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Income Tax Appellate Tribunal, SURAT BENCH, SURAT
Before: SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM
आदेश / ORDER
PER DR. A. L. SAINI, AM: By way of this appeal, the assessee appellant has called into question correctness of impugned order passed by the learned Principal Commissioner of Income Tax (in brief “Ld PCIT”) under section 263 of the Income Tax Act, 1961, in the matter of assessment under section 143(3) of the Act, for the assessment year 2013-14, on the following grounds: “
01. The Ld PCIT was not just and proper on the facts of the case and in law in passing the order u/s 263 considering the assessment order passed u/s 143(3) as erroneous and prejudicial to the interest of Revenue. 02.The Ld PCIT was not just and proper on the facts of the case and in law in not allowing effective opportunity of hearing in the matter.
03. The Ld PCIT was not just and proper on the facts of the case and in law in disallowing the deduction u/s 54 of the Act.”
435/SRT/2018 AY.2013-14 Dineshbhai J Sanspara 2. Brief facts, as discernible from the orders of lower authorities are that assessee filed his return of income for the assessment year 2013-14 on 30.03.2016 declaring total income at Rs.34,91,530/-, comprising profit from trading in land /plots u/s 44AD, share of profit from two firms treated as exempt income from business consisting of export commission, income from house property, capital gains and income from other sources. The scrutiny assessment in the assessee’s case for AY 2013-14 was finalized, vide order u/s143(3) dated 14.03.2016, by accepting the returned income of Rs.34,91,530/-.
4.Subsequently, Ld. PCIT exercised his jurisdictional power u/s 263 of the Act. The Ld.PCIT, on perusal of the scrutiny assessment, observed that the conditions relating to investment in new asset within the prescribed time frame, for allowance of deduction u/s 54 of the Act were not satisfied by the assessee and therefore there was wrong allowance made by assessing officer on the claim of deduction u/s 54 of the Act.
The ld PCIT also noted that assessee has claimed various expenses which were not apparently necessary for earning interest income but the same had been allowed by the assessing officer.
Therefore, a show cause letter dated 15.01.2018 was issued to the assessee to explain, as to why in view of the reasons cited in detail in the show cause letter, remedial action u/s 263 of the Act, should not be taken in assessee’s case.
7.In response to the show cause letter, the assessee-company had submitted its reply, vide letter dated 27.01.2018. The contents of the letter are reproduced as follows: “Kindly refer to your notice dated 15.01.2018 under section 263 proposing to revise the assessment made by the Dy. Commissioner of Income Tax Circle 1(3), Surat in the case of above named client for the assessment year 2013-14. In the order passed u/s 143(3) your goodself has observed that following claim/expenses required to be disallowed in the interest of the revenue.
435/SRT/2018 AY.2013-14 Dineshbhai J Sanspara
Exemption u/s 54/54F claimed of Rs.54,35,981/- During the year under consideration the assessee has sold out residential flats No.601 & 701 of Sahas property Mumbai on 26.09.2012 and earned long term capital gain. Against the sale transaction the assessee was required to invest for purchase of residential unit before one year or after two years from the date of sale of property i.e. 26.09.2012.
The assessee has rightly claimed deduction u/s 54 as he has received sale consideration of the flat as under and invested accordingly. Flat Nop.601 Date of receipt Mode of receipt Name of Bank Flat Purchaser’s name No.601 29.11.10 Cheque HDFC Bank 21,50,000 Hansaben Nitinkumar Vasa and Pinal Nitinkumar Vasa No.391262 02.08.11 Cheque HDFC Bank 15,50,000 Hansaben Nithinkumar Vasa and Pinal Nitinkumar Vasa No.391262 26.07.11 Cheque HDFC Bank 37,00,000 Hansaben Nitinkumar Vasa and Pinal Nitinkumar Vasa No.302545 02.08.11 Cheque HDFC Bank 1,12,500 Hansaben Nitinkumar Vasa and Pinal Nitinkumar Vasa No.391262 01.09.12 Cheque HDFC Bank 1,12,500 Hansaben Nitinkumar Vasa and Pinal Nitinkumar Vasa No.391264 01.09.12 Cheque HDFC Bank 1,12,500 Hansaben Nitinkumar Vasa and Pinal Nitinkumar Vasa No.302555 01.09.12 Cheque HDFC Bank 1,12,500 Hansaben Nitinkumar Vasa and Pinal Nitinkuma Vasa No.302554
Flat No.701 Date of receipt Mode of receipt Name of Flat Purchaser’s name Bank No.601 29.11.10 Cheque HDFC Bank 21,50,000 Nitin Chandulal Vasa and No.302541 02.08.11 Cheque No.65753 HDFC Bank 21,50,000 Nitin Chandulal Vasa and 26.07.11 Cheque No.65428 HDFC Bank 21,50,000 Nitin Chandulal Vasa and 02.08.11 Cheque HDFC Bank 7,16,667 Nitin Chandulal Vasa and No.302543 02.08.11 Cheque No.65754 HDFC Bank 7,16,667 Nitin Chandulal Vasa and 02.08.11 Cheque No.65429 HDFC Bank 7,16,666 Nitin Chandulal Vasa and 28.10.11 Cheque HDFC Bank 75,000 Nitin Chandulal Vasa and 28.10.11 Cheque HDFC Bank 75,000 Nitin Chandulal Vasa 28.10.11 Cheque No.65756 HDFC Bank 75,000 Nitin Chandulal Vasa 28.10.11 Cheque No.65757 HDFC Bank 75,000 Nitin Chandulal Vasa and 28.10.11 Cheque No.65431 HDFC Bank 75,000 Nitin Chandulal Vasa and 435/SRT/2018 AY.2013-14 Dineshbhai J Sanspara
