TaxTMI 
TaxTMI 
2017 (9) TMI 847
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.... appeal first seeking to delete the above long term capital gains addition of Rs. 65,50,266/-. We notice at the outset that the CIT(A)'s findings under challenge comprise of a very detailed discussion, assessee's explanation and Assessing Officer's conclusion as follows: "4.1. During the course of appellate proceedings, the appellant filed written submission as under:- 3.0 FMV as on 01.04.1981 at Rs. 7,35,750/- instead of Rs. 25,78,300/-. 3.7 The first effective ground of appeal relates to the rejecting FMV as on 01.04.1981 shown at Rs. 25,78,300/- by the appellant as per registered valuers report dated 30.10.2010 and taking at Rs. 7,35,750/-, It is discussed in para 4.3 to 4.5 of the impugned order. It is observed by AO that in view of the location of the immovable property sold by the appellant vis-a-vis the comparable instance given by the valuer, the FMV was estimated at Rs. 250/- per sq. yard as on 01.04.1981. Accordingly, the cost of acquisition for ½ share of the appellant worked at Rs. 3,67,875/- and indexed cost at Rs. 26,15,591/- instead of Rs. 91,65,957/- which resulted into addition of Rs. 65,50,266/-. 3.2 The appellant begs to....
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....ea abutting to Ashram Road and near Paldi junction as stated by Regd. Valuer. Since, the Ashram Road extends from Kochrab Ashram, Paldi Junction to Vadaj cross roads and as noticed from the certified map annexed by AO, its distance cannot be 2 kms. as stated by AO. (ii) The next contention of AO that having regard to the value Rs. 484.10 p. per square yard of plot bearing P.P. No.840, the value of PUC could be estimated at Rs. 250 per sq. yard should be rejected because it is mere a presumption and surmise. The perusal of the size of the plot relating to P.P. No. 840 as given in valure's report shows that it admeausered about 2418 sq. Mt and sold during the period of ULC Act whereas the PUC was not covered under ULC Act as per the order dated 30.11,1982 of Dy. Collector and Competent Authority, ULC, Abad. Therefore, the PUC would naturally fetch higher value than P.P. No.840. It may be noted as observed by valuer in his clarification dated. 20.05,2014 that even in respect of plots nearby Ashram Road, the FMV was taken at Rs. 1200 per sq. yard (copy enclosed). The appellant submits that this explanation should not be treated as fresh evidence because the regd. Valuer wa....
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....39;s property which was higher as against the sale instance of final plot at Rs. 484.10 per sqr. Yd. Further during the course of assessment proceedings the AO made the necessary inquiries from the Municipal Corporation, registered valuer and from the appellant and it is found that the Plot No.850/1 of the appellant was situated inside 2 Kms. away from the Ashram Road at 40 Ft. wide road while the sale instance property as taken by the valuer was situated on the main road of the Ashram Road on 30.50 Mtrs wide road. So the sale instance property was on a far far better location being situated on much wider road on the main Ashram Road while the property of the appellant was situated firstly on the less wider road and that too on the 2 kms. away from the main Ashram Road. Therefore the cost of acquisition of the appellant's property as on 1.4.1981 ought to have been much less than the sale rate of 484.10 per sqr. Yd. of the final plot No. 840 taken as a sale instance by the valuer. The detailed discussions about the inquiries and the outcome of such inquiries are discussed in the assessment order by the A.O. A copy of the T.P. Scheme No. obtained from the Ahmedabad Municipal Corp....
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....nd not for estimation of the cost of the acquisition. In view of the above discussion, the appellant's contention is found not acceptable. Even the appellant himself is contradicting his own stand of requirement of the reference by the A.O. to the valuation officer u/s.55A by saying that the reference in the instant case also would have been illegal in view of certain judgments quoted in the written submission. By saying this the appellant's thought that whatever rate he has adopted as a cost of acquisition i.e. R5.700/-/per sqr. Yd. as on 1.4.1981 became the final and neither the AO would estimate at his own considering the comparable instances, nor the registered valuer could have determined the fair market value as on 1.4.1981 u/s.55A of the I.T. Act which is totally against the provisions of law and never intended so. Further the appellant has simply contended that the plot in P.P. No.840 was sold during the period of ULC Act whereas the PUC was not covered under ULC Act and therefore the PUC would naturally fetch higher value than the FP. No.840. This contention has been taken by the appellant first time and without any base and working. In the Incometax Act t....
