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2013 (2) TMI 505 - AT - Income TaxBenefit of deduction under section 54F denied - Jurisdiction u/s 263 by Commissioner stating that assessee was engaged in business of sale and purchase of properties thus he could not claim benefit of deduction under section 54F - The assessee was deriving income from 'dealing in property transactions' - as per CIT(A) claim qua sale of some plots/land could not have been treated by the AO as 'capital gain' - Held that:- AO had himself treated the main income of the assessee from purchase and sale of plots/land. The assessee himself has disclosed this fact over the years. The Assessing Officer has made proper inquiries in this regard & the Commissioner (Appeals) has proceeded on a notion that an assessee, whose main business was purchase and sale of plots/lands, could not claim LTCG on the sale of some plot/land even if these were held for quite some time and the sale consideration even from those plots to be treated as assessee's business income. There is no dispute regarding the source of income of the assessee which was mainly from the business of purchase and sale of plots/lands. Yet, it did not mean that assessee was debarred from purchasing and holding some plots/land as capital asset and claim benefit under section 54F. The entire facts regarding this aspect go to prove that the assessee had kept the impugned asset and has earned LTCG, which has been invested in terms of provisions of section 54F. The AO' action did not call for any enquiry in this regard as he had taken one of the possible view keeping in view the entire facts. The Commissioner can have his own view and that may be other possible view. But in such situations, the order cannot be treated as erroneous.The Commissioner cannot revise the order on this aspect. AO has also made requisite enquiries regarding other aspects of investments made and liabilities shown by the assessee and other expenses, which is clearly explained by the assessee - the order of the Commissioner is set aside and that of the Assessing Officer is restored - in favour of assessee.
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