Uma Kachhawa Jaipur v. Ito Jaipur

ITA 409/JPR/2017 | 2007-2008
Pronouncement Date: 12-12-2017 | Result: Dismissed

Appeal Details

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RSA Number 40923114 RSA 2017
Assessee PAN xxxxxxxxxxx
Bench xxxxxxxxxxx
Appeal Number xxxxxxxxxxx
Duration Of Justice 6 month(s) 21 day(s)
Appellant xxxxxxxxxxx
Respondent xxxxxxxxxxx
Appeal Type Income Tax Appeal
Pronouncement Date 12-12-2017
Appeal Filed By Assessee
Tags No record found
Order Result Dismissed
Bench Allotted SMC
Tribunal Order Date 12-12-2017
Assessment Year 2007-2008
Appeal Filed On 22-05-2017
Judgment Text
Vk Dj Vihyh Vf Kdj K T Iqj U K Ihb T Iqj In The Income Tax Appellate Tribunal Jaipur Benches Smc Jaipur Jh Hkkxpan Ys Kk Lnl Ds Le K Before Shri Bhagchand Accountant Member Vk Dj Vihy La Ita No 409 Jp 2017 Fu Kzkj K Ok Z Assessment Year 2007 08 Uma Kachhawa W O Shri Mool Singh Kachhawa 1460 Khunteton Ka Rasta Kishanpole Bazar Jaipur Cuke Vs I T O Ward 7 2 Jaipur Pan No Aeopk 2725 G Vihykfkhz Appellant Izr Fkhz Respondent Fu Kzkfjrh Dh Vksj Ls Assessee By Shri S L Poddar Ms Isha Kanoongo Adv Jktlo Dh Vksj Ls Revenue By Smt Poonam Roy Dcit Lquokbz Dh Rkjh K Date Of Hearing 25 10 2017 Mn Kksk Kk Dh Rkjh K Date Of Pronouncement 12 12 2017 Vknsk Order Per Bhagchand A M This Is The Appeal Filed By The Assessee Emanates F Rom The Order Of The Ld Cit A 5 Jaipur Dated 17 03 2017 For The A Y 2007 08 Wherein The Assessee Has Raised Following Grounds Of Appeal 1 Under The Facts And Circumstances Of The Case The Ld Cit A Has Erred In Confirming The Action Of The Ld Assessing Officer I N Passing The Order U S 147 144 Of The Income Tax Act 1961 Which Is Void A B Initio Deserves To Be Quashed Ita 409 Jp 2017 Uma Kachhawa Vs Ito 2 2 Under The Facts And Circumstances Of The Case T He Ld Cit A Has Erred In Adopting The Cost Of Acquisition Of Rs 2 12 250 By Disallowing The Amount Of Rs 4 04 737 3 Under The Facts And Circumstances Of The Case T He Ld Cit A Has Erred In Not Giving The Benefit Of Rs 7 25 630 U S 54 Cla Imed By The Assessee Regarding Second House Purchase 4 The Assessee Craves Your Indulgence To Add Amend Or Alter All Or Any Grounds Of Appeal Before Or At The Time Of Hearing 2 The Grounds No 1 And 2 Of The Appeal Were Not Pr Essed At The Time Of Hearing Therefore The Same Stands Dismissed As Not Pressed 3 Ground No 4 Is General In Nature And Does Not R Equire Any Adjudication Therefore The Same Stands Dismissed 4 In The Ground No 3 The Issue Involved Is Not G Iving The Benefit Of Rs 7 25 630 U S 54 Of The Income Tax Act 1961 In Short The Act Claimed By The Assessee Regarding Second House Purc Hase The Ld Cit A Has Dealt The Issue Of Claim U S 54 Of The Act While Deciding Ground No 5 In His Order At Para 6 1 To 6 4 Which Are Reproduce D Hereunder 6 1 In The Assessment Order The Ao Has Granted D Eduction Of Rs 20 11 000 U S 54 In Respect Of House Purchased At N Emi Nagar Extension Jaipur For Rs 20 11 000 On 10 11 2006 The Assessee Has Claimed Further Deduction Of Rs 1 51 030 On Accoun T Of Stamp Duty And Registration Charges In Respect Of This Propert Y And Further Deduction Of Rs 7 25 630 Invested In Another Resid Ential House In The Joint Names Of The Assessee And Her Daughter Ita 409 Jp 2017 Uma Kachhawa Vs Ito 3 6 2 In The Remand Report The Assessing Officer Has Observed That Stamp Duty And Registration Charges Of Rs 1 30 720 Paid In Respect Of The New House At