Section 54 (of Income Tax Act, 1961) nowhere restricts the claim of the assessee that he should have sold only one property and claimed exemption u/s.54 (of Income Tax Act, 1961) for one property.

This appeal in ITA No.5840/Mum/2018 for A.Y.2011-12 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-34, Mumbai in appeal No.CIT(A)-34/ITO-23(3)(2)/IT-404/2016-17 dated 19/07/2018 (ld. CIT(A) in short) against the order of assessment passed u/s.143(3) (of Income Tax Act, 1961) r.w.s. 147 (of Income Tax Act, 1961) (hereinafter referred to as Act) dated 30/12/2016 by the ld. Asst. Commissioner of Income Tax-23(3), Mumbai (hereinafter referred to as ld. AO).

2. Revenue has raised the following grounds:-

1."Whether on the facts and in the circumstances of the case and in law, the Id.CIT(A) has erred in accepting and allowing the claim u/s 54 (of Income Tax Act, 1961) at the appellate stage under Rule 46A (of Income Tax Rules, 1962), even when the assessee had made no claim u/s 54 (of Income Tax Act, 1961) in the ITR ad computation on income filed for the relevant Assessment Year ?"

2."Whether on the facts and in the circumstances of the case and in law, the ld.CIT(A) has erred in accepting the claim u/s 54 (of Income Tax Act, 1961) on sale of two house properties even when the section clearly mentions the sale consideration of "a house property" can be claimed under LTCG exemption if the consideration is re-invested in the purchase of new house property ?"

3."The appellant prays that the order of the CIT(A) on the above grounds be set aside and that of the Assessing Officer be restored."

4. "The appellant craves leave to add, delete, alter, amend and modify any or all grounds of appeal."

3. None appeared on behalf of the assessee. The brief facts of this appeal are that assessee is an individual deriving income from salaries, income from business, income from house property, income from capital gains and income from other sources. The return of income for the A.Y.2011-12 was filed by the assessee on 06/12/2011 declaring total income of Rs. 21,33,893/- which was duly processed u/s.143(1) (of Income Tax Act, 1961). Later, the assessment was sought to be reopened by issue of notice u/s.148 (of Income Tax Act, 1961) on 23/07/2015. In reply, the assessee vide letter dated 21/04/2016 intimated the ld. AO that the original return of income filed on 06/12/2011 may be treated as return filed in response to notice u/s.148 (of Income Tax Act, 1961). The copy of reasons recorded for reopening was given to the assessee on 02/06/2016. We find that the ld. AO had observed that as per AIR information received, the assessee had sold immovable property situated at Flat No.601, 6th Floor, Mariden Plot No.371, Road No.16, TPSN 3 P, Mumbai – 400 050 for Rs. 35,00,000/- on 12/04/2010.

The assessee was asked to reconcile the same with the return of income filed by him. The assessee filed a reply dated 14/12/2016 stating that he had not made any such transaction for A.Y.2011-12 and that the said transaction might have been wrongly reflected by using his PAN and requested the ld. AO accordingly to kindly re-check with the Registrar of Assurance. The assessee further stated that the said transactions might belong to Babar Estate Pvt. Ltd., and they have been already scrutinized for the relevant year and also enclosed copy of the assessment order before the ld. AO. Accordingly, the ld. AO sought to verify with the office of Joint Sub-Registrar (MSD) Andheri-4 by issuing notice u/s.133(6) (of Income Tax Act, 1961) on 15/12/2010 seeking details of property transaction done by the assessee. The information was received from Sub-Registrar Office vide letter dated 27/12/2016 wherein it was confirmed that the assessee registered his agreement with Sub-Registrar office vide three documents. Accordingly, the ld. AO observed that from the evidence furnished by the Sub-Registrar office, the assessee had sold an immovable property being residential flat during the year for Rs.35 lakhs and had not offered any capital gains thereon. Thereafter, the assessee furnished the capital gains working on 27/12/2016 before the ld. AO, computing the capital gains at Rs.5,53,574/- and also submitted that such long term capital gain was re- invested in purchase of new residential house at Crown Palace, Bandra. We find that the ld. AO disregarded this capital gain working filed by the assessee during the course of assessment proceedings and observed that in view of decision of the Hon’ble Supreme Court in the case of Goetze India Ltd., reported in 284 ITR 323 and observed that since claim of capital gains and subsequent re-investment thereon was not made by the assessee in the return of income, the same is to be rejected. Accordingly, the ld. AO sought to treat the sale consideration of the property as unexplained investment amounting to Rs. 35,00,000/- and added the same in the assessment.

