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2022 (7) TMI 1085 - AT - Income TaxReopening of assessment u/s 147 - JD agreement entered - Exemption u/s 54F - provisions of section 2(47)v) and 2(47)(vi) are clearly attracted in this case and the capital gains are to be worked out in the impugned A.Y.- additional ground raised before him for the first-time claiming exemption u/s 54F - HELD THAT:- It is an admitted fact that the assessee had not filed the return of income despite issuance and service of notice u/s 148 of the I.T. Act. As per provisions of section 54F, the assessee is not entitled to deduction u/s 54F, if he has more than one residential flat other than the new asset on the date of transfer of the capital asset. However, it is not known as to whether the assessee owns more than one house other than the new asset since no return was filed and no enquiry was conducted either by the AO or the CIT(A). We find the learned CIT (A) without ascertaining the basic requirement was carried away by the arguments advanced by the assessee before him and allowed the additional ground raised by the assessee which is not a legal one but requires verification of fact. Neither she has verified the facts herself nor called for a remand report and for the reasons best known to her has allowed the claim of exemption u/s 54F of the I.T. Act in respect of 52 flats without addressing the various issues raised by the Assessing Officer in the assessment order. Considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore the issue to the file of the learned CIT (A) with a direction to decide the issue afresh and in accordance with law after giving due opportunity of being heard to the assessee. If required, the learned CIT (A) shall call for a remand report from the Assessing Officer. The learned CIT (A) is also directed to consider as to how the assessee is entitled to the benefit of section 54F of the Act when as per the development agreement traced during the course of search and seizure operation in the case of SNR Nirman India Pvt. Ltd the assessee has received 52 constructed flats and whether that will amount to construction of a residential flat. The grounds raised by the Revenue are accordingly allowed for statistical purposes.
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