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TMI Blog2022 (9) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. As 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d late causing delay of 250 days. Assessee has submitted an application of condonation of delay in the form of affidavit of accountant as well as of assessee. According to the affidavit of accountant, it was stated that the accountant received the order of the learned CIT(A) on 23rd July, 2018, however, the appellate order got mixed up with other documents relating to finalization of accounts and further, the accountant was not keeping good health, due to this the appeal was not filed in time. Subsequently, when the Income Tax Officer asked about payment of the taxes in the third week of May, 2019, the assessee came to know that the appeal has not been filed. The order of the learned CIT (A) was served on 23rd July, 2018. However, the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce July, 2018, which resulted into his unfortunate death on 11th February, 2019. The assessee has also stated on an affidavit that due to death of her husband she was mentally devastated to look into any of her affairs. As soon as call was received from the learned AO about non-payment of tax, assessee got an alert and filed the appeal. On the above facts and circumstances, we find that delay caused in filing of the appeal is because of sufficient reasons. Even otherwise, if the technicalities and merits are pitted with each other the issue deserves to be looked on merit. Accordingly, we condone the impugned delay and admit the appeal of the assessee. 06. Coming to the facts of the case, we find that assessee is an old lady (date of bir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee has purchased a new residential house property at Flat no.B-1704, Neel Siddhi Towers, Plot no.195, Sector 12, Vashi, Navi Mumbai, by registering an agreement to sale on 16th March, 2005. The learned Assessing Officer stated that she has purchased a new house on 16th March, 2005 whereas sale of old residential house property was on 25 May 2006. The assessee is not entitled to deduction under Section 54 of the Act. The learned Assessing Officer further noted that assessee is also owner of another flat having 50% ownership at Navi Mumbai and therefore, he denied the deduction under Section 54 of the Act and computed the total income of the assessee at ₹18,36,910/- by an order dated 9th March, 2015 under Section 143(3) read with sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of section 54 of the Act purchase date of the property is required to be seen. He submitted that an agreement to sale was made by the assessee for property under construction. However, the possession was given later on and share certificate was also issued on 27th March, 2007. He further stated that as the possession of the property was granted later on, that date should be considered for the purpose of date of purchase of the property. He further referred to page no.8 of the agreement to show that the payment was to be made in installments during the construction period. He therefore, submitted that assessee is entitled to deduction under Section 54 of the Act. He submitted that the learned CIT (A) was also incorrect in sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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