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TMI Blog2024 (10) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be construed as a relevant material for drawing adverse inference against the assessee. Further, the information available in the Government website about any person or any person s possession could have to be construed as an information available in public domain and cannot be construed as a fresh tangible material that had come into the possession of the ld AO warranting reopening of assessment. Hence, the reopening of assessment fails on this count. This tribunal in [ 2021 (1) TMI 973 - ITAT DELHI] for AY 2013-14 dismissed the plea of the revenue and held that different floors of a property cannot be construed as a independent residential unit and instead had to be construed only as a single residential unit and accordingly deleted the action of the ld. CWT(A) levying wealth tax on the same. Hence, the issue has already been decided on merits i.e. basement and second floor owned by the assessee cannot be construed as two separate residential properties as already been decided by the Tribunal in assessee s own case in Wealth Tax proceedings stated supra. Hence it could be safely concluded that on the date of transfer of original asset, the assessee was having only one resi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 242/17-18 dated 18.03.2019 against the order of assessment passed u/s 147/ 143(3) of the Income-tax Act, 1961 (hereinafter referred to as the Act ) dated 29.12.2017 by the Assessing Officer, ACIT, Central Circle-06, New Delhi (hereinafter referred to as ld. AO ). 2. As these are cross appeals therefore, both appeals are taken up together and hence disposed of by this common order for the sake of convenience. 3. The assessee raised the following grounds of appeal before us:- 1. That on facts and in law notice u/s 148 dated 30th March 2017 issued for reopening and reassessing total income determined in order u/s 153A dated 27th March 2015 is bad in law and void ab initio. 2. That on facts and in law the CIT(A) has erred in not appreciating that notice u/s 148 dated 30th March 2017 was issued without valid sanction u/s 151 of the Act. 3. That on facts and in law the CIT(A) has erred in upholding assumption of jurisdiction u/s 147 of the Income-tax Act, 1961 by the AO 3.1 That on facts and in law the CIT(A) has erred in not appreciating that the prerequisites of assumption of valid jurisdiction in term of first proviso and third proviso to section 147 are not met rendering issue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act on account of interest on loan if any claimed by the assessee. 5. The appellant craves leave to add, amend any/all the grounds of appeal before or during the course of hearing of the appeal. 5. We have heard the rival submissions and perused the material available on record. The return of income for assessment year 2011-12 was filed by the assessee on 31.12.2011 declaring total income of ₹70,87,301/-. In the said return of income, the claimed deduction u/s 54F of the Act to the tune of ₹90 crores on the account of reinvestment made in another residential house property. The assessee during the year sold shares of FIITJEE Ltd for ₹90 crores and reinvested in new residential house property within the stipulated time and claimed deduction u/s 54F of the Act. Accordingly, long-term capital gain was reported Rs. Nil by the assessee. 6. A search and seizure action was carried out u/s 132 of the Act on FIITJEE Group of cases on 17.12.2012. The assessee was also covered in the said search. Accordingly notice u/s 153A of the Act stood issued to the assessee on 13.08.2013. An order was passed by the ld AO u/s 153A of the Act on 27.03.2015, wherein the claim of deduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... har, New Delhi-57 on the date of transfer of original asset. It is further noted that as per municipal records available on the SDMC web-sites Ground Floor and First floors of D-6/5, Vasant Vihar are owned by Sh. Dinesh Goel and Smt. Monila Goel respectively. Thus, it is evident that different floor of the property are separate residential properties. Consequently, it is evident that the assessee owned two residential properties on the date of transfer of original asset. Further, the assessee has utilized the amount towards purchase of residential house bearing no. E-27, Vasant Vihar, New Delhi and claimed exemption of capital gain u/s 54F. Thus, as per relevant provisions of the Income Tax Act, 1961, the assessee is not eligible to claim deduction u/s 54F on the Income Tax Act, 1961. Therefore, the undersigned has reason to believe that an amount of Rs. 90,00,00,000/- has escaped assessment within the meaning of section 147 of the Act, for the reason of failure on part of the assessee to fully and truly disclose her income for the AY 2011-12. (Rajeev Ranjan) Asstt. Commissioner of Income Tax Central Circle-06, New Delhi 8. The assessee filed elaborate objections to the said reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation:- a. D-6/5, Basement, Vasant Vihar, New Delhi was purchased by Mr. K. K. Goel HUF along with assessee vide registered sale deed dated 02.07.2001. In this, the assessee was having 50% share in the capacity of co-owner. b. D-6/5, Second Floor, Vasant Vihar, New Delhi was purchased by Ms Monila Goel (assessee s daughter in law) and assessee vide registered sale dated 28.01.2008. In this, the assessee was having 50% of share in the capacity of co-owner. c. D-6/5, Ground Floor, Vasant Vihar was purchased by Ms. Monila Goel (daughter in law) along with Mr. DK Goel (assessee s son) vide registered sale deed 02.07.2001. Both parties are having equal share in the said property. d D-6/5, First Floor, Vasant Vihar, New Delhi was purchased by Ms Monila Goel. Physical possession of the said property was taken over on 02.09.2014, but not registered as 100% payment is made to the seller only in financial year 2013-14. 