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TMI Blog2014 (4) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... CM No. 1019 CII of 2014 3. Allowed as prayed for. CM stands disposed of. ITA No.28 of 2014 4. This appeal has been preferred by the assessee under section 260A of the Income Tax Act, 1961 (in short, the Act ) against the order dated 19.2.2013, Annenxure P.3 passed by the Income Tax Appellate Tribunal, Chandigarh Bench B, Chandigarh in ITANo.944/CHD/2010 for the assessment year 2002-03, proposing to raise following substantial questions of law:- (i) Whether the act on part of the Assessing Officer to initiate the assessment proceedings under section 148 read with section 147 of the Act is justified? (ii) Whether the act on part of the Assessing Officer in rejecting the appellants claim under section 54F of the income Tax Act is justified? (iii) Whether the act on part of the Assessing Officer to make the assessment under section 144 of the Act, 1961 in exceeding their jurisdiction is legally sustainable in the eyes of law? (iv) Whether in fact and circumstances of the case, the action of the authorities below, the impugned orders Annexures P.l to P.3 are legally sustainable in the eyes of law? 5. A few facts relevant for the decision of the controversy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the date on which the transfer took place purchased, or has within a period of three years after that date constructed, a residential house (hereafter in this section referred to as the new asset), the capital gain shall be dealt with in accordance with the following provisions of this section, that is to say :- (a) if the cost of the new asset is not less than the net consideration in respect of the original asset, the whole of such capital gain shall not be charged under section 45 ; (b) if the cost of the new asset is less than the net consideration in respect of the original asset, so much of the capital gain as bears to the whole of the capital gain the same proportion as the cost of the new asset bears to the net consideration, shall not be charged under section 45: Provided that nothing contained in this sub-section shall apply where- (a) the assessee, - (i) owns more than one residential house, other than the new asset, on the date of transfer of the original asset; or (ii) purchases any residential house, other than the new asset, within a period of one year after the date of transfer of the original asset; or (iii) constructs any residential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other evidence has further been filed in this regard by the appellant at any stage. The learned counsel is mainly relying upon the report of the Registered Valuer. However, as brought out in the assessment order itself the registered valuer had admitted before the AO that he had not seen any bills or vouchers and that he had made the report without confirming the year in which the constructon was carried out. In view of the above statement of Shri Raheja, the registered Valuer, coupled with the report of the Inspector who physically inspected the site, the AO cannot be said to be unjustified in concluding that neither new construction nor the alteration/addition to the said property was made by the appellant during the relevant period. In the assessment order the AO has also discussed that even the mother of the appellant and their old servant Shri Gopal working with the appellant for more than 10 years also informed that no new house was constructed. This would further go to strengthen the findings of the AO in this regard. Further though it is contended by the learned counsel that if the AO was not satisfied with the report of the registered Valuer the matter should have been re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial were demanded, but were not made available by the assessee. It was admitted by the Registered Valuer before the AO, that the valuation report was prepared by him, on the basis of statement made by the appellant, without confirming the year in which the construction was made, as required vouchers were not available. Learned AR referred to the valuation report, as an evidence, to support his contention, in the face of non production of any evidence, whatsoever in the course of assessment proceedings, proceedings before CIT(Appeals) and even before this Bench. The contention raised by the learned AR that Inspector's report is bias, is merely an assertion without corroborating by independent evidence, hence the same does not carry any evidentiary value. The assessee appellant has failed to comply with the statutory conditions of section 54F of the Act, as the assessee failed to adduce even prima facie evidence, at any stage of proceedings, establishing the construction of residential house and eligibility of claim made under section 54F of the Act. It is admitted fact that no bills and vouchers or any evidence was produced by the appellant to justify his claim. Learned DR place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng residential house, the assessee is not entitled to exemption under section 54F of the Act. The relevant part of the decision is reproduced hereunder: 'Capital Gains - Long term capital gain-Computation-Deductions-Investment in expansion of existing residential house-Not entitled to deduction under Section 54-F-Income Tax Act, 1961-S.54F. Held, that since the assessee had only made addition to the plinth area, which was in the form of modification of an existing house, she was not entitled to deduction claimed under section 54F of the Income Tax Act, 1961. 16(iv) We have also considered the decisions of the Hon'ble Supreme Court, relied upon by learned AR as referred to above and found that the same are factually different and distinguishable and, hence not applicable to the typical fact situation of the present case. 16(v) In view of the above legal and factual discussions, and having regard to the express provisions of section 54F of the Act, we are of the considered opinion that the findings of learned CIT(Appeals) do not suffer from any infirmity and, hence the same are upheld. Accordingly, Ground No.3 is dismissed. 12. A perusal of the findings recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X
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