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2017 (3) TMI 1946 - ITAT BENGALURUNature of land sold - capital asset or agricultural land - Deduction u/s 54F - main grievance of the assessee is that though the land was converted for industrial purpose, agricultural operations were continued to be carried on in the land and therefore, same should have been treated as agricultural land - HELD THAT:- We are of the considered opinion that it is not disputed fact that the land was situated beyond the prescribed limits of the Mysore City Corporation and also that the land was converted for non-agricultural purpose by the competent authority, the conversion was sought by the assessee himself. Therefore, the intention of the assessee is manifest from the conduct of conversion of the land into non-agricultural land and the land ceased to be agricultural land. Even the character of land is shown as non-agricultural in the revenue records. Therefore, submission of the learned counsel for the assessee that the land continues to be agricultural land cannot be accepted. New claim made before CIT(A)/FAA - Deduction u/s 54F - investment made in apartment - assessee had not made any claim before the AO for grant of benefit u/s 54F and it is only before the CIT(A) that this ground was raised praying for benefit of section 54F - No doubt, law is quite settled to the extent that new claim can always be made during the course of assessment proceedings even though not made in the return of income. But no new claim can be made for the first time before the appellate authority, though powers of the CIT(A) are co-terminus with that of the AO, it is equally settled law that the CIT(A) cannot do what the AO himself could not have done. Thus we hold that the CIT(A) ought not to have entertained new claim which also requires verification of certain facts as to investment in new house etc. whether the investment was made within prescribed time or not. More so, without affording an opportunity to the AO. This action of CIT(A) offends rule 46A and also it amounts to CIT(A) acting beyond the powers vested with him u/s 250 of the Act or beyond the subject matter of appeal. Appeal filed by the revenue is allowed.
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