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ITO, Ward 11(2), New Delhi. vs Shri Samir Jasuja, DLF 1511-B, Beverly Park-2, Phase-2, Gurgaon.
November, 27th 2015
I.T.A. No. 4187/Del/2012
Assessment Year: 2009-10

                IN THE INCOME TAX APPELLATE TRIBUNAL
                       DELHI BENCH `G' NEW DELHI


      BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER,
                               AND
              SHRI L.P. SAHU, ACCOUNTANT MEMBER

                             I.T.A.No.4187/Del/2012
                                Asstt.Year: 2009-10

ITO,                             vs   Shri Samir Jasuja,
Ward 11(2),                           1511-B, Beverly Park-2,
New Delhi.                             DLF Phase-2, Gurgaon.
                                      (PAN: AAOPJ6453G)

(Appellant)                                 (Respondent)

                            Appellant by: Shri Sujit Kumar, Sr. DR
                           Respondent by : Shri ved Jain, Adv.
                                 Date of Hearing: 19.10.2015
                           Date of pronouncement: 24.11.2015

                                 ORDER


PER CHANDRA MOHAN GARG, JUDICIAL MEMBER

       This appeal by the revenue has been filed against the order of the CIT(A)-

XIII dated 7.5.2012 passed in Appeal No. 214/11-12 for assessment year 2009-

10.


2.     The main grounds raised by the revenue read as under:-


               "1. The Learned CIT(A) has erred on the facts and
               circumstances of the case and in law in allowing the
               notional loss of Rs. 37,73.273/- on F&O foreign
               currency transaction..


                                        1
I.T.A. No. 4187/Del/2012
Assessment Year: 2009-10

                2. The Learned CIT(A) has erred on facts and
               circumstances of the case and in law in allowing the
               claim of Rs. 2.00.87,987/- without the assessee
               fulfilling the conditions prescribed under section
               54F of the Income tax act, 1961."

3.     Briefly stated, the facts giving rise to this appeal are that an order u/s

143(3) of the Income Tax Act, 1961 was passed on 16.12.2011 at assessed

income of Rs. 3,04,44,615 as against the returned income of Rs.43,59,730/-.

The Assessing Officer made disallowances including impugned two

disallowances viz. first disallowance of loss incurred on account of F&O

transaction in foreign currency in stock exchange and second disallowance of

claim of exemption u/s 54F of the Act by holding that the assessee was owner

of more than one property. The aggrieved assessee carried the matter before the

first appellate authority and both these grounds were allowed and impugned

additions deleted. Now, the aggrieved revenue is before this Tribunal in this

second appeal with the ground as reproduced hereinabove.


Ground No. 1

4.     Apropos ground no.1, ld. DR submitted that the ld. CIT(A) has erred on

the facts and circumstances of the case and in law in allowing the notional loss

of Rs. 37,73.273/- on F&O foreign currency transaction. Ld. DR supporting the

action of the Assessing Officer submitted that in view of the specific

clarification contained in Board's Instruction No. 3/2010 dated 23.3.10, the

impugned loss claimed by the assessee under the business head was rightly

                                        2
I.T.A. No. 4187/Del/2012
Assessment Year: 2009-10

treated as notional loss and the same was not allowed to be set off from the

other heads of income or to carry forward the same to the subsequent years.


5.     Replying to the above, learned counsel of the assessee submitted that the

loss suffered by the assessee on the basis of actual transaction in the foreign

exchange derivatives is allowable and the observations of the Assessing Officer

that the transactions are based on marked to market losses is factually correct.

He further pointed out assessee's paper book page no. 64 to 66 and submitted

that on 31.3.09, the assessee had a credit balance of Rs.25,26,727 against the

payment of Rs. 63 lakh made by the assessee during the year, thus, net loss

suffered by the assessee during the relevant financial period is allowable.

Further elaborating the alternative plea of the assessee, learned counsel of the

assessee submitted that the assessee has suffered gross loss of Rs.2.32 crores

and earned a gross profit of Rs.1.94 crore, as such, net loss was Rs.33.73 crore

which is not a notional loss but from the facts of the case, it is clear that the loss

is an actual loss and the same is allowable to the assessee as per section 43(5) of

the Act.


