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TMI Blog2016 (6) TMI 1075X X X X Extracts X X X X X X X X Extracts X X X X ..... ghtly held that the assessee is entitled to the exemption under section 54 of ₹ 25,63,138. Hence, the ld. CIT(A) gave the partial relief on this issue on the right footing. Therefore, we do not find any infirmity in the well reasoned order passed by the Ld. CIT(A) on the restriction of addition in dispute, hence, we uphold the finding of the ld. CIT(A) on this issue. - Decided against assessee Addition u/s. 40(a)(ia) - failure to deduct tax at source from professional fees paid - Held that:- CIT(A) has deleted the addition made by the AO u/s. 40(a)(ia) of the Act on the ground that assesse has deducted tax in all cases where the fees for professional services exceeded ₹ 20,000/-. Therefore, we do not find any infirmity in the well reasoned order passed by the Ld. CIT(A) on the addition in dispute and hence, we uphold the finding of the ld. CIT(A) on this issue - Decided against revenue - ITA No. 1449/Del/2012, ITA No. 1697/Del/2012 - - - Dated:- 3-6-2016 - SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER For The Assessee : None For The Department : Shri Amit Jain, Sr. DR ORDER PER H.S. SIDHU, J.M. These are the cros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 4 DD NO. 973306 21.04.2006 1000007- Purchase of ownership 5 DDNO. 489411 21.06.2006 260165/- July 2006 Installment 6 DD NO. 007881 28.12.2006 260165/- Jan 2007 Installment 7 DDNO. 154069 18.05.2007 34085G/- Miscellaneous Charges for registration 8 DDNO. 154755 29.06.2007 260165/- June 2007 Installment 9 DD NO. 569097 01.01.2008 2601 65/- Jan 2008 Insallment 10 DD NO. 455955 17.06.2008 260 165/- June 2008 Installment 11 Stamp Papers 612300/- Charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed by ITR-V on 25.9.2008. The return was processed u/s. 143(1) of the Income Tax Act, 1961 (hereinafter referred the Act) on the same income. On selection of case for scrutiny, notice u/s. 143(2) of the Act was issued on 14.9.2009. Subsequently, notice u/s. 142(1) of the Act was also issued. In compliance thereto, the Authorised Representatives of the Assessee appeared before the AO from time to time and furnished written submissions and required details. Books of accounts and bills/vouchers etc. were also produced and put to test. Thereafter, the assessed the income of the assessee at ₹ 1,49,51,300/- and made various additions vide his order dated 14.12.2010 passed u/s. 143(3) of the Act. 5. Against the aforesaid assessment order, the Assessee preferred appeal before the Ld. CIT(A), who vide his impugned order dated 1.12.2011 has partly allowed the appeal of the Assessee. 6. Against the order of the Ld. CIT(A), both Assessee as well as Revenue are in Cross Appeals before us. 6.1 In this case, Notice of hearing to the assessee was sent by the Registered AD post, in spite of the same, assessee, nor his authorized representative appeared to prosecute the matter in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng term capital gains recomputed at ₹ 1,30,80,481/-. 7.3. We find that Ld. First Appellate Authority has elaborately discussed the issue in dispute by considering the submissions of the Ld. Counsel of the assessee and adjudicated the same vide para no. 3 to 4.2 at pages 3 to 7 of his impugned order. For the sake of convenience, we are reproducing the relevant portion of the impugned order i.e. para no. 3 to 4.2 as under:- (3). During the appellate proceedings, the counsels for the appellant filed written submissions, wherein it was explained that the first list submitted of TDS on professional fees had not been correctly compiled. It was submitted that the discrepancy of ₹ 81,200/- had arisen on account of the following entries:- S.No. Old List Correct list TDS Difference 1 Bela Mathur Integral Design 2,50,000 2,55,000 26,675 5,000 2 Jag Mohan 5,000 15,000 1,040 10,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... electricity connection obtained in May, 2010 with first bill received for the month of June, 2010. (4.1) The above documents are considered to be adequate evidence of completion of construction of the house within the period of two years from the date of sale, which works out to March, 2010. However, where the purchase of the plot is concerned, the appellant has relied on the Possession Certificate issued by GNIDA on 21.5.2007, which is admittedly within the period of one year before the date of sale of the capital asset (9.3.2008), but on verification, the appellant submitted the following dates of payments for purchase of the residential plot as under:- S.no. DD/Ch. No. Date Amount Re marks 1 DO NO. 264708 31.03.2006 1900000/- Anuradha Singh (Purchase of ownership) 2 DD NO. 488245 28.03.2006 136000/- Bank Transfer Charges to G Noida 3 DD NO. 488247 28.03.2006 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied on the judgement of the Gujarat High Court in the case of Smt. Shantaben P. Gandhi vs. CIT [1981] 129 ITR 218, wherein it was held that the exemption under section 54 is not available where the new construction is made before the transfer of the existing house, The appellant on the other hand, has relied on the judgement of the Allahabad High Court in the case of CIT vs. H.K. Kapoor [1998] 150 CTR 128, wherein it was held that exemption on capita' gains could not be refused simply on the ground that the construction had begun before the sale of the old house. Reliance was also placed on the Karnataka High Court order in the case of CIT vs. J.R. Subramanya Bhat [1987] 165 ITR 561, wherein the court held that to get the benefit of section 54,(The assessee must have constructed the new house witter the prescribed period from the date of sale of the old house, but the date o commencement of construction was not material. , (4.2) I have also taken note of the judgement of the Jurisdictional High Court in the case of CIT vs. Smt. Brinda Kumari [2001] 114 Taxman 266, in which it was held that in the case of allotment of flats under the self financing scheme of the Delhi Developm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansferred should be a residential building, and the asset invested it should also be a residential building, and the investment should be made within the time specified therein. The time specified in this case, within one year before and two years after, is the period between 9.3.2007 and 9.3.2010. The investment which is eligible for deduction would therefore, be restricted to ₹ 17,50,674/- on account of plot, and ₹ 8,12,464/- on account of construction. After careful consideration of the letter and spirit of section 54, it was rightly held that the assessee is entitled to the exemption under section 54 of ₹ 25,63,138. Hence, the ld. CIT(A) gave the partial relief on this issue on the right footing. Therefore, we do not find any infirmity in the well reasoned order passed by the Ld. CIT(A) on the restriction of addition in dispute, hence, we uphold the finding of the ld. CIT(A) on this issue. As a result, this ground raised by the Revenue as well as Assessee stand dismissed. 8. Apropos ground no. 2 raised in Revenue relating to deletion of addition of ₹ 1,06,200/- made by the AO u/s. 40(a)(ia) of the Act. 8.1 On this issue, the Assessing Officer obser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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