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TMI Blog2015 (10) TMI 2788X X X X Extracts X X X X X X X X Extracts X X X X ..... ni Engineering, Jhotwara, Jaipur and also consider the case law cited by the assessee i.e. ACIT Vs. Om Prakash Goyal [ 2012 (8) TMI 547 - ITAT JAIPUR ]- set aside this issue to the file of Assessing Officer to reconsider all the evidences furnished by the assessee and make spot inquiry for use of the plot, electricity connection and other facilities created by the assessee to decide the nature of building. Assessee s appeal is allowed for statistical purposes only. - SHRI R.P. TOLANI, JM AND SHRI T.R. MEENA, AM For the Assessee : Shri K.L. Moolchandani (Adv) For the Revenue : Shri Rajendra Singh (JCIT) ORDER PER: T.R. MEENA, AM This is an appeal filed by the appellant against the order dated 02/01/2014 passed by the learned CIT (A)-II, Jaipur for A.Y. 2010-11. The effective grounds of appeal raised by the appellant are as under:- 1 On the facts and in the circumstances of the case the ld. CIT(A) has factually and legally erred in dismissing ground NO. 3 regarding interpretation of the provisions of Section 50C of the Act for working out deduction U/s 54F of the Act on the wrong plea that no objection was raised against increasing the sale consideration by A.O. U/s 50C. Such findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 458/-. For claim of deduction U/s 54F, the assessee had also submitted some documents/receipts, according to which she had purchased a plot of land at Narayan Vihar (R), Jaipur for a consideration of ₹ 61,08,175/- through auction by JDA. The ld Assessing Officer gave reasonable opportunity of being heard to apply provisions of Section 50C of the Act for computing the capital gain. There was no response on this query from the assessee. The ld Assessing Officer had taken 40% share of the assessee on the basis of valuation of sale of immovable property U/s 50C at ₹ 76,45,550/-. The assessee had also not submitted any evidence to clarify the difference of acquisition of cost computed by the Assessing Officer and claimed by the assessee. The assessee claimed some cost of improvement on the immovable property, however, no evidence was furnished before the Assessing Officer, therefore, he had taken cost of acquisition at ₹ 3,44,000/-, which was after indexation comes at ₹ 5,10,374/-. The assessee was also given reasonable opportunity of being heard on deduction U/s 54F, which was submitted before him i.e. plot of land at Narayan Vihar (R), Jaipur was purchased at & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of such scheme, the plot was allotted to the appellant for commercial use only. 2. In the allotment letter of JDA, it is clearly mentioned that the plot allotted could be used only for commercial purposes and therefore using the same for residential house is not permissible. 3. The agreement for construction on the commercial plot nowhere mentions construction of residential house. Even the way it is constructed, it cannot be used for residential purposes. It can be used for Godown or office only. 4. The appellant was asked to submit approved plan for construction, appellant could not submit any approval for residential house. The JDA approved plan is for commercial construction only. 5. Even the photograph of the property submitted by the appellant nowhere indicates that it was residential house. Residential bungalow does not look like the structure created on the commercial plot by the appellant. 6. It is common knowledge that commercial plots are much costlier than residential plots and therefore no sensible person will construct residential house on commercial plot. Even otherwise commercial area developed by JDA cannot have residential house since no such permissible will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich was for the purpose of residence. He further found the fault in the agreement entered with the contractor that there is no mention about construction of residential house in that agreement. However, facts are clear from the map and evidence submitted before the ld CIT(A). He has drawn our attention on page No. 14 to 21 of the paper book and tried to demonstrate that assessee had constructed a residential house on the plot in question. The ld CIT(A) has disallowed the assessee s claim by considering the nature of the plot as commercial. It is purely and solely the discretion of the appellant for what purpose, the building was being used. Thus, the purpose of building was solely the decision and wisdom of the appellant which could not be questioned by general feelings, surmises and presumptions as held by the lower authority. He further relied on the decision of Hon ble ITAT, Jaipur Bench A , Jaipur in the case of ACIT Vs. Om Prakash Goyal (2012) 53 SOT 158 in ITA No. 647/JP/2011 order dated 2nd February, 2012 wherein the assessee claimed deduction U/s 54F on investment made in purchase of agricultural land, which was allowed by the ld CIT(A) on the ground that benefit of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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