6.     Learned counsel of the assessee also placed reliance on following

judgments:-


     1. CIT vs Kapil Nagpal 2015 (9) TMI 613 ­ Delhi High Court

     2. IVF Advisors (P) Ltd. vs ACIT Mumbai (2015) 55 taxmann.om 469
        (Mumbai ­ Trib.)


                                          3
I.T.A. No. 4187/Del/2012
Assessment Year: 2009-10

   3. HB Stockholdings Ltd. vs CIT, Delhi (2013) 33 taxmann.com 154 (Delhi
      ­ Trib)

   4. DCIT vs Paterson Securities (P) Ltd. (2010) 127 ITD 386 (Chennai)

   5. DCIT vs SSKI Investors Services (P) Ltd. (2009) 29 SOT 78 (Mum)
      (URO)

   6. Smt. Maya A. Ajwani vs ITO-7(2)(4), Mumbai (2015) 56 taxmann.com
      255 (Mumbai-Trib.)

   7. Sunil Sachdeva vs ACIT, Gurgaon (2013) 31 taxmann.com 86 (Delhi ­
      Trib.)
7. On careful consideration of above submissions, from careful perusal of the

impugned order, we note that the CIT(A) has dealt this issue in para 6.3 at page

8 of the impugned order wherein he has held as under:-





           "6.3 I have considered the submission of the appellant
     and observation of the assessing officer. It is seen that
     ASSESSING OFFICER has made disallowance of loss of
     Rs.37,73,273/- incurred on account of F&O transactions in
     foreign currency in a recognized stock exchange. It has been
     observed by the Assessing Officer that these transactions
     represents marked to market losses and in view of the Board's
     Instruction No. 03/2010 dated 23rd March, 2010 such losses are
     not allowable. On the other hand the appellant has contended
     that this is an actual loss incurred during the year on the
     transactions done on recognized stock exchange in foreign
     currency and this is not a notional loss and accordingly the
     above instruction of Board is not applicable. In support of his
     contention, the appellant has filed copy of the transactions ledger
     with M/s PACE Financial Services and PACE Financial Stock
     Broking. The same is filed at page 197 to 199 of the paper book.
     The appellant has also filed copy of bank statements running
     with HSBC Bank where from the payments have been made to the
     brokers. It has been further contented that in any case this being
     a loss incurred during the year is an allowable loss. 1 have
     perused the facts and on going through the same. It is observed
     that the appellant has entered into these F&O transactions

                                        4
I.T.A. No. 4187/Del/2012
Assessment Year: 2009-10

     during the year. In respect of the various transactions entered
     into by the appellant he has incurred loss of Rs.2,32,10,575/- and
     earned profit of Rs. 1,94,37,302/-. Thus there is an actual loss of
     Rs.37,73,273/- during the year in such transactions. Against this
     the appellant has made a payment of Rs.63 Lac on various dates
     to the Broker. After adjusting the above losses there is a credit
     balance with the broker of Rs.25,26,727/-. In view of these facts
     the observation of the Assessing Officer that the above said loss
     is a notional loss and represents marked to market is not correct.
     It is not a notional entry which has been passed on the last day of
     the financial year and represents the value as per the market
     value on 31st March. It is a running account whereby profit and
     loss are being incurred on settlement day and amount being
     debited and credited on account of loss or the profit as the case
     may be. Accordingly this being an actual loss net balance of the
     profit and loss earned/incurred is allowable under the provisions
     of the Act. The Board circular regarding notional loss is not
     applicable to such transactions. The Assessing Officer is
     accordingly directed to allow the loss incurred on F&O foreign
     currency transactions. This ground of appeal is allowed."
8.    On careful consideration of above rival submissions and operative part of

the impugned order on the issue from the assessment order, we observe that the

main allegation of the Assessing Officer was that as per specific clarification

contained in Board's instruction (supra), the loss claimed by the assessee under

the business head is a notional loss whereas the CIT(A), after considering the

facts and circumstances of the case and analyzing the claim of the assessee,

observed that the assessee has entered in various F&O transactions and he has

incurred loss and has also earned profit and finally he sustained actual loss of

Rs.37,73,273 during the relevant financial year from such transaction.      Ld.

