THE HON BLE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND HON BLE SRI JUSTICE SANJAY KUMAR I.T.T.A. Nos.633 & 634 of 2014 DATED:29.10.2014 I.T.T.A. No. 633 of 2014 Between: Nikhil Surana, Secunderabad. Appellant And Deputy Commissioner of Income Tax, Hyderabad. .Respondent HON BLE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND HON BLE SRI JUSTICE SANJAY KUMAR I.T.T.A. Nos.633 & 634 of 2014 Common Judgment : (per Hon ble Chief Justice Sri Kalyan Jyoti Sengupta) These appeals are sought to be preferred against common judgment and order of learned Tribunal dated 21.2.2014 in relation to assessment order 2009-10 on following suggested questions of law: 1. Whether on facts and in circumstances of case, learned Income Tax Appellate Tribunal was correct in sustaining inclusion of Rs.7,09,750/- allegedly paid to appellant as sale consideration by purchaser viz. Sainath Estates Pvt. Ltd., over and above sale consideration declared by appellant for sale of his immovable property comprising of land with industrial sheds when said payment is not supported by any receipts signed by appellant or documentary evidence in support of payment and payment was denied by appellant. 2. Whether on facts and in circumstances of case finding of learned Income Tax Appellate Tribunal that said amount of Rs.7,09,750/- forming part of sum of Rs.1,60,00,000/- was received by appellant towards sale consideration is arbitrary, unreasonable supported by no evidence and/or perverse ? 3. Whether on facts and in circumstances of case, learned Income Tax Appellate Tribunal is correct in remitting matter relating to valuation of property as on 1.4.81 to file of assessing officer when said valuation is covered by registered valuer s certificate dated 1.12.2010 and there is no material on record to doubt or to reject above valuation made by Registered Valuer. 4. Whether on facts and in circumstances of case, learned Income Tax Appellate Tribunal was correct in sustaining inclusion of Rs.1,52,90,250/- allegedly paid to appellant as sale consideration by purchaser viz., Sainath Estates Pvt. Ltd., over and above sale consideration declared by appellant for sale of his immovable property comprising of land with industrial sheds when said payment is not supported by any receipts signed by appellant or documentary evidence in support of payment and payment was denied by appellant ? 5. Whether on facts and in circumstances of case, finding of learned Income Tax Appellate Tribunal that said amount of Rs.1,52,90,250/- forming part of sum of Rs.1,60,00,000/- was received by appellant towards sale consideration is arbitrary, unreasonable supported by no evidence and/or perverse ? 6. Whether on facts and in circumstances of case, learned Income Tax Appellate Tribunal is correct in remitting matter relating to valuation of property as on 1.4.81 to file of assessing officer when said valuation is covered by registered valuer s certificate dated 1.12.2010 and there is no material on record to doubt or to reject above valuation made by Registered Valuer ? 7. Whether on facts and in circumstances of case, appellant is entitled to claim deduction under Section 54-F in respect of all nine residential flats which were acquired by him while computing capital gain on sale of above property ? 8. Whether on facts and in circumstances of case, learned Income Tax Appellate Tribunal is justified in restricting deduction under Section 54-F to only residential flat out of 9 flats acquired, ignoring several decisions of High Court including jurisdictional High court which held that deduction should be given for all residential flats acquired and not restricted to merely one residential flat alone ? 9. Whether on facts and in circumstances of case, learned Income Tax Appellate Tribunal is justified in not admitting additional grounds relating to deduction under Section 54F in respect of all nine residential flats acquired by appellant when relevant facts are all available notwithstanding decisions of Hon ble Supreme Court in Jute Corporation of India Ltd., vs. CIT(reported in 187 ITR 688) and in NTPC vs. CIT (reported in 229 ITR 383) permitting assessee to raise new ground before learned Income Tax Appellate Tribunal not raised earlier ? It appears from aforesaid suggested questions of law that specific grievance is in relation to inclusion of more amount with consideration for sale of immovable property comprising of land and industrial sheds and valuation of property, secondly not having given any deduction fully under Section 54-F of Income Tax Act, 1961 (for short Act ) out of said consideration. We have heard Mr. Y. Ratnakar, learned Senior Counsel and have gone through impugned judgment and order of learned Tribunal. As far as first issue relating to inclusion of sale consideration is concerned, we notice from findings in judgment of learned Tribunal that initially assesee denied having received any cash payment on account of consideration of sale of aforesaid immovable property. However, when some signed and unsigned vouchers regarding receipt of payment were confronted and entries recorded in books of accounts of payee were produced and confronted, assessee was compelled to admit that some cash payment was received on account of consideration. Assessing Officer also summoned payee and pursuant thereto books of accounts were also produced. After analyzing material on record and disbelieving statement of assessee, Tribunal came to conclusion factually that sum of Rs. 16.20 crores was received. It is absolutely appreciation of fact and based on certain materials, this Court cannot re-appreciate in absence of element of perversity, evidence and factual issue. On question of benefit under Section 54-F is concerned, learned Tribunal found that for first time, this ground was sought to be agitated before Tribunal and this Court. It is primarily relatable to fact. When it is not question of law based on fact on record at appellate stage in Tribunal, it cannot be entertained. Following decision of Supreme Court in National Thermal Power Company vs. Commissioner of Income Tax, learned Tribunal held that in such situation, additional grounds which were not raised before authority below should not be allowed to be raised in appeal. We, therefore, do not find any error or infirmity in judgment and order of learned Tribunal. With reference to judgment of Supreme Court relied on by learned Tribunal in case of National Thermal Power Company, wherein it is observed by Apex Court as follows: Undoubtedly, Tribunal will have discretion to allow or not allow new ground to be raised. But where Tribunal is only required to consider question of law arising from facts which are on record in assessment proceedings we fail to see why such question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess tax liability of assessee. It appears, learned Tribunal found that this factual aspect was never raised before Tribunal. Our reading of Supreme Court judgment is that learned Tribunal can allow to raise question before Tribunal for first time provided it is backed by factual materials, which have been brought before authorities below, not otherwise. So, we think learned Tribunal has taken correct course of action in allowing to raise this question. We therefore, find no element of law involved in appeals. appeals are accordingly dismissed. No order as to costs. K.J. SENGUPTA, CJ SANJAY KUMAR, J 29th October, 2014 Pnb Nikhil Surana v. Deputy Commissioner of Income-tax, Hyderabad