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Income Tax Appellate Tribunal, CUTTACK
Before: SHRI N.S SAINI
This is an appeal filed by the assessee against the order of CIT(A)-
1, Bhubaneswar, dated 28.2.2017 for the assessment year 2012-2013.
The sole issue involved in this appeal is that the CIT(A) erred in
confirming the order of the Assessing Officer disallowing deduction
u/s.54F(1) of the Act for Rs.11,35,701/-.
The brief facts of the case are that the assessee got compensation
money of Rs.11,62,893/- towards his share of the land compulsorily
acquired by the Government. The assessee earned long term capital gain
of Rs.11,35,701/-. The assessee claimed deduction u/s. 54F (1) of the
2 ITA No. 143/CT K/ 2017 Asse ssment Year :20 12- 13 Act for Rs.11,35,701/- since the compensation amount was invested in
the construction of a new building. The Assessing officer did not allow the
claim of deduction u/s.54F(1) of the Act to the assessee on the ground
that the assessee possesses more than one residential building and
proviso (a)(i) to section 54F(1) debars the assessee for claiming the
same.
On appeal, the CIT(A) confirmed the action of the Assessing Officer.
Ld A.R. of the assessee submitted that the Assessing Officer got
enquiry conducted through Inspector, who visited the residence of the
assessee in Nuapatna, Pratap Sasan, Post: Balakati, where he was staying
in a two storied building with his wife and children. The assessee
submitted that his brothers are staying separately in different houses
situated at Uttara Chhak which comes under Sardeipur Mouza and those
houses are also in the name of their father Late Sudam Charan Khatei.
The house in which he is staying is the house which comes in his share in
village property as no formal partition is made among the brothers. The
Assessing Officer therefore held that he was the owner of one house
property at the time of sale of the original asset giving rise to long term
capital gain and, therefore, he was not entitled to deduction u/s.54F of
the Act. He submitted that as per proviso clause (a)((i) to Section 54F(1)
of the Act, the assessee would not be entitled to deduction u/s.54F(1),
where he owns more than one residential house, other than the new
asset, on the date of transfer of the original asset. He argued that the
3 ITA No. 143/CT K/ 2017 Asse ssment Year :20 12- 13 Assessing Officer has mis-directed himself in concluding that as per the
said proviso, if the assessee owns one residential house other than new
assets on the date of transfer of the original asset, he would not be
entitled to deduction u/s.54F of the Act. Therefore, he prayed that the
disallowance should be deleted.
On the other hand ld D.R. supported the orders of lower authorities.
I have heard the rival submissions, perused the orders of lower
authorities and materials available on record. The undisputed facts giving
rise to this appeal are that the Assessing Officer disallowed deduction
u/s.54F of the Act for Rs.11,35,701/- being long term capital gain arising
from sale of land on the ground that he was the owner of one residential
building on the date of transfer of the original assets and, therefore, was
not entitled to deduction as per proviso (a)(i) to Section 54F(1) of the
Act. The same was confirmed in appeal by the CIT(A). I find that the
said proviso (a)(i) to section 54F(1) of the Act reads as under:
“Provided that nothing contained in this sub-section shall apply where – (a) The assessee –
(i) Owns more than one residential house, other than the new asset, on the date of transfer of the original asset’”
Thus, a reading of the above shows that the assessee is not entitled to
deduction u/s.54F(1) of the Act, if he owns more than one residential
house on the date of transfer of the original asset excluding new asset.
4 ITA No. 143/CT K/ 2017 Asse ssment Year :20 12- 13 In the instant case, the assessee on the date of transfer of original asset
was the owner of one house property excluding new asset and, therefore,
is entitled to deduction u/s.54F(1) of the Act on the long term capital
gains of Rs.11,35,701/- arising out of transfer of land. Hence, I set aside
the orders of lower authorities and delete the disallowance of deduction of
Rs.11,35,701/- and allow the ground of appeal of the assessee.
In the result, appeal filed by the assessee is allowed.
Order pronounced in the open court on 04 /08/2017. Sd/- (N.S Saini) ACCOUNTANT MEMBER
Cuttack; Dated 04/08/2017 B.K.Parida, SPS Copy of the Order forwarded to : 1. The appellant : Prafulla Kumar Khatei, Plot No.E-17, BJB Nagar, Bhubaneswar 2. The Respondent. ITO, Ward 2(3), Bhubaneswar 3. The CIT(A) -1, Bhubaneswar 4. Pr.CIT-1, Bhubaneswar 5. DR, ITAT, Cuttack 6. Guard file. BY ORDER, //True Copy//
SR.PRIVATE SECRETARY ITAT, Cuttack