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....rties by way of various diagrams in coloured version and the fact that the sample property plot no.840 came under the Urban Ceiling Law whereas there was no such restriction in the impugned capital asset sold. He takes us to paper book pages 469, 470 to 472 in paper book. The Assessing Officer also appears to have attached relevant sketch of the town planning scheme, Ellis Bridge indicating assessee's capital asset, the above sample property. Mr. Divatia's case is that all this material sufficiently indicates that both the lower authorities have erred in disturbing assessee's valuation report in question. 6. Learned Departmental Representative on the other hand draws strong support from both the lower authorities' action under challenge arriving at the impugned fair market value. He takes us to the relevant annexure attached with the assessment order indicating inter alia the property in question to be situated on road having width of 40ft. only as against the sample property 840 situated on main Ashram Road having width of 30mtrs. His case is that the assessee's registered valuer stated this Ashram Road's width to be 30ft. only. He then once again asks us to stay back on the ab....
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....ld to Rs. 700/- despite the fact that the same location suffers from various depreciating factors as well as its distance from main road seeming to be at least between 500 to 1kmtr. These crucial facts make it clear that the assessee's plot did not enjoy much commercial value since sandwiched between Sabarmati river on the one hand and Ashram Road on the other. There is further no material that the said plot's value in anyway suffered because of Urban Land Ceiling Law or its effect thereupon. We therefore do not find any justification in travelling further to adopt valuation of "Natraj or G. S. Shodhan" situated at much far distance in a different locality & scheme than the above sample plot. The assessee's assertions in this regard based on coloured material and other documents are accordingly rejected. 9. The next question that arises on merits for our apt adjudication is as to whether both the lower authorities have correctly valued assessee's plot @Rs.250/- only than the above sample property sold on 01.10.1981 @Rs.484.10/- per sq.mtr. We rely on our above discussion to observe that both these plots admittedly form part of the same scheme wherein one of them is situated on m....
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....tantive ground in seeking to revive Section 54EC deduction disallowance of Rs. 50lacs. We notice herein as well that the CIT(A)'s finding under challenge duly take note of assessment order as well as assessee's arguments as under: "5.1. In the assessment order, the A.O. observed as under:- 5. Deduction u/s. 54EC 5.1 In the computation of income, the assessee claimed deduction u/s. 54EC of the Act at Rs. 1.00 crore. As per provisions of section 54EC, deduction was restricted to Rs. 50.00 lakhs by inserting a proviso to section 54EC by Finance Act, 2007. 5.2 A bare reading of the above provisions makes it clear that investment in Long Term Specified Assets has been restricted to Rs. 50,00,000/- by inserting of the first proviso to section 54EC. The assessee made investment in such assets at Rs. 1 crore and claimed exemption. Therefore the assessee vide this officer notice datred 23/09/2013 was requested to explain. 5.4 The above submissions of the assessee are considered carefully. It is seen that the assessee claimed that the two investments of Rs. 50 lakhs wach made within six months in each financial year were eligible for deduction u/s....
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....orate and other entities. This section permitted the assessee to make investment not exceeding Rs. 50 lacs in each financial year and it was not connected with the capital asset sold. In other words, the assessee may have sold different capital assets during the previous year but the ceiling of Rs. 50 lacs would not operate qua the capital assets. To illustrate, if the assessee has exhausted that limit by investing Rs. 50 lacs in financial year No. 1 and he again makes investment of Rs. 50 lads in F. Y. No. 2, the further investment in the second year cannot be made by him in respect of the capital assets sold in that F. Y. Thus, in none of the years, the prescribed limit exceed as contemplated by the legislature. It would be taking a two narrow view of the beneficial provisions of section 54EC when it is intended to grant relief to the assessee from taxation of capital gains. Recently, Hon'ble Apex Court in case of Sanjiv Lal ( 365 ITR 389)has observed that a purposive interpretation should be made so as to allow the benefit of exemption and wherever two views are possible, the view favourable to the assessee should be adopted as held in case of Vikrant Tyres Ltd ( 274 ITR 821....