3.1. Further, the ld. AO also received information from ITO-19 (3)(3), Mumbai that during the course of assessment proceedings of M/s. Yasmin Sabir Ali (wife of assessee), it was found that assessee has jointly acquired a property for Rs.4.10 Crores as per agreement registered on 10/12/2010 and that the wife of the assessee could not explain the source of investments. It was further observed that the copy of the agreement filed by wife of assessee during the course of assessment proceedings contain purchase value of property at Rs.6.03 Crores as against Rs.4.10 Crores reported in AIR Information. Since, the wife could not explain the source of investment, 50% value was added as unexplained investment u/s.69 (of Income Tax Act, 1961) in her hands and balance 50% was sought to be taxed in the hands of the assessee being a joint owner. This is in connection with the purchase of property at Crown Palace, 23rd Road, Bandra (W), Mumbai – 400 005. The ld. AO observed that assessee also failed to explain the source of investment in this property and accordingly, proceeded to add Rs.3,01,50,000 (6,03,00,000 * 50%) as unexplained investment u/s.69 (of Income Tax Act, 1961) while completing the assessment.

3.2. Before the ld. CIT(A), the assessee explained that assessee had purchased the property situated at flat No.601, 6th Floor, Mariden Plot No.371, Road No.16, TPSN 3 P, Mumbai – 400 050 on 31/12/2003 from Desley Aurelia Sequeria and Ronald Wincent Sequeria for Rs.7,50,000/- and enclosed a copy of the agreement entered thereon, vide pages 18-45 of paper book filed before the CIT(A). The assessee sold this property for Rs.35,00,000/- on 12/04/2010. The assessee had invested Rs.19,81,700/- (claimed to the extent of capital gains) in purchase of new residential house at Crown Palace, Bandra (W), Mumbai. The assessee placed reliance on the decision of the Hon’ble Jurisdictional High Court in the case of Pruthvi Brokers and Shareholders Pvt. Ltd., reported in 349 ITR 336 and the Hon’ble Delhi High Court in the case of CIT vs. Jai Parabolic Springs Ltd., reported in 306 ITR 42 (Del) to accept the computation of capital gains given by the assessee in respect of this property and its consequential claim of exemption u/s.54 (of Income Tax Act, 1961) in respect of investment made in Crown Palance, Bandra, Mumbai.

3.3. With regard to addition made towards unexplained investment in another property being 50% joint ownership share in the hands of the assessee at Rs. 3,01,50,000, is concerned, the assessee narrated the entire facts of the said addition as under:-

a) The assessee jointly alongwith his wife had purchased flat No.502, admeasuring 970 sq.ft, 30th Road, Bandra (W), Mumbai on 26/11/2007 for a consideration of Rs.105,05,000/- from Grace Property Developers. The said property was sold by the assessee for Rs.6,03,00,000/- alongwith his wife jointly. The sale proceeds of the property was re-invested in a property situated at Crown Palace, 23rd Road, Bandra (W), Mumbai – 400 005 for Rs.6,03,00,000 jointly with his wife. The assessee filed the details of investments made in Crown Palace together with its respective concerns in the form of additional evidences and requested the ld. CIT(A) to admit the same in Rule 46A (of Income Tax Rules, 1962). The assessee also gave computation of capital gains in respect of the property situated at Flat No.502, 30th Road, Bandra together with the claim of exemption u/s.54 (of Income Tax Act, 1961) for re-investment in Crown Palace, Bandra property.

3.4. Ld. CIT(A) called for a remand report from the ld. AO. In the said remand report, the ld. AO objected to the admission of additional evidences filed by the assessee and did not give any comment with regard to the various additional evidences submitted by the assessee on merits.

3.5. The ld. CIT(A) accordingly proceeded to examine the claim of the assessee on his own as under:-

a) With regard to sale of property made by the assessee in respect of property situated at Flat No.601, 6th Floor, Mariden, Plot No.371, Road No.16, TPSN 3 P, Mumbai – 400 050, the ld. CIT(A) accepted the workings of the capital gain filed by the assessee at Rs.5,53,574/- and also held that assessee is eligible for claim of exemption u/s.54 (of Income Tax Act, 1961) as the long term capital given had been duly re-invested in purchase of new residential house at Crown Palace, Bandra (W), Mumbai.

3.6. The ld. CIT(A) also held that this additional evidence and the working given by the assessee for computation of capital gains were rejected by the ld. AO by placing reliance on the decision of the Hon’ble Supreme Court in the case of Goetze India Ltd., reported in 284 ITR 323, whereas the said decision categorically held that the appellate authorities could however entertain such a claim of the assessee. Accordingly, the ld. CIT(A) by also placing the reliance on the decision of the Hon’ble Jurisdictional High Court in the case of Pruthvi Brokers and Shareholders Pvt. Ltd., reported in 349 ITR 336 (Bom) admitted all those additional evidences and granted relief to the assessee.