CIT(A) rightly demolished the conclusion of the Assessing Officer that the said

loss is a notional loss and represents marked to market is not correct. We are


                                        5
I.T.A. No. 4187/Del/2012
Assessment Year: 2009-10

also in agreement with the conclusion of the CIT(A) that the claim of the

assessee is not in pursuance to the notional entry which has been passed on the

last date of the financial year and represents the value as per market value as on

31st March. Ld. CIT(A) explicitly held that the entry was passed out of running

account whereby profit and loss which have been incurred on settlement day and

amount have been debited and credited on account of loss or profit as the case

may be. Ld. CIT(A) finally granted relief to the assessee by holding that as per

Circular regarding notional loss is not applicable to the transaction which was

undertaken by the assessee as F&O transaction. On logical analysis of the order

of the first appellate authority on this issue, we reach to a logical conclusion that

the Assessing Officer made addition regarding the Board Circular which is not

actually applicable to the facts and circumstances of the present case, therefore,

the CIT(A) was right in concluding this issue in favour of the assessee. We are

unable to see any perversity or any other valid reason to interfere with the order

of the ld. CIT(A). Accordingly, ground no. 1 of the revenue fails.


Ground No.2


9.    Apropos ground no.2, ld. DR contended that the Learned CIT(A) has

erred on facts and circumstances of the case and in law in allowing the

claim of Rs. 2.00.87,987/- without the assessee fulfilling the conditions

prescribed under section 54F of the Income tax act, 1961 because the

assessee made a claim without verifying the pre-conditions prescribed

                                         6
I.T.A. No. 4187/Del/2012
Assessment Year: 2009-10

under the said provisions. Ld. DR took us through relevant part of the

assessment order and submitted that after detailed deliberations and

consideration of the assessee's stand and explanation, the Assessing

Officer rightly held that exemption u/s 54 of the Act is available only if

on the date of transfer of the original asset, the taxpayer does not own

more than one residential house property other than the new house. Ld.

DR further submitted that since the assessee owned more than one house

property on the date of transfer of original asset, therefore, he was not

entitled for deduction u/s 54 of the Act.        Ld. DR also reiterated the

allegations of the Assessing Officer from page 9 to 12 of the assessment

order and submitted that the assessee has not able to prove that the source

of above investment in capital gain account was the maturity amount of

the same funds as necessary evidences thereof have not been furnished

and the deduction u/s 54 or 54F will be available to the taxpayer only if

the assessee invests either out of sale proceeds of the asset of his other

personal funds but not from borrowed funds.


10.    Replying to the above, learned counsel of the assessee supported the

order of the first appellate authority and submitted that the Assessing Officer

has alleged that the assessee has gifted property no. G-602 to his wife but the

rental income is being shown by him and thus, the assessee should be

considered as the owner of the property. Learned counsel of the assessee


                                      7
I.T.A. No. 4187/Del/2012
Assessment Year: 2009-10

vehemently contended that the Assessing Officer has also wrongly alleged that

the Aravali farm is a residential house and the assessee has not been able to

prove the source of investment in the capital gain scheme account. Learned

counsel of the assessee submitted that these allegations of the Assessing Officer

are factually incorrect and are also legally untenable as the assessee was the

owner of only one property i.e. JPH-03, Central Park, Sector 42, Gurgaon

having 50% share only which is clear from the copy of the conveyance deed

available at assessee's paper book page 116 to 119. Learned counsel of the

assessee further pointed out that the assessee was the owner of property no. G-

602 till 29.1.09 only and when the assessee has gifted said property through the

registered deed to his wife, then the assessee did not remain the owner of the

said property on the date of sale of the property on which the capital gain has

arisen i.e. 2.2.2009. He also shows us Apartment Buyer Agreement at page 142

and 143 and gift deed available at paper book page 146-149 which was

submitted before the authorities below. Learned counsel of the assessee

submitted that the Assessing Officer did not properly consider the submissions

and explanation of the assessee that the rental income for the whole year has

been shown by the assessee because the implication of the clubbing provision as

per section 64(1) of the Act and only showing the rental income does not mean

that the assessee continues to be the owner of the gifted property. Learned

counsel of the assessee placed reliance on the decision of ITAT Mumbai `B'

