Case Law Details
Nirmala Subramanian Vs CIT (A) (ITAT Mumbai)
The short question in this appeal is whether the assessee is entitled to deduction under Section 54 of the Act or not and what is the date of acquisition of new residential house for the purpose of deduction under Section 54 of the Act. Provision of Section 54 shows that whether any individual or a HUF invest, the capital gain arise on transfer of residential house within a period of 1 year before or two years after the date of transfer of the house property then the amount of capital gain invested in purchase of new house property, the capital gain was not chargeable to tax. Here the fact shows that the residential property was sold on 12th May, 2006 and agreement to purchase the new house property was registered on 16th March, 2005, whereas the possession of the new house property was granted to the assessee on 16th July, 2005. It is also admitted fact that the date of possession was not available before the learned Assessing Officer and therefore, he took the date of agreement to sale as the date of purchase of the property. Therefore, he denied the deduction under Section 54 of the Act. This fact was available before the learned CIT (A), however, he rejected the same stating that this is additional evidence filed by the assessee and same is not in conformity with the Rule 46A of the Income Tax Rules, 1962.
We find that Rule 46A, does not mandate compulsorily by making return application for admission of additional evidence. It is for the learned CIT (A) to record the reason if such additional evidences are admitted. Therefore, according to us, the learned CIT (A) rejected the claim of the assessee on flimsy ground. In view of this, we set aside the whole issue to the file of the learned Assessing Officer with a direction to the assessee to submit the evidence of possession letter of the new property, the learned Assessing Officer may examine the same and decide the issue whether the claim of the assessee is eligible for deduction under Section 54F of the Act or not. The learned Assessing Officer may grant an opportunity of hearing to the assessee. After hearing, the learned Assessing Officer may decide the issue on the merits of the case. Accordingly, the appeal of the assessee is allowed for statistical purposes.
FULL TEXT OF THE ORDER OF ITAT MUMBAI
01. This appeal is filed by the assessee against the appellate order passed by learned Commissioner of Income-tax (Appeals)-26, Mumbai dated 26.06.2018 for A.Y. 2007-08. The assessee has raised following grounds of appeal:-
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