3.7. With regard to another property situated at Flat No.502, 30th Road, Bandra West, Mumbai, the ld. CIT(A) on perusal of various additional evidences filed by the assessee observed that this property was purchased jointly by the assessee with his wife on 26/11/2007 for total consideration of Rs.105,05,000/- from Grace property developers and that the same was sold during the year for a total consideration for Rs. 6,03,00,000/-. The ld. CIT(A) further observed that assessee had re- invested the long term capital gain thereon in purchase of new residential house at Crown Palace, Bandra West, Mumbai for which details of re- investment together with the respective sources were duly filed by the assessee in the form of additional evidences which was also examined by the ld. CIT(A). Since, the long term capital given had been re-invested, the ld. CIT(A) held that assessee would be eligible for claim of deduction u/s.54 (of Income Tax Act, 1961).

3.8. The ld. CIT(A) further observed that the ld. AO in the remand report had not objected or had not given any adverse remark regarding the additional evidences filed by the assessee with regard to reinvestment in single house property at Crown Palace, Bandra West, Mumbai. The ld. CIT(A) further observed that the ld. AO in the remand report had merely stated that the claim of deduction u/s.54 (of Income Tax Act, 1961) would be available only in respect of one property and not for two properties.

3.9. The ld. CIT(A) however observed that the details filed by the assessee in the form of additional evidences require to be admitted and since no adverse remarks were given by the ld. AO regarding those evidences on merits of the case, proceeded to examine the same on his own and held that assessee’s share of long term capital gains on sale of Flat No.501, ‘Anni ville’ building in 30th Road, Bandra (W), Mumbai worked out to Rs.1,27,73,349/- and that since the entire long term capital gain had been duly re-invested in purchase of new house at Crown Palace, Bandra West, the assessee would be entitled for exemption u/s.54 (of Income Tax Act, 1961) on sale of second property also.

4. Aggrieved, the revenue is in appeal before us.

5. The aforesaid facts narrated in details remain undisputed and hence the same are not reiterated for the sake of brevity. We find that the ld. AO in the entire remand report had ultimately concluded that assessee is not eligible for exemption u/s.54 (of Income Tax Act, 1961) in the instant case as he had sold two properties and re-invested in one residential house. We find that no comments were made on the facts of the case together with the various additional evidences submitted by the assessee in the remand report of the ld. AO. Accordingly, we find that the ld. CIT(A) proceeded to examine those additional evidences on merits on his own and the same, in our considered opinion, would not be in violation of Rule 46A (of Income Tax Rules, 1962), as the ld. AO had been given proper opportunity to consider those evidences, which the ld. AO in his wisdom had decided not to look into. Hence, there is no need for the ld. AO to get a second chance to examine the very same evidences that are already available on record as requested in the ground raised by the revenue.

5.1. We find that the issue in dispute herein is when assessee sells two properties and re-invests in one residential house, whether he is entitled for exemption u/s.54 (of Income Tax Act, 1961) or not? We find that the exemption u/s.54 (of Income Tax Act, 1961) is granted to the assessee for re-investment made in residential house. The Section nowhere restricts the claim of the assessee that he should have sold only one property and claimed exemption u/s.54 (of Income Tax Act, 1961) for one property. In fact prior to the amendment made in Section 54 (of Income Tax Act, 1961) which came into effect from Finance (No.2 ) Act, 2014 w.e.f. A.Y.2015-16, the very same Section provided for exemption even if assessee had re-invested in more than one residential house. It nowhere prohibited the assessee to sell more than one residential house. In the instant case, the assessee has sold two residential properties and re- invested in one residential property. Hence, in our considered opinion, the entire conditions of Section 54 (of Income Tax Act, 1961), both prior to amendment as well as subsequent to amendment, had been duly satisfied, which had been duly appreciated by the ld. CIT(A) in the instant case. Hence, we do not find any infirmity in the order of the ld. CIT(A) granting relief to the assessee. Accordingly, the grounds raised by the Revenue are dismissed.

6. In the result, appeal of the Revenue is dismissed.

Order pronounced on 11/11/2020 by way of proper mentioning in the notice board.

Sd/-

(SAKTIJIT DEY)

Sd/-

(M.BALAGANESH)

JUDICIAL MEMBER ACCOUNTANT MEMBER

Mumbai; Dated 11/11/2020