Bench in the case of Smt. Maya A. Ajwani vs ITO-7(2)(4), Mumbai (2015) 56
                                       8
I.T.A. No. 4187/Del/2012
Assessment Year: 2009-10

taxmann.com 255 (Mumbai-Trib.) and submitted that in the similar set of facts

and circumstances, it was held that gift of house to husband prior to the date of

transfer of original asset other than any residential house cannot be disregarded

for the purpose of reckoning assessee's eligibility for deduction u/s 54 of the

Act even if the assessee along with her husband continue to reside in the same

house after gift. The ITAT Mumbai also held that section 64(1)(iv) will not

operate to nullify gift and would operate only to club income from gifted house

in the hands of donor and in this situation, the gift cannot be regarded as sham

transaction merely because gift was made by the assessee to his/her spouse.


11.    On careful consideration of above submissions of both the sides, from the

operative part of the impugned order of the first appellate authority, we note that

the first appellate authority had dealt with this issue in para 10.2 at page 19 of

the impugned order and the relevant observations of the ld. CIT(A) appear on

page 12 which read as under:-


          "On going through the provisions of section 54F it is noticed
          that the benefit is not available to an assessee where the
          assessee owns more than one residential house on the date of
          transfer of the original asset on which the capital gain has
          arisen. In this case the capital gain has arisen on 2nd
          February, 2009. The allegation of the Assessing Officer that
          the appellant was owning following three residential houses
          on 2nd February, 2009:-
          1.   JPH-03, Central Park, Sector 42, Gurgaon, 50% share
          2.   G-602, Central Park, Sector 42, Gurgaon
          3. Aravali Farm, 50% share
          There is no dispute so far as JPH-03, Central Park-, Sector
                                        9
I.T.A. No. 4187/Del/2012
Assessment Year: 2009-10

          42, Gurgaon is concerned as the assessee also admits that he
          was 50% owner of this flat. As regards the flat no. G-602, the
          contention of the appellant is that he has gifted this property
          to his wife on 29th January, 2009 and as such he ceased to be
          the owner on 29th January, 2009. This fact is also noted by
          the Assessing Officer. However, the Assessing Officer is of
          the view that assessee having gifted the property to his wife,
          still continues to be the beneficial owner and showing rental
          income in his hand. In this regard I notice that as per the gift
          deed, the appellant has conveyed all rights and privileges
          whatsoever of the said property forever and has not kept any
          right with him. It has been further stated in the gift deed that
          the donee will be the exclusive and absolute owner and that
          the donee shall enjoy the property with absolute rights
          including the exclusive unrestricted right to sell or transfer
          the said property. The physical vacant possession has also
          been handed over to the Donee. The gift deed is a registered
          deed registered before the Sub-Registrar, Gurgaon on 29
          January, 2009. In view of these facts I hold that the
          observation of the Assessing Officer in the assessment order
          that the appellant continues to be the beneficial owner is not
          correct. The second contention of the Assessing Officer that
          the appellant is showing the rental income in his hand and
          thus appellant is taking a contradictory stand. Firstly by
          merely showing rental income in his hands, the appellant
          can't become owner of the property. Secondly one needs to
          find out the reasons for showing such rental income in his
          hands. There is no dispute to the fact that appellant was
          owner of this flat till 29th January, 2009 and accordingly
          rental income upto that date in any case is to be assessed in
          his hands. Further appellant having gifted this flat to his wife
          on 29th January, 2009 thereafter the appellant despite not
          being owner of the flat, still the rental income from such
          income is to be clubbed in his hand in view of the provisions
          of Section 64(1 )(iv) of the Act. Thus there is no contradiction
          as alleged by the A.O. The explanation of the appellant in this
          regard is found to be correct that it is not his rental income.
          It is because of the clubbing of income provision that income
          earned is being included in his hands under Section 64(1
          )(iv). This does not mean that the appellant is the owner of
          the property. The contention of the Assessing Officer that the
          appellant is taking contradictory stands is not correct. The
          fact remains that as on the date when the original asset on
                                         10
I.T.A. No. 4187/Del/2012
Assessment Year: 2009-10

