TaxTMI 
TaxTMI 
2018 (10) TMI 177
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....40/- U/s 54 of the I.T. Act on account of capital gain." 2. During the course of hearing, the assessee has sought permission to raise following additional ground of appeal, which is as under: "2. Rs. 30,05,000/- The ld. CIT(A) erred in law as well as on the facts of the case in allowing the deduction U/s 54 in part only i.e. upto Rs. 1,47,64,740/- only as against Rs. 1,77,69,740/- (including exemption of Rs. 30,05,000/- on account of construction cost incurred up to 30/09/2012) claimed by the assessee. The deduction so denied being contrary to the provisions of law and facts on the record and hence, the exemption as claimed kindly be allowed in full." 3. It was submitted that it is purely a legal ground, which do not require any fresh investigation of facts inasmuch as the same are already available on record and in support of this, reliance was placed on the decision of the Hon'ble Supreme Court in the case of National Thermal Power Corporation Ltd. 229 ITR 383 (SC). After hearing both the sides, the said additional ground being a pure legal ground is hereby admitted. 4. Firstly, we shall take up the appeal of the Revenue and the additional ground raised by t....
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....th the original return of income as well as the purchase deed and the map of the property which nowhere mentioned a residential house but a plot of land with stone covered area. Referring to the revised computation of income and the revised claim made during the course of assessment proceedings, a show cause notice was issued to the assessee. In response to the notice, the assessee submitted that it has purchased a new residential house situated at C-113, Ramgali No. 5, Raja Park, Jaipur on 07/6/2012 for Rs. 1.40 crores. Referring to the sale deed, it was submitted by the assessee that what has been purchased is a "Nirmit Suda" i.e, already constructed building alongwith water and electric connection with roof. In support of this, photographs of the building in which three rooms are constructed alongwith toilet, bath was submitted. Further, a copy of the electricity bill was submitted, which was in the name of seller which shows the status of the consumer as residential and that of the electricity meter as domestic connection. However, the submissions so made by the assessee was not found acceptable to the Assessing Officer. As per the Assessing Officer, the same plot of land is cl....
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....f the new property and what has been purchased was a plot of land and not a residential house. 8. Per contra, the ld AR of the assessee has relied on the submissions made before the ld. CIT(A) as well as supported the findings so made by him except in respect of Rs. 30,05,000 which has been challenged by way of the additional ground of appeal. It was submitted that the ld AO clearly proceeded on a misconception of facts and law by saying that the new property purchased was nothing but a mere plot and not a new residential house. It was submitted that the fact that the new property was a residential house is clearly mentioned in the registered sale deed wherein it has been electricity fittings and connections were available as evident from the electricity bill in the name of the seller. It was further submitted that even the photographs clearly show construction of two rooms, toilet, bath and kitchen and thus, it was a complete house fit for human habitation. In support, reliance was placed on the decision of the Coordinate Bench in case of Prem Prakash Bhutani vs ACIT 110 TTJ 440 (Del). Further, reference was drawn to the decision of the Coordinate Bench in case of Seema Sing....
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....entioned that the original owner of the Plot No. 113, Raja Park, Jaipur himself had constructed house on the plot and started living in that house. Further, at page 6 of the sale deed also, it has clearly been mentioned that what was being sold was Plot No. 113 along with the house constructed thereon and water and electricity fitting with connection. The photograph of the property purchased by the appellant was also attached along with the sale deed. After going through the sale deed and photograph attached with sale deed, I am of the considered view that the property purchased by the appellant was a residential house for which deduction u/s 54 is admissible to the appellant." 11. In our view, the findings of the ld CIT(A) are based on right appreciation of the conveyance deed duly corroborated by the pictures of the constructed rooms as well as domestic electric connection taken in the name of the seller. During the course of hearing, nothing has been brought to our notice to controvert the said findings of the ld CIT(A). Hence, we hereby confirm the said findings of the ld CIT(A) that the property so purchased by the appellant was a residential house eligible for deduction un....
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....ing that the disallowance made by the Assessing Officer is in accordance with the provisions of Section 73 of the Act. 14. Now, the assessee is in appeal before us. During the course of hearing, the ld AR took us through the definition of speculative transactions as defined in Section 43(5)(d) as well as 43(5)(e) of the Act. The ld AR also took us through the definition of derivatives as defined in Section 2(ac) of the Securities Contract (Regulation) Act and submitted that the word 'derivative' is a term of wide import which includes the share derivatives as well as commodity derivatives. The ld AR has further relied on the written submissions which are reproduced as under: "2.1 It is submitted that the fact are not denied that the assessee, this year, has transacted in Derivatives (shares and commodities both). By the introduction of sec. 43(5) by the Finance Act 2005 with effect from 01.04.2006, any loss or profit arising from the derivative transaction ( i.e. even without taking delivery), is permissible as non-speculative in as much as it provides that the transactions of Futures and Options (F&O) derivatives trading are covered by clause (d) of section 43(5) and s....
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....n difference of the share derivative for the reason that the legislator wanted that the loss arising from the transactions entered in the commodity derivatives to be treated as nonspeculative, if CTT (Commodity Transaction Tax) has been paid/suffered on such transaction. Therefore, it was provided that an eligible transaction w.r.t. trading in commodity derivatives, will not be a speculative transaction if it is CTT paid and carried out through a recognized exchange. Thus, it is evident that the insertion of clause (e) was only for a limited purpose, as stated above and therefore, it cannot be contended that the derivatives as contemplated by sec 43(5)(d) does include shares only but does not include commodity. Therefore, the AO's allegation that clause (e) was made effective from A.Y. 2014-15 is not relevant in as much as the assessee had made the claim u/s 43(5)(d) only which fully covers both type of derivatives. Kindly refer communication explaining speculative transactions in respect of commodity derivatives (DPB 55) 4.2 It is pertinent to note that pursuant to the insertion of clause (e) in sec 43(5), no change was made in the definition of derivatives given in sec 2....
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....ion is covered by clause (d) of section 43(5) given that clause (e) which talks about trading in commodity derivative an an eligible transaction was brought on the statue books by the Finance Act 2013 w.e.f 1.4.2014 and is thus not applicable for the impugned assessment year. In the result, ground of assessee's appeal is dismissed. In the result, we upheld the order of the ld CIT(A) and both the cross appeals are dismissed. Order pronounced in the open Court on 01/06/2018. ============= Document 1 stated that "निरà¥à¤®à¤¿à¤¤à¤¶à¥à¤¦à¤¾ तामीरात लगे समसà¥à¤¤ सामान, मय पानी - बिजली फिटिंग मय कनेकà¥à¤¶à¤¨ सहित के जमा पà¥à¤°à¤¤à¥à¤¯à¥‡à¤• पà¥à¤°à¤•à¤¾à¤° की राशियों सहित के नीचे की जमà....