The assessee made investment in residential property as under: YEAR ON SALE FLAT AMOUNT LAND DEVELOPMENT CONSTRUCTION CONSIDERATION RECIVED PURCHASED EXPENSES OF No. RECD. 20 PLOTS F.Y 2010-11 601 21,50,000 13,02,408 12,25,037 62,325 ADVANCE RECD 701 21,50,000 TOTAL 43,00,000 13,02,408 12,25,037 62,325 701 69,00,000 TOTAL 1,22,62,500 29,41,744 14,56,696 F.Y 2012-13 601 3,37,500 12,69,200 2,62,692 DEED. 701 … … EXECUTED TOTAL 601 78,50,000 … … 12,69,200 2,62,692 … .. 701 90,50,000 … … 1,69,00,000 13,12,408 54,35,981 17,81,713
In short, the assessee has received sale consideration in piecemeal (as mentioned above in tabular format) and has constructed the residential property accordingly. Therefore, claim u/s 54 is admissible. In letter dated 11.12.15 section 54F written through oversight which may please be rectified. The Calcutta High Court has observed in the case of CIT vs. Bharati C Kothari 160 CTR 165 (Cal) that: “The purpose behind the exemption under section 54(1) is that if any assessee sales his residential house and purchase a new house against those sale consideration, the capital gains arising out of the sale of the earlier house should not be taxed. Whether assessee himself constructs the house or he gets it constructed by a contractor or third party does not make any difference. The basic requirement for the purpose of relief under section 54(1) is that the assessee should invest the sale proceeds in the construction of residential house, which has been constructed for the assessee. “Here in the case, there was no dispute that the assessee has invested the amount towards plot of land, and incurred expenses for development of land and construction of property. Intention of the assessee was to investment money in a residential unit to avail exemption u/s 54. Delhi High Court has observed in the case of CIT vs. Smt. Brinda Kumari [2022] 253 ITR 343 that “giving advance to Builder for construction is equivalent to construction”
During the course of assessment proceedings all relevant details have been furnished in respect of subject matter and after considering all documents the Assessing Officer has allowed the deduction; only deduction of construction amount of Rs.17,81,713/- has not been allowed as same was not claimed. And for that rectification application was made separately on 15.4.2016; which till not disposed off. In short the office has not passed the order in haste but all relevant submission and documents have been considered and allowed the deduction so claimed. Therefore, it
435/SRT/2018 AY.2013-14 Dineshbhai J Sanspara cannot be said that the order of the Assessing Officer was erroneous and prejudicial to the interest of the revenue. Allahabad High Court in the case of CIT vs. H K Kapoor 150 CTR 128 (All) 1998 has also observed that “Exemption on capital gains under section 54 cannot be refused merely on the ground that construction of new house had begun before the sale of old house. TS-51 ITAT-2015 (HYD)-O has also held that “Date of completion of construction and not date of commencement of construction relevant for purpose of Sec.54 when investment in new property made prior to date of earning of capital gain-ITAT allows capital gain exemption u/s 54 to the assessee for investment made in construction of a residential house started much before earning of capital gains by assessee. Here in the case of there is no dispute that the assessee has invested the amount towards plot of land, and incurred expense for development of land and construction of property. Intention of the assessee to invest money in a residential unit to avail exemption u/s 54 Delhi High Court has observed in the case of CIT vs. Smt. Brinda Kumari (2002) 253 ITR 343 that “Giving advance to Builder for construction is equivalent to construction” The Assessing Officer has duly considered the explanation during the course of assessment proceedings and allowed the exemption u/s 54. Disallowance of expenses claimed like fuel expenses, car depreciation, profession tax etc. The assessee has claimed above expenses against the interest income received from the firm; which was according to you is not admissible as the same were not necessary for earning of interest income and therefore same were required to be disallowed in the interest of the revenue. In this connection, it is submitted that interest on capital received /receivable from the firm is taxed under the head business income and therefore the same are admissible. Assessing Officer rightly allowed after applying his mind. Expenses which were claimed were not hide expenses and therefore the officer had not allowed the