SH. HARMESH KUMAR KALSI,MOHALI vs. ITO, MOHALI

आदेश/ORDER

The present appeal has been preferred by the assessee against the order dated 16.05.2018 of the Commissioner of Income Tax (Appeals)-I, [hereinafter referred to as CIT(A)], Ludhiana.

ITA-925/CHD/2018 Page 2 of 4

the claim of the assessee observing that the property in

question was a plot and not a residential house.

Tribunal vide its order dated 24.09.2015 passed in ITA

1035/CHD/2013 observed that the Statute has given three

years to an assessee to construct a residential house. That if

the assessee constructs a residential house within three years

from the date of transfer of the property pursuant to which the

capital gain has accrued to the assessee, then the assessee is

to be allowed exemption u/s 54 of the Act. The Tribunal,

therefore, observing that since intention of the assessee to

construct a residential house within three years of the date of

construction was not considered/examined by the AO, restored

the matter to the file of the AO to examine the additional

evidence submitted by the assessee regarding intention of the

assessee to construct residential house on the plot in

question.

evidences like Khasra Girdawari and the report of the

Municipal Council observed that the assessee had not applied

for sanction of any plan etc. and that the assessee had failed

to prove that it had constructed the residential house on the

property within three years and accordingly, disallowed the

claim of the assessee.

submitted that as per the directions of the Tribunal, what was

to be seen by the AO was the intention of the assessee to

ITA-925/CHD/2018 Page 3 of 4

construct a residential house on the property. He has

submitted that the assessee has infact constructed a

residential house on the property within three years. The next

limb of the argument of the ld. Counsel is that even if the

assessee could not construct the house within three years, in

the first year i.e. in the year of transfer of property, what is to

be seen is the investment made in the property and the

intention of the assessee to construct a residential house.

findings of the lower authority and has submitted that since

the assessee could not furnish reliable evidence that the

residential house has been constructed on the plot in

question, hence the assessee has been rightly denied the claim

of exemption u/s 54 of the Act.

through record. The ld. counsel for the assessee has relied

upon the copy of Khasra Girdawari to show that in the

Girdawari, the Halka Patwari ( Village Revenue Official) has

mentioned the detail of property as boundary wall and house.

Further, the ld. counsel for the assessee has invited our

attention to a photograph showing one room constructed over

a property. However, in my view, the aforesaid evidence is not

sufficient to hold that the assessee has built a residential

house on the property in question. I, therefore, restore this

matter to the file of the AO to verify, after identifying the

property in question, as to whether a residential house has

been constructed by the assessee on the aforesaid property, if

it is found so, then to allow the claim of the assessee. So far

ITA-925/CHD/2018 Page 4 of 4

as the contention of the ld. counsel for the assessee that even

if the assessee has not constructed the house over the

property, the claim is to be rejected after passing of three

years is concerned, I am not convinced with the aforesaid

averment of ld. counsel for the assessee. No evidence has

been placed on the file to show that the assessee really

intended to construct the property but due to some

extraordinary circumstances beyond the control of the

assessee, the assessee could not construct the property.

Under the circumstances, it cannot be simply assume that

there was really any intention of the assessee to construct the

property. However, as observed above, if on the plot, even as

on today, the property is found constructed with a residential

house, taking into consideration the beneficial provisions of

the Statute promoting housing, the assessee will be allowed

the eligible benefit as per law.

statistical purposes.

Order pronounced in the Open Court on 24.12.2018.

Sd/- ( संजय गग� ) (SANJAY GARG) �या�यक सद�य/ Judicial Member Dated: 21.01. 2019 “Poonam” आदेश क� ��त�ल�प अ�े�षत/ Copy of the order forwarded to : अपीलाथ�/ The Appellant 1. ��यथ�/ The Respondent 2. आयकर आयु�त/ CIT 3. आयकर आयु�त (अपील)/ The CIT(A) 4. �वभागीय ��त�न�ध, आयकर अपील�य आ�धकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 5. गाड� फाईल/ Guard File 6.

आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar