the present case was triggered solely based on the partition deed which appears to be rectified subsequently and hence we are of the opinion that the Assessee had created the new asset especially in view of the utilisation of the funds within the stipulated time. Further, we find that M/s.Omplas Systems had filed an email response to the Assessing Officer on 22.12.2022 (at Page No. 176 of the Paperback) confirming the creation of the asset during the remand proceedings and the said fact was also not controverted by the Ld. Departmental Representative.

8.6 With respect to the issue of not obtaining approval from the competent authority, we observe that the First Appellate Authority had dealt with this matter in depth by examining the nature of the Energy Efficient House built by the Assessee. We concur with the findings of the First Appellate Authority in concluding that the unique nature of house had been :-16-: ITA. No: 508/Chny/2023 constructed by the Assessee using new kind of materials called Expanded Poly Styrene (EPS) and the local authority will approve the building as per the materials like brick and mortar in their norms and getting a permission to construct a house with new materials was not possible. Moreover, the First Appellate Authority had also observed that the property where house was built falls within a Jurisdiction of a Panchayat Board which lies outside the city limits, therefore, obtaining an approval from local authority like Municipality was not mandated. We further concur with the findings of the First Appellate Authority that the innovative approach of the Assessee in constructing renewable energy efficient house cannot be a hindrance for claiming exemption u/s 54F of the Act.

8.7 In the present facts and circumstances of the case and by respectfully following the decision of this Tribunal(Supra), we are of the considered view that the Assessee had factually established the creation of the Energy efficient house by placing on record the relevant documents during the first appellate proceedings and remand proceedings and we sustain the :-17-: ITA. No: 508/Chny/2023 findings of the ld.CIT(A) by dismissing the appeal of the Revenue.