          which the capital gain has arisen i.e. 2nd February, 2009
          appellant was not the owner of the said flat.
          The next allegation of the Assessing Officer is that the
          appellant is owner of a farm house for which he has referred
          to definition of `Farm House' that is a type of building or
          house which serves the residential purposes in a rural or
          agricultural land. There can't be any dispute about the Farm
          House, if there is a house on the farm land. But the issue is
          whether there is a house on the agriculture (farm) land.
          There does not seem to be any basis for the Assessing Officer
          to conclude that there is a house on the farm. The Assessing
          Officer has picked up the figure of investment from the
          statement of affairs and without examining the fact whether it
          is an agricultural land or a house constructed on agricultural
          land has assumed that there is a house on such agriculture
          land. This observation of the Assessing Officer that appellant
          is having a house on the farm land is without any basis. As
          explained by the appellant, the appellant has only
          agricultural land with no construction whatsoever on the said
          land. The Assessing Officer has simply picked up the assets
          stated in the statement of affairs ignoring the fact that the
          appellant has paid a sum of Rs.5,50,000/- for 50% right in
          the agricultural land being plot no.C-66 in Aravali Retreat.
          There being no material to allege that there is construction
          and there is a house, the same cannot be considered to be a
          residential house for the purpose of Section 54F of the Act. It
          being an agricultural land, it cannot be considered a
          residential house for the purpose of Section 54F of the Act.




          In view of the above stated facts, it is established that
          appellant was having only one residential property and hence
          the appellant fulfils the condition so as to not to own more
          than one house on the date on which the capital gain arose
          for claiming the benefit of Section 54F of the Act.

          The Assessing Officer has further denied the benefit under
          Section 54F on the ground that the appellant was required to
          deposit the net consideration before the due date of
          furnishing return of income i.e. 31st July, 2009. He has
          further stated that the amount of capital gain realized by the
          appellant was first deposited in the mutual fund and then
          appellant has not been able to prove the source of the
          investment in respect of the investment made in the capital

                                        11
I.T.A. No. 4187/Del/2012
Assessment Year: 2009-10

          gain scheme. Further he has held that the amount to be
          deposited in Capital Gain Scheme be the same amount as
          realized from the sale of original assets. In this regard the
          Assessing Officer has cited the judgment of the Bombay
          Bench in the case of Milan Sharat Ruparel vs. ACIT 121 TTJ
          770 (Mum) whereby it was held that investment of capital
          gain account scheme should not come from the borrowed
          funds.

          On going through the facts I notice that the above contention
          of the Assessing Officer is not correct. Further there is no
          requirement under the law that the appellant should deposit
          the money received on sale of original capital asset in the
          Capital Gain Scheme. The only requirement is that the money
          should be deposited in the capital gain account scheme
          before the due date of filing return. Admittedly in this case
          there is no dispute that the money has been deposited before
          the due date of filing the return. However the contention of
          the Assessing Officer that the capital gain realized has been
          first utilized for deposit with the mutual fund cannot be a
          ground for disallowing the exemption. There is no restriction
          on utilization of capital gain realized from sale of original
          asset till its deposit in the Capital Gain Scheme. The
          appellant is free to deal with the same as it may like. The
          allegation of the Assessing Officer that the appellant has not
          been able to prove the source of investment is also not
          correct. During the course of assessment proceedings the
          appellant has filed the relevant details of the capital gain and
          its utilization along with bank account. The money has been
          deposited in the mutual fund and on redemption of the mutual
          fund it has been deposited in the capital gain account
          scheme. Accordingly the allegation of the Assessing Officer
          in this regard is also not correct. The appellant on sale of
          original assets first deposited the proceeds in his bank
          account. From there he deposited the money temporarily with
          mutual funds and before the due date of deposit in Capital
          Gain Scheme, encashed the mutual funds and deposited the
          amount in Capital Gain Scheme. Thus the appellant has
          complied with all the conditions of Section 54F to be eligible
          to claim the exemption. The Assessing Officer is accordingly
          directed to allow the exemption u/s 54F of the IT Act at Rs.
          2,00,87,987/-."