expenses through oversight. Officer was of the opinion that the assessee has rightly claimed the expenses and has allowed accordingly. Therefore, cannot be said that the order of the Assessing Officer was erroneous and prejudicial to the interest of the revenue. According to the section 28 of the Income Tax Act it has specifically provided that interest and remuneration paid or payable to the partner by the firm is to be taxed as business income. Accordingly, the income is to be computed as business income under section 29 to 440. There is, therefore, every opportunity, in computing the income under the head income from business / profession, of claiming deduction of expenses which a partner may have to incur for the purpose of his business. Expenses are not allowable against the exempted income only, and therefore expenses cannot be admissible against the share of profit from the firm and not against the income from interest and remuneration. From the above narrated facts it is submitted that exemption claimed u/s 54 and 435/SRT/2018 AY.2013-14 Dineshbhai J Sanspara various expenses claimed against the business income (interest from the firm), rightly allowed by the officer after applying his mind on the facts of the case and therefore it is not erroneous and prejudicial to the interest of the Revenue. Therefore Section 263 is not attracted in the case of assessee. Therefore, it is prayed that action u/s 263 may please be dropped and accept the income assessed by the Office determined in the order passed u/s 143(3) of the Act.”
However, ld PCIT has rejected the contention of the assessee and observed on perusal of the scrutiny records and it was seen from the computation of long term capital gains from sale of flat No.601 and flat No.701 of Sahas Building, Mumbai on 28/09/2012, that, against the sale value of the original asset at Rs.1,27,56,000/- the assessee had claimed indexed cost of acquisition at Rs.6,38,002/-, indexed cost of improvement at Rs.39,24,676/-, LTCG exempt u/s 54 of Rs.54,35,981/- and the net taxable LTCG at Rs.27,57,341/-.
Further from the details and documents relating to the new asset comprising purchase of land and construction thereon, on the basis of which exemption u/s 54 has been claimed, it was observed by ld PCIT that land at village Ghaludi on which construction was carried out, was purchased during 2010 for cost of Rs.27,35,000/-. The said land was converted into non-agricultural land in January 2011. In respect of the said land, the assessee has obtained permission from 42 residential plots, out of which 20 plots were kept by the assessee for own residential purpose under the head Bungalow land at Ghaludi and the remaining 22 plots were transferred by the assessee to his proprietary concern M/s Balaji Corporation, as stock-in-trade.
10 The ld PCIT observed, vide assessee’s letter dated 11/12/2015, furnished before the assessing officer during the assessment proceedings, the assessee has submitted that the amount of Rs.54,35,981/- claimed by him as exempt u/s 54 is actually the cost of development of the land comprising 20 plots which were kept by the assessee for own residential purpose under the head Bungalow land at Ghaludi.
435/SRT/2018 AY.2013-14 Dineshbhai J Sanspara 11. In the above context, it was observed by ld PCIT that the original asset viz. flat No.601 and 701 of Sahas Building, Mumbai, have been sold on 28/09/2012. As discussed above, the new asset comprising land at Ghaludi on which the Bungalow was constructed for claiming exemption u/s54 had been purchased during the year 2010. So, the investment was made before the prescribed period of one year. Hence, the exemption claimed u/s 54 is not allowable, in the case of asset. It is important to note that while the assessee has given date-wise details of the receipts of sale proceeds in respect of the two flats viz. 601 and 701 of Sahas Building Mumbai, only broad annual figures of investment made in residential property has been submitted in the explanatory letter dated 27.01.2018 without furnishing the dates of investments which would render calculation of the qualifying periods allowed u/s 54 for investment in the new asset. Only final figures of investment mainly on development of land and to lesser extent on construction is furnished which can at best be treated as unsubstantiated expense claims in the absence of any evidentiary material regarding actual expense. Only the purchase of land is evidenced by documentary proof but as discussed above the purchase of the land is prior to the period permitted in the Act for claiming deduction u/s 54 of the Act. The rest of the expenses claimed mainly as land development expenses and as construction expenses are unsubstantiated expense claims and it cannot be said that timely construction of residential unit as envisaged u/s 54 has taken place. In the computation of income, exemption has been claimed by the assessee u/s 54 of the Act.
