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TMI Blog2023 (3) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... e noted that the CIT(A) has only directed the AO to examine this supporting documents but he has actually allowed the claim of deduction u/s.54F of the Act on principle. According to us, this is not setting aside of the issue or remanding the matter back to the file of the AO for fresh consideration, simpliciter verification is not barred u/s.251(1)(a) of the Act. Hence, we find no infirmity in the order of CIT(A) and the same is confirmed. The appeal of Revenue is dismissed. Disallowing trading loss on sale of shares - primary onus to prove the sources in respect of trade transaction squarely lies on the assessee - HELD THAT:- We are of the view, let the assessee be given one more chance to produce Demat account and the details of banking transactions to prove that the assessee has actually suffered loss - assessee will also file details by quantifying the loss and will prove with reference to Demat account maintained for this purpose. Appeal of the assessee is allowed for statistical purposes. Addition u//s 69 - assessee could not submit the relevant supporting documents with regard to amount received from Shri K. Kesavan - HELD THAT:- We noted that the assessee could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement dated 10/12/2011 allows 5 years from date of agreement to execute the sale deed. The assessee is not able to produce any sale deed by which the assessee's wife transferred her residential house property in favour of the assessee till this date, though more than 3 years have lapsed. 2.4)The Ld CIT(A) failed to that as per requirement off section 54F the assesse should have purchased a new residential property within the period of 2 years from the date of sale. Since the assessee has not purchased a new residential property within the period of 2 years the assessee has not satisfied the primary condition laid down under section 54F. 2.5)The Ld CIT(A) failed to note that, the date of transfer of the property was on 25/06/2011, On the said date, the assessee is owner of flat at Bangalore acquired in March 2011 and another property which was agreed to be sold through agreement dated 1sr February 2012 only. On the date of transfer of the property, the assessee is owning two residential house properties. 2.6)The Ld CIT(A) failed to note that, one of the conditions for allowing deduction u/s 54F is that the assessee should not own more than one residential house on the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration was paid out of agreement of sale entered with Smt.S.K. Geetha by way of agreement of sale dated 01.02.2012. Rs.50 lakhs was directly credited to his wife s account out of sale proceeds at Plot No.7/10B, Ambattur Industrial Estates, MTH Road, Chennai 58, Rs.26 lakhs was paid form IOB account No.1990, Rs.1,55,50,310/- was paid for the purchase of property measuring half share of building 3200 sq.ft. and the undivided share of the land measuring 7835 sq.ft. from M/s. Ambattur Clothing Ltd., at No.3/86-E, Ambattur Industrial Estate by wife. The separate agreement of sale was entered into between the assessee and his wife for transfer of the properties. The assessee further explained that he has purchased property bearing No.39/41, Gangai Street, Kalashetra Colony, Besant Nagar, Chennai from his wife Smt. S.K. Geetha for a total consideration of Rs.3.45 crores and taken possession of the said property on 10.12.2011. 3.2 The AO examined the claim of assessee in regard to claim of exemption u/s.54F of the Act and held that the assessee is not entitled for the claim of exemption due to the following reasons:- (a) The AO denied the claim of exemption on the reason that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of signing of agreement. Now, coming to the AO's observation that the appellant had two houses, the appellant has categorically denied the same by describing the complete set of facts which the AO has not considered during the assessment proceedings. The appellant has further objected that natural justice was not rendered by the AO before denying the appellant's claim of deduction u/s 54F. 4.3.4. After considering the appellant's elaborate submission, I am of the considered opinion that the appellant's claim of deduction u/s 54F is prima facie acceptable. However, since the AO has not examined the relevant particulars narrated by the appellant in his submission mentioned above under para 4.2, the AO is directed to examine the same with supporting documents allow the deduction u/s 54F, if the appellant's submission is factually correct. Aggrieved, now Revenue came in appeal before the Tribunal. 5. Before us, the ld. Senior DR Shri P. Sajit Kumar argued that the property purchased by assessee for a consideration of Rs.3.45 crores from his wife was never registered as sale deed and even after expiry of more than three years the property was in the name o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake the double benefit of evasion of state stamp duty on purchase of flat as well as avail the tax benefit under the Income Tax Act. Are to be considered as legally accepted norm and cannot be considered as deemed investment in a new property, the clause 3 of the agreement mentions the 24 month time lines by which the flat would be handed over. This 24 month timeline again clearly attracts another restrictive clause (iii) of clause (a) of the proviso to section 54F which prohibits an assessee's availing the tax benefit u/s 54F if any construction of another residential property is carried out within three years from the date of transfer of the new residential unit on which section 54F benefit has been availed. Either way, the assessee is not entitled to the claim of benefit us 54F as, it has violated the restrictive clauses (ii) (ii) of clause (a) of the proviso to section 54F. CIT(A) ought to have applied the consequential law while accepting such arguments of the assessee while giving a relief, especially when an assessee is availing tax benefit relief since they are to be provided only to those who are truly eligible and ready to meet the additional conditions to avail suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the property situated at Padikuppam 31.03.2015 Assessment order passed in the case of Smt. Geetha (Appellant s wife) for the AY 2012-13 27.11.2017 CIT(Appeals) order passed in the case of Smt. Geetha (Appellant s wife) for the AY 2012-13 06.09.2019 ITAT order passed in the case of Smt. S.K. Geetha (Appellant s wife) for the AY 2012-13 The ld.counsel stated that the assessee has already occupied by taking possession of the property purchased i.e., Kalashetra Colony, Chennai property from his wife at a sale consideration of Rs.3.45 crores as against sale of land on 25.06.2011 at Ambattur for a total consideration of Rs.4 crores and invested the long term capital gain of Rs.2,91,39,659/- and claimed exemption. Admittedly, it is a fact that the above property purchased by assessee on 22.12.2011 at Padikuppam is land only and not a house and hence, the same is not hit by the provisions of section 54F(1) proviso (a)(ii) of the Act. 6.1 Secondly, the assessee entered into sale agreement with his wife towards purchase of this residential property situate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is daughter and suffered loss of Rs.19.45 lakhs and claimed the same in the return of income. The AO and CIT(A) both disallowed the claim only on the reason that the assessee could not furnish the details. The AO observed in the following lines The A.R. was asked about the transactions and proof for such loss with DMAT account of the assessee. The A.R. has not produced any evidences in support of the trading activities. The primary onus to prove the sources in respect of trade transaction squarely lies on the assessee. In spite of adequate opportunities were provided to the assessee, it is evident that the assessee has failed to discharge his primary onus of proving genuineness and source of the transaction. The CIT(A) confirmed the action of the AO by observing as under:- But the point for consideration is not the source of transaction alone but the quantification of the loss from the activity of trading in futures and options which requires to be proved with reference to demat account maintained for this purpose. In spite of adequate opportunities given by the CIT(A), the appellant could not submit any evidences in support of purported trading activity. 7.2 Now before u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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