Smt.Mercy George L/h of Sri.George Abraham, Kottayam v. The ITO, Wd-1, , Kottayam

ITA 511/COCH/2019 | 2013-2014
Pronouncement Date: 05-11-2019 | Result: Allowed

Appeal Details

RSA Number 51121914 RSA 2019
Assessee PAN AFTPA5366H
Bench Cochin
Appeal Number ITA 511/COCH/2019
Duration Of Justice 2 month(s) 2 day(s)
Appellant Smt.Mercy George L/h of Sri.George Abraham, Kottayam
Respondent The ITO, Wd-1, , Kottayam
Appeal Type Income Tax Appeal
Pronouncement Date 05-11-2019
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 05-11-2019
Date Of Final Hearing 05-11-2019
Next Hearing Date 05-11-2019
Last Hearing Date 14-10-2019
First Hearing Date 14-10-2019
Assessment Year 2013-2014
Appeal Filed On 02-09-2019
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH COCHIN BEFORE SHRI CHANDRA POOJARI AM & SHRI GEORGE GEORGE K JM ITA NO. 511 /COCH/201 9 : ASST.YEAR 201 3 - 201 4 SMT.MERCY GEORGE L/H OF LATE SRI. GEORGE ABRAHAM C/O.THOMAS CHERIAN FCA CHARTERED ACCOUNTANT KERALAPURAM BUILDING SREENIVASA AYYAR ROAD KOTTAYAM 686 001. PAN : AFTPA5366H . VS. THE INCOME TAX OFFICER WARD 1 KOTTAYAM. (APPELLANT) (RESPONDENT) APPELLANT BY : SRI.THOMAS CHERIAN FCA RESPONDENT BY : SMT.A.S.BINDHU SR.DR DATE OF HEARING : 0 5 .11.2019 DATE OF PRONOUNCEMENT : 05 .11. 201 9 O R D E R PER GEORGE GEORGE K JM : THIS APPEAL AT THE INSTANCE OF THE ASSESSEE IS DIRECTED AGAINST CIT(A) S ORDER DATED 02.07.2019 . THE RELEVANT ASSESSMENT YEAR IS 201 3 - 201 4 . 2. T HE GROUNDS RAISED READ AS FOLLOW : - 1. THE ASSESSMENT ORDER IS WRONG IN LAW AND ON FACTS SO FAR AS PREJUDICIAL TO THE INTEREST OF THE APPELLANT. 2. THE APPELLANT HAD NOT CONCEALED ANY PARTICULARS OF INCOME. 3. THE APPELLANT HAS PURCHASED A RESIDENTIAL HOUSE AND CLAIMED DEDUCTION UNDER THE RELEVANT SECTION OF THE I.T.ACT. THE ACT DOES NOT SPECIFICALLY STATES THAT FOR CLAIMING SUCH EXEMPTION THE ENTIRE INVESTMENT SHOULD ITA NO. 511 / COCH /201 9 . SMT.MERCY GEORGE L/H OF LATE SRI.GEORGE ABRAHAM 2 BE FROM THE CAPITAL GAIN OR NO OTHER FUNDS BE USED FOR PURCHASE OF NEW ASSET. LIKEWISE THE ASSESSING OFFICER CANNOT DENY THE ELIGIBLE INVESTMENT U/S 54 MADE WITHIN ONE YEAR PRIOR TO THE DATE OF TRANSFER OF PROPERTY. ON THE BASIS OF ABOVE AND OTHER GROUNDS AND ARGUMENTS THAT MAY BE PRESENTED AT THE TIME OF HEARING I REQUEST THAT THE ORDER OF THE ASSESSING OFFICER MAY BE CANCELLED. 3. BRIEF FACTS OF THE CASE ARE AS FOLLOW: - THE ASSESSEE DURING THE RELEVANT ASSESSMENT YEAR HAS SOLD HOUSE WHEREIN HE HAD 50% SHARE ON 12.04.2012 FOR A TOTAL CONS IDERATION OF RS.2 60 00 000. THE ASSESSEE HAD PURCHASED RESIDENTIAL PROPERTY FOR A SUM OF RS.85 30 475 ON 15.09.2011. IN THE RETURN OF INCOME FILED FOR THE ASSESSMENT YEAR 2013 - 2014 THE ASSESSEE HAD CLAIMED EXEMPTION U/S 54 OF THE I.T.ACT FOR THE HOUSE PU RCHASED ON 15.09.2011 . THE ASSESSING OFFICER DISALLOWED THE CLAIM OF EXEMPTION U/S 54 OF THE I.T.ACT STATING THAT THE PURCHASE WAS MADE USING OTHER FUNDS AND SALE PROCEEDS WERE NOT USED FOR THE PURCHASE OF THE NEW ASSET. 4. AGGRIEVED BY THE ASSESSMENT ORDER DENYING THE CLAIM OF EXEMPTION U/S 54 OF THE I.T.ACT THE ASSESSEE PREFERRED AN APPEAL TO THE FIRST APPELLATE AUTHORITY. THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. THE CIT(A) RELIED ON THE JUDGMENT OF THE HONBLE KERALA HIGH COURT IN THE CASE O F V. R.DESAI 2011 TAX PUB 1074. 