Nemi Nagar Extension Jaipur Is Allowable He Has Further Stated That 50 Of Investment Of Rs 7 25 630 Made In The Second House Purchased In The Name Of The Asses See And Her Daughter Can Be Allowed Since Assessee Is 50 Owner Of The Said Property 6 3 I Have Considered The Remand Report The Assess Ment Order And The Submissions Of The Appellant As Regards The Stamp Duty And Registration Charges In Respect Of The New House At Nemi Nagar Extension Jaipur It Is Seen That The Correct Allo Wable Amount Is Rs 1 51 030 Versus Amount Of Rs 1 30 720 Mentioned By The Ao Since Registration Charges Of Rs 20 110 And Copying Char Ges Of Rs 200 Have Not Been Considered By The Ao In The Remand Re Port Accordingly The Ao Is Directed To Grant Further De Duction Of Rs 1 51 030 U S 54 In Respect Of This Amount 6 4 Regarding Further Contention Of The Assessee Cl Aiming Further Deduction Of Rs 7 25 630 In Respect Of The Second House Purchased It Is Observed That The Claim Of Exemption U S 54 I S Allowable Only In Respect Of One New House Property Purchased This W As The Legislative Intent Even Before The Specific Amendme Nt Introduced In Section 54 With Effect From 01 04 2015 This View I S Supported By The Decisions In The Cases Of Pawan Arya Vs Cit 2011 11 Taxmann Com 312 Punjab Haryana And Dcit Vs R V Lokupavan 2008 25 Sot 420 Mumbai Accordingly Further Claim Of Deduction Of Rs 7 25 630 Is Not Allowable This Gr Ound Is Partly Allowed Ita 409 Jp 2017 Uma Kachhawa Vs Ito 4 5 The Brief Facts In A Nutshell Is That The Assess Ee Has Sold A Property Of Rs 50 00 000 And The Case Was Reopened By Issu Ing Notice U S 148 Of The Act The Assessment Was Finalized Determining Tot Al Income Of Rs 27 42 560 The Ld Cit A Has Granted Part Relief To The Assessee The Claim Of Assessee U S 54 Of The Act With Regard To S Econd House Purchase At Rs 7 25 630 Was Not Allowed 6 Bench Heard Both The Sides On This Issue The Ita T Mumbai Bench In The Case Of Smt Syrtle Dsouza Vs Income Tax Of Ficer Ward 19 3 4 Mumbai 2012 24 Taxmann Com 261 Mum Has Consider Ed Such Issue And Decided As Under 18 We Have Heard The Rival Submissions And Peruse D The Relevant Material On Record The Short Controversy Is As To Whether Exemption U S 54 Is Available In Respect Of One House Or More Than One House In The Present Case The Assessee Was Allotted Two Fla Ts On Two Different Stories Which He Claimed As Eligible For Exemption U S 54 Admittedly There Is No Unity Of Construction Between Such Flat S The Special Bench Of The Tribunal In The Case Of Sushila M Jhaveri Supra Has Categorically Held That The Exemption U S 54 Is Ava Ilable Only In Respect Of One House And Not More Than One It Is T Rue That The Honble Karnataka High Court In The Case Of D Ananda Basappa Supra Has Entitled The Assessee To Exemption U S 54 In Respect Of Two Residential Houses However It Is Also Equally True That The Honble Jurisdictional High Court In The Case Of K C Kaushik Supra And The Honble Punjab Haryana High Court In Pawan Arya Supra Ita 409 Jp 2017 Uma Kachhawa Vs Ito 5 Have Held The Assessee To Be Entitled To Exemption U S 54 Only In Respect Of One Residential House The Learned Ar St Rongly Argued That The Judgment In The Case Of Karnataka High Court Be Followed In Preference To That Of The Special Bench Of The Trib Unal And Other High Courts As Noted Above A Feeble Unsuccessful Attemp T Was Made To Distinguish The Judgment Of The Honble Jurisdictio