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TMI Blog2018 (8) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... er with a direction to give one more opportunity to the assessee to produce the contractor M/s Manya & Bhuwan Infrastructure (P) Ltd. and the architect M/s Khurshid Ahmed & Associates for examination of the Assessing Officer. The Assessing Officer upon satisfaction may allow the deduction u/s 54F of the I.T. Act as per fact and law. Thus hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes. Chargeability of interest u/s 234B - Held that:- CIT(A) has not adjudicated the issue by passing a speaking order on account of chargeability of interest u/s 234B. Since the deduction u/s 54F has been restored to the file of the Assessing Officer, therefore, I deem it proper to restore this issue also to the file of the Assessing Officer with a direction to levy interest u/s 243B as per law - ITA No.499/Del/2018 - - - Dated:- 30-7-2018 - SHRI R. K. PANDA, ACCOUNTANT MEMBER For The Assessee : Shri Rajesh Jain, CA For The Department : Shri S. L. Anuragi, Sr. DR ORDER PER R. K. PANDA, AM : This appeal filed by the assessee is directed against the order dated 13.10.2017 of CIT(A)- 12, New Delhi relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our considered opinion, in the interest of natural justice, this issue requires thorough investigation at the level of the Assessing Officer. Hence, we remit the ground no. 1 relating to addition ₹ 60,62,443/- made by the AO in regard to the disallowance u/s. 54F of the I.T. Act with the directions to consider the same, after giving adequate opportunity of being heard. 5. Subsequently, the Assessing Officer issued notice to the assessee asking him to furnish the required details. From the various details furnished by the assessee, the Assessing Officer observed that after purchase of land the assessee had paid an amount of ₹ 2,00,000/- by Cheque dated 13.02.2010 to the construction company namely M/s Manya Bhuwan Infrastructure (P) Ltd. and an amount of ₹ 6,57,850/- has been made in cash. The assessee also furnished a Valuation Report dated 23.07.2010 from Shri Khurshid Ahmad Associates, Architect showing the cost of construction of 903 sq.ft. on the said plot at ₹ 8,57,850/-. In order to verify the claim of the assessee, the Assessing Officer issued notices u/s 133(6) to M/s Manya Bhuwan Infrastructure (P) Ltd. and M/s Khurshid Ahmad Associat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - and added the same to the total income of the assessee. 8. In appeal, the ld. CIT(A) upheld the action of the Assessing Officer. The argument of the assessee that he spent more than the entire amount of sale consideration of the original asset before the last date of filing of income tax return for assessment year 2008-09 and that he had submitted contractor bills for construction of house and water bills, substantiating the evidence of incurring of expenditure of ₹ 8,57,850/- was rejected by him. The further contention of the assessee that the law requires construction of the residential house and not the approval from the local authorities was also rejected by him. Rejecting the various explanations given by the assessee and observing that the notices issued by the Assessing Officer u/s 133(6) to the contractor and the architect were returned unserved and construction of the house was not completed, the CIT(A) upheld the action of the Assessing Officer. 9. Aggrieved with such order of the ld. CIT(A), the assessee is in appeal before the Tribunal. 10. Ld. counsel for the assessee referring to the decision of the Tribunal in the case of Bhavna Cuccria vs. ITO repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad of @ 20% as per the provisions of section 112 of the I.T. Act. 14. The ld. DR on the other hand heavily relied on the orders of the Assessing Officer and ld. CIT(A). He submitted that the Assessing Officer had given the reasons for denial of claim of exemption u/s 54F of the I.T. Act. The assessee not only failed to complete the construction of the house before the stipulated date but also failed to produce the contractor who had constructed the house property and the architect who had issued the certificate valuing the cost of construction. Since the house property in the instant case was not habitable, therefore, under the facts and circumstances of the case, the denial of exemption u/s 54F by the Assessing Officer which has been upheld by the ld. CIT(A) is justified. The grounds raised by the assessee, therefore, should be dismissed. 15. I have considered the rival arguments made by both the sides and perused the material available on record. It is an admitted fact that the assessee has sold a property on 01.09.2007 for ₹ 65,00,000/- and claimed exemption u/s 54F on account of long term capital gain of ₹ 60,62,443/- on account of purchase of plot at Noida fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be allowed notwithstanding that the property is not fully complete or that the house is not in habitable condition. However, in the instant case, the assessee could not produce the contractor M/s Manya Bhuwan Infrastructure (P) Ltd. who had constructed the house and the architect who had issued the certificate certifying the cost of construction of 903 sq.ft. on the said plot of ₹ 8,57,850/- for the examination of the Assessing Officer to find out about the completion of the construction. Considering the totality of the facts of the case and in the interest of justice, I deem it proper to restore the issue to the file of the Assessing Officer with a direction to give one more opportunity to the assessee to produce the contractor M/s Manya Bhuwan Infrastructure (P) Ltd. and the architect M/s Khurshid Ahmed Associates for examination of the Assessing Officer. The Assessing Officer upon satisfaction may allow the deduction u/s 54F of the I.T. Act as per fact and law. I hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes. 16. Ground no.3 was not pressed by the assessee for which ld. DR has no objection. Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29. Now, we shall be deciding on merits as to whether after the decision of ITAT, the assessing officer was justified in charging the interest under Section 234B of the Act up to the date of assessment order or up to the date of order passed by the assessing officer in consequence of the order passed by the ITAT by passing an order under Section 254/154 of the Act. In the instant case, the assessing officer has charged interest under Section 234B of the Act up to the date of the order passed by him in consequence of the order of IT AT by passing an order under Section 254/ 154 of the Act. This is certainly against the decision of the Apex Court in the case of Modi Industries Ltd. (supra) as well as Full Bench decision of Bombay High Court in the case of Carona Sahu Co. Ltd. (supra) (approved by the Apex Court) and, hence, the order passed by the assessing officer under Section 254/154 of the Act charging interest under Section 234B of the Act up to the date of the order passed by him in consequence of the order of the ITAT is against the provisions of Law and, hence, the same cannot be upheld and consequently the same has been wrongly been p upheld by the Commissioner (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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