5. AGGRIEVED BY THE ORDER OF THE CIT(A) THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. THE LEARNED AR SUBMITTED THAT THE ISSUE IN QUESTION IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT OF THE HONBLE KERALA HIGH COURT IN THE CASE OF ITO V. K.C.GOPALAN [(1999) 107 TAXMAN ITA NO. 511 / COCH /201 9 . SMT.MERCY GEORGE L/H OF LATE SRI.GEORGE ABRAHAM 3 591 (KER.)] . THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND STRONGLY SUPPORTED THE ORDERS PASSED BY THE INCOME - TAX AUTHORITIES. 6. WE HAVE HEARD THE RIVAL SUBMISS IONS AND PERUSED THE MATERIAL ON RECORD. SECTION 54 OF THE I.T.ACT DOES NOT PROHIBIT THE ASSESSEE TO RAISE FUNDS OR BORROW MONEY FOR INVESTMENT IN THE HOUSE PROPERTY. THE SECTION 54 OF THE I.T.ACT DOES NOT SPECIFICALLY STATE THAT CLAIMING EXEMPTION THE EN TIRE INVESTMENT SHOULD BE FROM CAPITAL GAINS OR NO OTHER FUNDS BE USED FOR PURCHASE OF NE W ASSET. THE ONLY CONDITION IMPOSED U/S 54 IS THAT INVESTMENT SHOULD BE MADE PRIOR TO ONE YEAR OR WITHIN TWO YEARS OF TRANSFER OF THE PROPERTY FROM WHICH CAPITAL GAIN IS EARNED. THE JUDGMENT RELIED ON BY THE CIT(A) IS NOT APPLICABLE TO THE FACTS OF THIS CASE. IN THE CASE CONSIDERED BY THE HONBLE KERALA HIGH COURT IN THE CASE OF V. R.DESAI (SUPRA) THE ASSESSEE DID NOT DEPOSIT THE SALE PROCEEDS OF THE HOUSE ON WHICH CAPITAL GAINS HAS ARISEN WITHIN THE TIME LIMIT PRESCRIBED (DEPOSIT IN THE SPECIFIED ACCOUNT) HENCE IT WAS HELD BY THE HONBLE HIGH COURT THAT ASSESSEE WAS NOT ENTITLED TO THE CLAIM OF DEDUCTION U/S 54F OF THE I.T.ACT IN VIEW OF THE SPECIFIC PROVISIONS OF SECTION 54F(4) OF THE I.T.ACT. 6.1 THE ISSUE THAT ARISES FOR OUR CONSIDERATION WA S DECIDED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT OF THE HONBLE KERALA HIGH COURT IN THE CASE OF ITO V. K.C.GOPALAN (SUPRA) . THE HONBLE HIGH COURT HAD OBSERVED THAT THE ASSESSEE HAS TO CONSTRUCT / PURCHASE A NEW HOUSE PROPERTY FOR HIS RESIDENCE IN ORDER TO GET THE BENEFIT OF SECTION 54 OF THE I.T.ACT. THE RELEVANT FINDING OF THE HONBLE KERALA HIGH COURT READS AS FOLLOW: - ITA NO. 511 / COCH /201 9 . SMT.MERCY GEORGE L/H OF LATE SRI.GEORGE ABRAHAM 4 THE ASSESSEE HAS TO CONSTRUCT OR PURCHASE A HOUSE PROPERTY FOR HIS OWN RESIDENCE IN ORDER TO GET THE BENEFIT OF SECTION 54. THE WORDING OF THE SECTION ITSELF WOULD MAKE IT CLEAR THAT THE LAW DOES NOT INSIST THAT THE SALE CONSIDERATION OBTAINED BY THE ASSESSEE ITSELF SHOULD BE UTILISED FOR THE PURCHASE OF HOUSE PROPERTY. THE MAIN PART OF SECTION 54 PROVIDES THAT THE ASSESSEE HAS TO PURCHASE A HOUSE PROPERTY FOR THE PURPOSE OF HIS OWN RESIDENCE WITHIN A PERIOD OF ONE YEAR BE FORE OR AFTER THE DATE ON WHICH THE TRANSFER OF HIS PROPERTY TOOK PLACE OR HE SHOULD HAVE CONSTRUCTED A HOUSE PROPERTY WITHIN A PERIOD OF TWO YEARS AFTER THE DATE OF TRANSFER. CLAUSES (I) AND (II) OF SECTION 54 WOULD ALSO MAKE IT CLEAR THAT NO PROVISION IS MADE BY THE STATUTE THAT THE ASSESSEE SHOULD UTILISE THE AMOUNT WHICH HE OBTAINED BY WAY OF SALE CONSIDERATION FOR THE PURPOSE OF MEETING THE COST OF THE NEW ASSET. 6. 2 IN VIEW OF THE ABOVE JUDGMENT OF THE HONBLE KERALA HIGH COURT IN THE CASE OF ITO V. K.C.GOPALAN (SUPRA) WHICH IS IDENTICAL TO THE FACTS OF THE INSTANT CASE WE HOLD THAT THE ASSESSEE IS ENTITLED T O THE CLAIM OF DEDUCTION U/S 54 OF THE I.T.ACT. IT IS ORDERED ACCORDINGLY. 7 . IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED . ORD ER PRONOUNCED ON THIS 05 TH DAY OF NOVEMBER 2019 . SD/ - SD/ - ( CHANDRA POOJARI ) ( GEORGE GEORGE K. ) ACCOUNTANT MEMBER JUDICIA L MEMBER COCHIN ; DATED : 05 TH NOVEMBER 2019 . DEV A DAS G * COPY OF THE ORDER FORWARDED TO : BY ORDER (ASSTT. REGISTRAR) ITAT COCHIN 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE PR. CIT KOTTAYAM . 4. THE CIT(A) KOTTAYAM . 5. THE DR ITAT COCHIN 6. GUARD FILE. `