Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2020 (9) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (9) TMI 70 - AT - Income TaxExemption u/s.54B and 54F - new piece of land was purchased by the assessee in the names of his two sons - assessee contended that at the time of transfer of property, he had no right over the same except the amount received in the capacity of Approver - Family partition took place before effecting the transfer of property and the land in question was partitioned in favour of his sons - HELD THAT:- From the findings recorded by the ld. CIT(A), it becomes apparent that he accepted the assessee’s claim that he was not owner of the property at the time of sale inasmuch as the Partition deed, transferring interest in the property to his sons, was executed prior to the date of sale. Once the assessee was not the owner of the property, there could obviously have been no question of allowing exemption u/ss.54B or 54F - To that extent, the view taken by the ld. CIT(A) is correct. Once the assessee is not entitled to exemption because he was not the owner of the property transferred, there can be no question of computing any capital gain in his hands from the transfer of the same property. Assessee did compute capital gain in his return of income and thereafter claimed exemptions u/ss.54B and 54F of the Act. Simply because such a computation of capital gain was made on an ill-advice, cannot bind the assessee for the times to come, if, in fact, he was not liable for such capital gain. As the proceedings in the first appeal are continuation of the assessment proceedings, there can be no impediment on the assessee in making a lawful claim before the CIT(A) for the first time and the CIT(A) accepting the same, if it is otherwise sustainable. There can be no estoppel against the provisions of the Act. If an assessee is not legally chargeable to tax, he can validly make such a claim before the CIT(A) notwithstanding the fact that the amount was wrongly included in the return of income. The contention of the ld. DR objecting to raising a fresh claim before the ld. CIT(A) for the first time is, ergo, jettisoned. We thus hold that not only the assessee was justified in making a claim of Partition Deed in the first appeal, the ld. CIT(A) was also fully within his jurisdiction in entertaining such a claim. In the absence of the Revenue having filed any cross appeal assailing the acceptance of the genuineness of such a Partition Deed by the ld. CIT(A), such a finding attained finality and the same cannot be challenged before the Tribunal when the appeal of the assessee is under consideration. Direct the AO to consider the income chargeable under the head “Capital gain” in the hands of the assessee by taking full value of consideration towards extinguishment of his right in the property - Appeal is partly allowed.
|