The ld PCIT noted that section 54 stipulates that in lieu of original asset comprising residential unit sold, there should be purchase of a residential unit within one year before or two years after the sale of the original asset or there should be construction of a residential unit within three years of the sale of the original asset to avail exemption u/s 54. As discussed above, the assessee has neither purchased nor constructed any residential unit during the allowable period of one year before or two/three years after the sale of the original asset. What is evidenced, is only the purchase of land and that too not within the allowable
435/SRT/2018 AY.2013-14 Dineshbhai J Sanspara period. The LTCG exemption claimed is also explained by the assessee, vide his letter dated 11.12.2015 before the assessing officer as cost of development of land and subsequently vide letter dated 27.01.2016, as mainly expenditure on development of land and to a lesser extent on construction through neither of these expense claims are duly substantiated. Therefore, the claim of exemption u/s 54 is not allowable. The case laws relied upon by the assessee are of no help to him since this is not a case of actual construction where only the date of construction is in dispute. The Court decisions relied upon by the assessee are of cases where there was actual construction and only the date of construction was in dispute.
13.The ld PCIT noted that in the computation of income the assessee had claimed exemption u/s 54, but in the assessee’s letter dated 11.12.2015, filed during the assessment proceedings, the assessee had laid claim to exemption u/s 54F. However, Section 54F stipulates that in lieu of original asset comprising non- residential unit sold, there should be purchase of a residential unit within one year before or two years after the sale of the original asset or there should be construction of a residential unit within three years of the sale of the original asset two avail exemption u/s 54. However, in the case of the assessee, the original asset sold viz. flat No.601 and 701 of Sahas Building, Mumbai are residential units and therefore section 54F of the IT Act is not applicable. On being queried in the show-cause letter dated 15.01.2018, in this regard, the assessee vide his letter dated 27.01.2018 has now stated that the mistake was committed through oversight and the deduction is claimed u/s 54 and not u/s 54F of the Act.
Therefore ld PCIT held that claim of exemption u/s 54 of the Act to the tune of Rs.54,35,981/- was therefore required to be disallowed by the assessing officer in the case of assessee for the AY 2013-14. However, no such disallowance has been made in the assessment order u/s 143(3) dated 14/03/2016, passed in the case of assessee for the AY 2013-14. Thus, it was held by ld PCIT that the 435/SRT/2018 AY.2013-14 Dineshbhai J Sanspara assessment order u/s 143(3) dated 14.03.2016 passed in the case of assessee for A.Y 2013-14 is erroneous and prejudicial to the interest of Revenue.
The ld PCIT also held that assessee had claimed various expenses like fuel expenses, car depreciation, professional tax etc, against interest income earned by the assessee from partnership firm M/s Sahil Satr. Since these expenses do not appear to be expenses necessary for earning of the interest income, the same were required to be disallowed. However, no such disallowance has been made by the assessing officer in the assessment order. In response to query raised in the show- cause letter dated 15.01.2018, the assessee has referred to Court decisions where it was held that expenses relatable and necessary for earning partners share of profit and partners remuneration and interest were allowable expenses. However, the facts of the assessee’s case are different. He has shown interest income and exempt share of profit from the firm M/s Sahil Satr. Since the share of profit is claimed as exempt u/s 10(2A), no expense would be allowable against the same. As far as the interest income is concerned, the assessee has not been able to establish that the said expenses were incurred to earn the interest income. Therefore, ld PCIT held that assessment order u/s 143(3) dated 14.03.2016, passed in the case of the assessee for AY 2013-14 is therefore erroneous and prejudicial to the interest of Revenue.
Aggrieved by the order of the Ld. PCIT, the assessee is in appeal before us.
At the outset, Learned Counsel for the assessee, states that assessee does not wish to press the issue raised by Ld.PCIT, in last para of his order relating to claim of various expenses, like fuel expenses, car depreciation, professional tax etc, against interest income earned by the assessee from partnership firm M/s Sahil Satr. Since, this issue has not been pressed by assessee, therefore we do not adjudicate it.