10. We find that the lower authorities had treated the basement of the building to be a separate residential house to deny the claim of deduction u/s 54F of the Act to the assessee. First of all, the entire residential property comprising of basement, ground floor, first floor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely concluded that the basement of D-6/5, Vasant Vihar, New Delhi was not used for residential purposes. In any event, the basement area cannot be by any stretch of imagination be considered as an independent property in the facts and circumstances of the instant case as it is common to all the residents staying in ground floor, first floor and second floor. It is not the case of the revenue that basement area had been allowed by the assessee to be used by other family members on rental basis. Neither any rent was received/ assessed in the hands of the assessee either on deemed rent on fair market value under the head income from house property . Hence, the basement area cannot be considered as a separate residential property. In view of this decision, it could be safely concluded that the assessee was owning only one house property on the date of transfer of shares of FIITJEE Ltd. Hence, there was no prohibition for the assessee to claim deduction u/s 54F of the Act for re-investment made in another residential house property. 11. There is absolutely no requirement in the law that the very same sale proceeds of shares of FIITJEE Limited should be utilised for reinvestment in anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should bring on record the failure on the part of the assessee to make and full and true disclosure of all material facts relevant for the purpose of assessment. As stated earlier, all the materials were indeed furnished by the assessee in the original search assessment proceedings itself, both before the ld AO as well as before the ld CIT(A). Hence, there cannot be any failure at all on the part of the assessee to furnish the requisite details. Accordingly, the proviso to section 147 of the Act is not satisfied at all in the facts and circumstances of the instant case. Hence, the ld AO could not have validly assumed jurisdiction u/s 147 of the Act in the facts and circumstances of the instant case. The only information in any case that is available or which is being relied upon by the ld AO for reopening the assessment is the information available on SDMC website. First of all, any information provided in any website cannot be construed as a relevant material for drawing adverse inference against the assessee. Further, the information available in the Government website about any person or any person s possession could have to be construed as an information available in public dom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal asset, the assessee was having only one residential house property. 15. The law is very well settled that merely because a residential home consisting of several independent residential units, it will not have an impact on claim of deduction u/s 54F of the Act. Reliance in this regard is placed on the decision of the Hon ble Jurisdictional High Court in the case of CIT V. Gita Duggal reported in 357 ITR 153 (Del). Relevant portion of the said order is reproduced herein below:- 9. There could also be another angle. Section 54/54F uses the expression a residential house . The expression used is not a residential unit . This is a new concept introduced by the assessing officer into the section. Section 54/54F requires the assessee to acquire a residential house and so long as the assessee acquires a building, which may be constructed, for the sake of convenience, in such a manner as to consist of several units which can, if the need arises, be conveniently and independently used as an independent residence, the requirement of the Section should be taken to have been satisfied. There is nothing in these sections which require the residential house to be constructed in a particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon hereinabove, we have no hesitation to quash the reassessment proceedings on the ground that the assumption of jurisdiction u/s 147 of the Act is not sustainable in the eyes of law by the ld AO in the facts and circumstances of the instant case. Further, even on merits, the assessee would be entitled for deduction u/s 54F of the Act of ₹90 crores. Grounds raised by the assessee are allowed. 18. In the revenue s appeal, the denial of deduction u/s 54F of the Act is only for the reason that the assessee had not utilized the sale proceeds of shares of FIITJEE Ltd in its entirety for making re-investment in residential property. This has already been addressed by us that money has no colour and provisions of Section 54F of the Act even permits the assessee to make investment in new house property prior to the date of transfer of original asset. Main grievance of the revenue is that the assessee had used part of the sale proceeds of shares of FIITJEE Limited for making donations to some trust. Accordingly, the AO had concluded that the transaction between FIITJEE and Alert Buildtech is not genuine and that were also made the basis for denial of deduction u/s 54F of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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