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Shailaja B-44, Vishrantika Apartments, Plot No. 5-A, Sector-3, Dwarka, New Delhi Vs. ITO Ward-69(5) Block-D, Pratyakash Kar Bhawan, Civic Centre, JLN Marg, New Delhi
April, 21st 2021

1 ITA No. 7558/Del/2018

IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: ‘SMC-1’ NEW DELHI

BEFORE SHRI R. K. PANDA ACCOUNTANT MEMBER
AND

MS SUCHITRA KAMBLE, JUDICIAL MEMBER

I.T.A. No. 7558/DEL/2018 (A.Y 2015-16)
(THROUGH VIDEO CONFERENCING)

Shailaja Vs ITO

B-44, Vishrantika Apartments, Ward-69(5)

Plot No. 5-A, Sector-3, Dwarka, Block-D, Pratyakash Kar

New Delhi Bhawan, Civic Centre,

BCSPS5048B JLN Marg,

(APPELLANT) New Delhi

(RESPONDENT)

Appellant by Sh. Sushil Chadha, CA
Respondent by Mrs. Shivani Bansal, Sr. DR

Date of Hearing 10.03.2021

Date of Pronouncement 20.04.2021

ORDER
PER SUCHITRA KAMBLE, JM

This appeal is filed by the assessee against order dated 31/08/2016
passed by CIT (A)-Meerut for assessment year 2012-13.

2. The grounds of appeal are as under:-
“1. The disallowance of loss of STCG of 1,12,76,573/- is bad in law and on
the facts of the case.”
2. The basis of disallowance is bad in law and on the facts of the case.”

3. The assessee filed her original return of income as on 31/08/2015
declaring an income of Rs. 5,71,960/- along with paying of double taxes of Rs.
43,230/- including self-assessment tax of Rs. 33,230/- as on 31/8/2015. In
the original return of income loss against sale of property of Rs.1,12,76,573/-
2 ITA No. 7558/Del/2018

was not claimed by the assessee under the bonafide belief that taxes are paid
against income only. The assessee is a Government School Teacher till 2017
and left the job due to her health. The assessee did not claim TDS of
Rs.52,500/- deducted against the sale of property but paid additional self
assessment tax of Rs. 33,230/-. The assessee has not claimed credit of Rs.
52,500/- as she was under the belief that TDS against loss is not claimable.
The Assessing Officer assessed the total income of Rs.5,35,980/- and
disallowed short term capital loss of Rs.1,12,76,573/- and did not allow the
same to be carried forward for set off.

4. Being aggrieved by the assessment order, the assessee filed appeal before
the CIT(A). The CIT(A) dismissed the appeal of the assessee.

5. The Ld. AR submitted that that if original return is filed before due date
and on discovery of any omission or wrong statement, return can be revised
u/s 139(5). The Ld. AR relied upon the decision of the Hon’ble Delhi High
Court in case of Escorts Mahle Ltd. vs. CIT 2009 119 ITD 119 (Delhi). The Ld.
AR further submitted that the entire process created artificial loss which is set
off against subsequent capital gain income of Rs. 34,73,196/- in Assessment
Year 2017-18 is incorrect observation by the Assessing Officer. The Ld. AR
submitted that the assessee incurred loss as on 8/7/2014 and earned capital
gain as on 3/1/2017. In other words, the assessee was not aware of future
earning at the time of loss. The Ld. AR further submitted that the assessee set
off this loss against income by filing belated return during assessment
proceedings of Assessment Year 2015-16 only as on 25/11/2017 after verbal
confirmation of allowbility of loss from the Assessing Officer. The Ld. AR
further submitted that it proves the bonafide belief of assessee and even if the
set off loss was ignored, the assessee was eligible to claim deduction u/s 54F of
the Income Tax Act, 1961 resulting in ‘NIL’ taxability in the hand of the
assessee.
3 ITA No. 7558/Del/2018

6. The Ld. DR relied upon the assessment order and the order of the CIT(A).

7. We have heard both the parties and perused the material available on
record. It is pertinent to note that the assessee has filed original return of
income as on 31/08/2015 declaring an income of Rs. 5,71,960/- along with
paying of double taxes of Rs. 43,230/- including self-assessment tax of Rs.
33,230/- on 31/8/2015. In the original return of income loss against sale of
property of Rs.1,12,76,573/- was not claimed by the assessee under the
bonafide belief that taxes are paid against income only. The assessee did not
claim TDS of Rs.52,500/- deducted against the sale of property but paid
additional self assessment tax of Rs. 33,230/-. The assessee has not given
credit of Rs. 52,500/- as the assessee was under the belief that TDS against
loss is not claimable. But the fact remains that there was a sale of property
which should have been declared by the assessee either in the original return
or in the revised return and should have paid taxes accordingly or at the most
should have offered to tax to the Revenue. Thus, the assessee has not done the
same in the present case. There was property purchase and though the
assessee is entitled to claim benefit under Section 54F, but the same is
determined when she satisfies all the conditions laid down in the said
provisions, the same was not done by the assessee at the revised income stage
also. Hence, the Assessing Officer has rightly made addition as well as the
CIT(A) rightly confirmed the addition. Hence, appeal of the assessee is
dismissed.

8. In result, appeal of the assessee is dismissed.
Order pronounced in the Open Court on this 20th Day of April, 2021

Sd/- Sd/-
(R. K. PANDA) (SUCHITRA KAMBLE)
ACCOUNTANT MEMBER
Dated : 20/04/2021 JUDICIAL MEMBER
R. Naheed *
4 ITA No. 7558/Del/2018

Copy forwarded to:

1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT

ASSISTANT REGISTRAR
ITAT NEW DELHI

Date of dictation 10.03.2021
Date on which the typed draft is placed 10.03.2021
before the dictating Member
Date on which the typed draft is placed 20.04.2021
before the Other Member 20.04.2021
Date on which the approved draft comes to 20.04.2021
the Sr. PS/PS
Date on which the fair order is placed 20.04.2021
before the Dictating Member for 20.04.2021
pronouncement 20.04.2021
Date on which the fair order comes back to
the Sr. PS/PS
Date on which the final order is uploaded
on the website of ITAT
Date on which the file goes to the Bench
Clerk
Date on which the file goes to the Head
Clerk
The date on which the file goes to the
Assistant Registrar for signature on the
order
Date of dispatch of the Order

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