435/SRT/2018 AY.2013-14 Dineshbhai J Sanspara 18. About the claim of exemption u/s 54 of the Act to the tune of Rs.54,35,981/- ,the Ld. Counsel submits that during the assessment stage, the Assessing Officer made adequate enquiries in respect of the said issue raised by the ld PCIT. The assessee submitted its reply before the assessing officer, in response to notice under section 142(1) of the Act, therefore, order passed by Assessing Officer should not be prejudicial to the interest of Revenue. The Ld. Counsel submits that main issue before Ld.PCIT, was that deduction u/s 54 of the Act claimed by the assessee should not be allowed by the Assessing Officer, as assessee did not satisfy the conditions of section 54 of the Act. For this, Ld. Counsel submits that assessee has constructed house before one year from sale of such property, however plot of land was purchased long back and assessee has not claimed deduction on account of land. The assessee claimed the deduction on account of construction expenses u/s 54 of the Act and the cost of the plot of land was not considered by the assessee for the purpose of deduction under section 54 of the Act. This aspect has been examined by the assessing officer therefore order passed by the assessing officer is neither erroneous nor prejudicial to the interest of Revenue.
On the other hand, Ld. CIT-DR for the Revenue submits that assessee purchased land on 27.01.2010, however sold the assets on 28.09.2012 therefore it does not fall within one year prior to the sale of asset, therefore cost of the land should not be allowed as deduction u/s 54 of the Act. Therefore Ld. CIT-DR contended that the land was purchased by the assessee beyond the prescribed limit therefore deduction should not be allowed on the cost of land.
We have heard both the parties. We note that assessee filed paper book wherein on page nos.39 to 60, cost of construction of the house is mentioned and assessee has claimed the construction cost only which was incurred within one year prior to sale of asset, therefore we note that assessee is eligible to claim the deduction u/s 54 of the Act. The assessee never claimed the deduction on cost of land. During the assessment stage, the assessing officer has examined all these
435/SRT/2018 AY.2013-14 Dineshbhai J Sanspara aspects therefore order passed by the assessing officer is neither erroneous nor prejudicial to the interest on Revenue. The Hon’ble Apex Court in Malabar Industries Ltd. vs. CIT [2000] 243 ITR 83(SC) wherein their Lordship have held that twin conditions needs to be satisfied before exercising revisional jurisdiction u/s 263 of the Act by the CIT. The twin conditions are that the order of the Assessing Officer must be erroneous and so far as prejudicial to the interest of the Revenue. In the following circumstances, the order of the AO can be held to be erroneous order, that is (i) if the Assessing Officer’s order was passed on incorrect assumption of fact; or (ii) incorrect application of law; or (iii) Assessing Officer’s order is in violation of the principle of natural justice; or (iv) if the order is passed by the Assessing Officer without application of mind; (v) if the AO has not investigated the issue before him; then the order passed by the Assessing Officer can be termed as erroneous order. Coming next to the second limb, which is required to be examined as to whether the actions of the AO can be termed as prejudicial to the interest of Revenue. When this aspect is examined, one has to understand what is prejudicial to the interest of the revenue. The Hon’ble Supreme Court in the case of Malabar Industries (supra) held that this phrase i.e. “prejudicial to the interest of the revenue’’ has to be read in conjunction with an erroneous order passed by the Assessing Officer. Their Lordship held that it has to be remembered that every loss of revenue as a consequence of an order of Assessing Officer cannot be treated as prejudicial to the interest of the revenue. When the Assessing Officer adopted one of the courses permissible in law and it has resulted in loss to the revenue, or where two views are possible and the Assessing Officer has taken one view with which the CIT does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the revenue “unless the view taken by the Assessing Officer is unsustainable in law”.
Taking note of the aforesaid dictum of law laid down by the Hon’ble Apex Court, and considering the facts of the case, we note that a mere observation that no proper details have been obtained, cannot be sufficient to come to a conclusion that the AO did not make proper and adequate inquiries
435/SRT/2018 AY.2013-14 Dineshbhai J Sanspara which he ought to have made in the given facts and circumstances of this case. In the conclusion we are of the view that none of the reasons set out by the CIT for invoking the jurisdiction u/s 263 of the Act are sustainable. The impugned order of the CIT has to be quashed for the reason that order of the AO sought to be revised in the impugned order was neither erroneous nor prejudicial to the interest of the revenue for the reason of any lack of inquiry that the AO ought to have made in the given facts and circumstances of the case. We accordingly quash the order u/s 263 of the Act and allow the appeal of the assessee, only for the exemption/deduction of Rs.54,35,981/-.
In the result, appeal of the assessee is partly allowed.
Order is pronounced on 24/01/2023 by placing record on notice board.