                                         12
I.T.A. No. 4187/Del/2012
Assessment Year: 2009-10

12.    In view of above, at the very outset, let us note some admitted and

undisputed facts viz. the assessee gifted property no. G-602 to his wife on

29.1.2009 through a registered gift deed. The assessee sold property on

2.2.2009 on which the impugned capital gain has arisen.         The rental

income gifted property was taxed in the hands of the assessee during the

relevant financial year and it is also not in dispute that money accrued

from capital gain has been deposited in the capital gain of amount before

the due date of filing the return.


13.    We consider the allegations of the Assessing Officer as well as

conclusion of the CIT(A). In our understanding when the assessee has

parted his legal right through gift deed dated 29.1.2009 and the property

no. G-602 was gifted to his wife, then it cannot be presumed that the

assessee continued to be owner of the said property even after execution

of registered gift deed in favour of his spouse.    So far as the taxable

income from the said property is concerned, the assessee's stand gets

support from the order of the ITAT Mumbai Bench in the case of Smt.

Maya wherein it was held that section 64(1)(iv) will not operate to nullify

gift and would operate only to club income in the hands of donor

assessee.




                                     13
I.T.A. No. 4187/Del/2012
Assessment Year: 2009-10

14.    At this juncture, it is also relevant to note that the assessee is the

owner of only one property i.e. JPH-03, Central Park, Sector 4, having

50% of share as per conveyance deed available at assessee's paper book

pages 96 to 119 after sale of property on 2.2.2009 out of which impugned

capital gain accrued to the assessee. In these facts and circumstances, the

CIT(A) was right in concluding that during the course of assessment

proceedings, the assessee filed the relevant details of capital gain and its

utilization along with copies of the bank account statement and from these

details, it is amply clear that the money of capital gain has been deposited

in mutual fund and on redemption of the mutual fund, it has been

deposited in the capital gain account scheme. It was also noticed that the

assessee on sale of original assets has deposited the proceeds in his bank

account. From there, he deposited the money temporarily with mutual

funds and before the due date of deposit in Capital Gain Scheme,

encashed the mutual funds and deposited the amount in Capital Gain

Scheme as required by the relevant provisions of the Act. On vigilant and

careful consideration of contention of the Assessing Officer as well as

conclusion of the CIT(A) as noted above, we are of the view that the

Assessing Officer rejected the claim of the assessee u/s 54 of the Act

without any justified reason and on incorrect premise which was rightly

allowed by the CIT(A) after properly appreciating and considering the

facts and circumstances of the case in the light of explanation of the
                                     14
I.T.A. No. 4187/Del/2012
Assessment Year: 2009-10

assessee. We are unable to see any infirmity or any other valid reason to

interfere with the order of the ld. CIT(A)           and uphold the same.

Accordingly, ground no. 2 of the revenue is also dismissed.


15.    In the result, the appeal of the revenue is dismissed.


       Order pronounced in the open court on 24.11.2015.


              Sd/-                                          Sd/-


   (L.P. SAHU)                                           (C.M. GARG)
ACCOUNTANT MEMBER                                 JUDICIAL MEMBER

Dated:          November, 2015
`GS'


Copy forwarded to:

1.     Appellant
2.     Respondent
3.     CIT 4.CIT(A)
5.     DR

                                                                Asstt. Registrar




                                      15

 
 
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