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2016 (1) TMI 456 - ITAT VISAKHAPATNAM

2016 (1) TMI 456 - ITAT VISAKHAPATNAM - TMI - Revision u/s 263 - Eligibility for the benefit u/s 54F need to be denied as per CIT(A) - Held that:- The transfer was completed in terms of section 2(47)(v) by giving possession of the property in terms of the sale agreement dated 13.6.2005 registration was delayed on bonafide reasons which was beyond the control of the assessee and sale deed was executed on 25.11.2005 was only a legal formality. The jurisdictional High Court in the case of CIT Vs. A .....

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precedent, we are of the opinion that the order passed by Assessing Officer is neither erroneous nor prejudicial to the interest of the revenue and therefore the order passed by the Ld. CIT u/s 263 of the Act cannot survive.

So far as merits of the case is concerned in respect of the claim u/s 54F of the Act, the Hon’ble Delhi High Court has considered this issue in the case of Balraj Vs. CIT (2001 (12) TMI 51 - DELHI High Court ) and observed that for claiming benefit u/s 54F of the .....

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ove case and we hold that the Assessing Officer on merits has allowed the case u/s 54F of the Act in accordance with law. This cannot be a case for revision u/s 263 of the Act. - Decided in favour of assessee - I.T.A.No.350/Vizag/2013 - Dated:- 18-11-2015 - SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER For The Appellant : Shri C. Subrahmanyam, AR For The Respondent : Shri Ch. Omkareswar, DR ORDER ORDER PER V. DURGA RAO, Judicial Member: This appeal is filed by the .....

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Thereafter, the Ld. CIT while exercising the power u/s 263 of the Act, issued a show cause notice to the assessee dated 18.2.2013 on the ground that the assessment order passed by the Assessing Officer was erroneous and prejudicial to the interest of the revenue and show caused to the assessee why the order passed by the Assessing Officer cannot be reversed. In response to the show cause notice issued by the Ld. CIT, the assessee has submitted a detailed reply dated 7.3.2013. The Ld. CIT after c .....

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nue. 4. In so far as the claim of the assessee in respect of u/s 54F of the Act, the Ld. CIT has observed that the assessee neither purchased the property nor constructed residential house property from the capital gain accrued from the sale of the capital asset. The assessee has only contributed money for the construction of the house and the land owned by his father. Therefore, the assessee is not eligible for the benefit u/s 54F of the Act and directed the Assessing Officer to revise his orde .....

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sessing Officer cannot be said that it is erroneous and prejudicial to the interest of the revenue. He further submitted that the assessee has received sale consideration on 18.6.2007 through a cheque and subsequently through a GPA dt.9.7.2007 the property was sold to the purchaser and the purchaser of the property got registered on 29.8.2007 and submitted that when assessee already received the amount and signed the GPA and transferred his entire rights to the purchaser, the transfer was conclu .....

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s and also considering the explanation of the assessee passed an order, it cannot be said that the order of the Assessing Officer is erroneous or prejudicial to the interest of the revenue. 6. In so far as the claim of assessee in respect of u/s 54F of the Act is concerned, the assessee sold the property and the same was invested for the construction of the house on the land belonging to assessee s father and assessee is also having a 1/3rd share of the property as per the partition deed. He rel .....

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interest of the revenue. The Ld. D.R. has submitted that the assessing officer without making any enquiry and also not applying the mind passed the assessment order. Therefore, the order passed by the A.O. is erroneous and prejudicial to the interest of the revenue. To support his argument, he relied on the judgements in the case of Rampyari Devi Saraogi Vs. CIT 67 ITR 84 (SC) & 341 ITR 434 in the case of CIT Vs. Jawahar Bhattacharjee. The Ld. DR stated that the assessing officer has not mad .....

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, perused the records and gone through the orders of the authorities below. The assessee is a nonresident individual filed a return of income by declaring nil income. The return filed by the assessee was processed u/s 143(1) of the Act and after due process, the assessing officer completed the assessment u/s 143(3) of the Act. The assessing officer in the assessment order has observed that on verification of the record, it was found that the assessee has purchased an agricultural land at Rajahmu .....

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ct. We find that the assessing officer after calling the details such as the property which was originally purchased by the assessee and also subsequently sold to the purchaser on 9.7.2007 through a GPA. The Assessing Officer also examined the sale consideration of ₹ 60 lakhs and market value as on date of 9.7.2007 was ₹ 1,59,72,000/- and accordingly capital gains was calculated. The objection of the Ld. CIT is that as on the date of the registration i.e. 29.8.2007 the market value o .....

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4 for an amount of ₹ 60 lakhs from the purchaser and GPA was executed in favour of the purchaser on 9.7.2007 and as on the date of execution of GPA, the market value of the property was ₹ 1,59,72,000/- and accordingly Assessing Officer came to a conclusion that the market value of the property is ₹ 1,59,72,000/-. Subsequently, the purchaser registered the property in his name on 29.8.2007, the market value of the property is ₹ 2,17,80,000/-. In our opinion, once assessee .....

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red in favour of the purchaser is not a material for the purpose of value of the property in the hands of the assessee. Hence, we find that the order passed by the Assessing Officer is neither erroneous nor prejudicial to the interest of the revenue. The order passed by the Ld. CIT on this count cannot stand. Even otherwise, the assessing officer after examining all the details of the property i.e. when the assessee originally purchased the property and the subsequent sale consideration, the mar .....

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d Jewellers 259 ITR 502 (Guj) Assessing Officer having made an assessment after considering relevant material and the explanation offered by the assessee in pursuance of the notice issued u/s 143(1) of the Act as well as u/s 143(2) of the Act action u/s 263 of the Act was not justified merely because a different view was possible appraisal of the material produced by the assessee. In the case of CIT Vs. S. Venkata Reddy (supra), the Hyderabad bench of the Tribunal has held that as per section 2( .....

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l High Court in the case of CIT Vs. Anand Food Products (supra) has observed that during the assessment proceedings the assessing officer had not only taken into account all the details but also disallowed some expenditure and made addition whenever same was required. A decision of the Assessing Officer could not be prejudicial to the interest of the revenue simply because it did not make detailed discussion and upheld the order passed by the Tribunal. Keeping in view of the above judicial prece .....

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994 (3) ₹ 1,37,700/- on 17.8.1994 vide document no.5441/1994 (4) ₹ 93,450/- on 18.8.194 vide document no.5507/1994. The assessee sold all the properties on 18.6.2007 vide document no.6542/2007 for a sale consideration of ₹ 80,91,000/-. The sale consideration has been invested by the assessee in a house property situated at Banjara Hills, Hyderabad value at ₹ 2,73,87,000/- by registered valuer which is standing in the name of the assessee and two other persons i.e. K. Penc .....

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ee is not a legal owner of the property and therefore not entitled for the benefit u/s 54F of the Act. We find that the assessing officer after examining all the details of the properties which Assessee was purchased earlier and sold subsequently and received consideration was invested on the property which i.e. in the name of his father Shri S. Penchala Naidu and claimed benefit u/s 54F of the Act. The assessing officer after examining all the details has passed the assessment order in detailed .....

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