Nal High Court In The Aforenoted Case In Our Considered Opinion This Contention Deserves The Fate Of Dismissal At The Very Outset F Or The Reason That In The Case Of K C Kaushik Supra It Has Been Held That In The Absence Of Any Provision To The Contrary In My Judgment T He Petitioner Is Entitled To Avail Of The Relief In Respect Of The C Apital Gain Arising On The Sale Of His Flat In 1979 Against The Flat Purch Ased In That Year As Also Against The Flat Purchased On July 26 1980 I T Has Of Course To Be Adjusted Against One Of The Flats Only I Am Inclined To Hold That It Is For The Petitioner To Claim Relief Under This Section Against The Purchase Of Any One Of The Flats Provided That The Other Conditions Mentioned In The Section Are Satisfied A Cursory Look At The Mandate Of The Above Judgment Fairly Indicates That The Exemption U S 54 Is Available Only In Respect Of On E House And Not More Than One House The Judgment Of The Honble Ju Risdictional High Court Which Is Binding On The Tribunal Can Un Der No Circumstances Be Ignored In Preference To The Judg Ment Of Any Other Honble High Courts It Is Relevant To Note That Th E Decision Of The Delhi Bench Of The Tribunal In The Case Of Gita Duggal Supra Is Distinguishable Inasmuch As In That Case The Assess Ee Was Allotted Basement And Ground Floor On Which Exemption Was Gi Ven But The Said Benefit Was Denied On The First Floor And Seco Nd Floor As They Were Let Out There Was No Dispute That All The Bas Ement Ground Floor First Floor And Second Floor Constituted One Residential House For Which The Tribunal Was Pleased To Decide The Is Sue Of Exemption Ita 409 Jp 2017 Uma Kachhawa Vs Ito 6 In Assessees Favour The Facts Of The Instant Case Are Different Inasmuch As The Assessee Was Allotted Two Flats On Two Different Stories It Is Not The Case Of The Assessee That Bo Th The Flats On Different Floors Were Used As One Residential House Naturally It Could Not Have Been So For The Reason Of These Two Flats Situated On Different Stories Can Not Constitute One House Respectfully Following The Judgment Of The Honble Jurisdictional High Cou Rt And The Special Bench In The Above Referred Cases We Hold That The Learned Cit A Was Justified In Restricting The Benefit Of Exemption U S 54 Only In Respect Of One Flat This Ground Is Not Allowed The Honble Punjab Haryana High Court In The Case Of Pawan Arya Vs Cit 2011 11 Taxmann Com 312 P H Has Held As Unde R As Regard Claim For Exemption Against Acquisition O F Two Houses Under Section 54 The Same Was Not Admissible In Plain La Nguage Of Statute Thus No Substantial Question Of Law Arose From Th E Tribunals Order In The Result The Assessees Appeal Was To Be Dismiss Ed Considering The Factual Aspect Of This Case And The Case Laws Relied Upon This Ground Of Assessees Appeal Is Dismissed 7 In The Result Appeal Of The Assessee Is Dismis Sed Order Pronounced In The Open Court On 12 12 2017 Sd Hkkxpan Bhagchand Ys Kk Lnl Accountant Member Tk Iqj Jaipur Fnukad Dated 12 Th December 2017 Ita 409 Jp 2017 Uma Kachhawa Vs Ito 7 Ranjan Vknsk Dh Izfrfyfi Vxzsfkr Copy Of The Order Forwarded To 1 Vihykfkhz The Appellant Smt Uma Kachhawa Jaipur 2 Izr Fkhz The Respondent The I T O Ward 7 2 Jaipur 3 Vk Dj Vk Qdr Cit 4 Vk Dj Vk Qdrvihy The Cit A 5 Fohkkxh Izfrfuf K Vk Dj Vihyh Vf Kdj K T Iqj Dr Itat Jaipur 6 Xkmz Qkbzy Guard File Ita No 409 Jp 2017 Vknskkuqlkj By Order Lgk D Iathdkj Asst Registrar