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.... the year under consideration and subsequent investment in another assessment year and as such the proviso does not debar the assessee to claim the deduction in the subsequent year although made within the time limit of 6 months from the date of transfer. In support of the same he has relied upon various decisions. 5.7. In the case of Aspi Ginwala, Shree Ram Engineering & Manufacturing Industries Vs. ACIT, Circle, Baroda in IT appeal No.3226 of 2011 vide order dtd. 30.03.2012 the Hon'ble ITAT Bench-C, Ahmedabad has granted the deduction of Rs. 1 crore in two different financial years made but within six months from the transfer. Relevant portion of the findings are as under:- "The dispute which is to be decided in this case is whether as per the provisions of section 54EC the assessee is entitled for exemption of Rs. 1 crore as six months period for investment in eligible investment involves two financial years. If the answer to this question is 'yes', whether investment made by the assessee in NHAI Bonds on 26-5-2008 beyond six months period is eligible for exemption in view of the fact that no subscription for eligible investment was available to the....
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.... Further in the case of ITO, Wd-2, Margas, Goad, Vs. Ms. Rania Faleiro [2013] 33 taxrnann.com 611 (Panaji - Trib.) Section 54EC of the Income-tax Act,1961 - Capital gains - Not to be charged on investment in certain bonds [Quantum of exemption] - Assessment year 2008-09 - Whether condition for availing of exemption under section 54EC requires that investment can be made within a period of 6 months and if 6 months fall within two different financial years, assessee can make investment in two different financial years provided in a financial year investment made did not exceed Rs. 50 lakhs - Held, yes - Assessee sold a property on 5.2.2008 and computed capital gain at Rs. 1.16 crores - She had invested in Capital Gains Bonds a sum of Rs. 50 lakhs on 31.3.2008 and a sum of Rs. 50 lakhs on 30.6.2008 - In return of income for assessment year 2008-09, she claimed exemption under section 54EC of capital gain amounting to Rs. One crore - Whether assessee was eligible for exemption under section 50EC for Rs.one crore - Held, yes." Further in the case of Coromandel Industries (P) Ltd. Vs. Assistnat Commissioner of Income-tax, Company Circle 1(3), Chennai [2013] 36 tax....
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....BDT Circular No. 3/2008 dated 12.03.2008 as well as by the Finance Minister Speech and the notification No.380/2006 dated 22.12.2006, wherein specific reference was made to paragraph 28.2 of such Explanatory Notes which stated that the Government decided to impose a ceiling on the quantum of investment that could be made in such bonds. Accordingly, the said section has been amended so as to provide for a ceiling on investment by an assesgee in such long-term specified assets. 12. On appeal, the Commissioner of Income-tax (Appeals) confirmed the action of the Assessing Officer. 13. Before us the Authorized Representative of the assessee submitted that the issue is covered in favour of the assessee by the following decisions of the Tribunal:- i) IT AT Bangalore in the case of Shri Vivek Jairazbhoy in ITA No.236/Bang/2012 ii) ITAT Chennai in the case of Smt. Sriram Indubal, reported in 32 taxmann.com 118 in) ITAT Panaji in the case of Ms. Raina Faleiro, 33 taxmann.com iv) ITAT Ahmedabad in the case of Smt. Pritiben Gautambhai Adani, in ITANo.808/Ahd/2012 14. On the other hand, the Departmental Representative supported the ....
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....ntal Representative, was considered by the Bangalore Bench of the Tribunal in the case of Shri Vivek Jairazbhoy (supra) and thereafter it was held that the proviso to section 54EC does not limit the amount of exemption which is available as per provision of section 54EC. We, therefore, find that the lower authorities were not justified in not allowing exemption u/s 54EC to the assessee in respect of investments made in specified capital bonds ofRs. 1 crore which were within the limit of proviso to section 54EC i. e. Rs. 50 lakhs in a financial year and were within the specified period of six months. We, therefore, set aside the orders of the lower authorities and direct the Assessing Officer to allow exemption to the assessee u/s 54EC in respect of both the investments i.e. Rs. 50 lakhs on 02.08.2008 and Rs. 50 lakhs on 30.06.2008. Thus, this ground of appeal of the assessee is allowed. 19. In the result, the appeal of the assessee is allowed. In view of the aforesaid discussion including the decision of jurisdictional ITAT which is binding upon this office on the identical issue, there is no case to make the disallowance of the second investment made in the subsequent yea....