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2016 (2) TMI 90

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..... tirely in the purchase of flat in his name within the time period given in section 54F, then assessee is eligible for exemption u/s 54F from such LTCG. Ld. CIT has not disputed this contention of the assessee raised before him, but has simply set aside the assessment to the AO to examine it afresh. Such an exercise by the CIT cannot be appreciated, firstly, he should give specific finding as to why such a contention raised by the assessee is not correct or divorced from the facts and material records and secondly, how on the facts the order of the AO is actually erroneous and also prejudicial to the interest of the revenue. Simply mentioning the phrase in the order that the “assessment order is erroneous and so far as it is prejudicial to t .....

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..... 22.10.2009 on which there was a net long-term-capital-gain of ₹ 17,52,396/-. The aggregate of such long-term-capital-gain was at ₹ 47,27,401/- which was claimed as exempt on account of investment made in purchase of a residential property. The facts qua the issue are that the assessee had executed an agreement for purchase of a residential property from Dosti Group on 06.05.2009 for a consideration of ₹ 1,09,25,395/- which was registered on 18.05.2009. Similarly, the assessee had made another agreement which was executed on 31.03.2010 for purchase of flat at Hiranandani Maitry Park for a consideration of ₹ 1,72,00,000/-. The Ld. CIT in the show cause observed that, assessee has not specifically stated the name of th .....

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..... ries raised during the course of the assessment proceedings from time to time. Apart from that, the assessee had also annexed all the documents whereby, the assessee had submitted the details along with the reply relating to the capital gains which has been tabulated by the assessee in the following manner:- 4. Thus, it was submitted that, there has been proper application of mind by the AO and, therefore, it cannot be held that impugned assessment order passed by the AO is without any application of mind or is erroneous. It was further submitted that, the assessee had purchased the property at Dosti on 06.05.2009 which was registered on 18.05.2009 for a consideration of ₹ 1,09,25,395/- against which exemption u/s 54/54F was c .....

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..... it cannot be said that impugned assessment order has been passed without application of mind or enquiry. On this ground alone, he submitted that order passed by the CIT u/s 263 cannot be sustained. He further submitted that, the assessee has claimed exemption only on the flat purchase at Dosti which was done in the month of May, 2009 and the other property the assessee had only given advance in which he held the property in the joint ownership with his mother, in any case, the sale of shares was done on 30.05.2009 and assessee had purchased the property on 18.05.2009 and hence the assessee was liable for exemption u/s 54F. Thus, the assessee had rightly claimed the exemption u/s 54F and accordingly, order passed by the AO allowing such exem .....

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..... ourse to section 263. First of all we will examined whether the assessment order was erroneous or not. From the perusal of the records as has been placed before us, it is seen that the AO vide questionnaire issued on 13.07.2012 along with the notice u/s 142(1) had required the assessee to first give the details of computation of long term capital gain with item-wise and datewise. Secondly, he asked for details of purchases and sale of investments made in the moveable as well as in immovable properties. In response to the said notice, the assessee had filed the requisite details of LTCG and also the details where such gains were invested. Then again, vide notice dated 15.10.2011, the AO further required the assessee to submit the details of .....

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..... the AO have also been placed in the paper book. If from the records, it is found that, the AO has raised specific query, which has been responded to by the assessee by furnishing the details and documentary evidence, then presumption is that, AO has duly applied his mind on the issue involved and even if such an issue does not find mention in the assessment order, then also it cannot lead to a conclusion that order has been passed by the AO without application of mind. On these facts, it cannot be held that the order passed by the AO accepting the assessee s claim is erroneous at all. 9. Now whether it is prejudicial to the interest of revenue or not. Before the Ld. CIT as well as before us the assessee had duly demonstrated that the as .....

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