2023 (1) TMI 479 - AT - Income Tax
Orders of Appellate Tribunal - section 51 addition - correctness of the assessee’s forfeiture claim itself - HELD THAT:- We are forced to conclude that the assessee has failed to prove this socalled cash advance amount as the sum forfeited u/s 51. We, therefore, reject all of her arguments as lacking genuineness in light of human probabilities as per Sumati Dayal [1995 (3) TMI 3 - SUPREME COURT] And CIT Vs. Durga Prasad More[1971 (8) TMI 17 - SUPREME COURT]. AO is accordingly directed to assess this amount as “unexplained” only. Necessary computation shall follow as per law.
The assessee at this stage vehemently argued that we could not change the head of income in section 254(1) proceedings - We are afraid that the learned counsel’s instant argument very well goes against the hon’ble jurisdictional high court’s landmark decision in Gilbert and Barker Manufacturing Company [1976 (12) TMI 39 - BOMBAY HIGH COURT] deciding the issue in favour of the tribunal’s jurisdiction to this effect. We make it clear that we have heard the assessee at length regarding the instant former issue vis-à-vis taxability of the impugned section. AO shall ensure therefore that the impugned sum is assessed as “unexplained” followed by his necessary computation to be finalized as per law. This first and foremost issue is decided in Revenue’s favour in foregoing terms.
Deduction u/s 54F - We note from a perusal of the CIT(A)’s detailed discussion that both the lower authorities held the assessee ought to have deposited in her capital gain account scheme. It emerges from a perusal of the case file that she had very well purchased the new residential asset/house on 28-03-2013 very well even before the due date of filing the return u/s.139(1) - We thus delete the impugned disallowance for this precise reason alone since no other specific reason has been pointed out in both the lower authorities respective orders under challenge. Assessee succeeds in her instant latter substantive ground therefore.