GST Helpdesk   Subscription   Demo   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2016 (3) TMI 88 - ITAT VISAKHAPATNAM

2016 (3) TMI 88 - ITAT VISAKHAPATNAM - TMI - Revision u/s 263 - whether exemption u/s 54F of the Act can be denied for the assessment year 2009-10, for failure to construct the property within the period of 3 years from the date of sale of original asset? - Held that:- On careful consideration of the provisions of section 54F of the Act, it is abundantly clear that sub section 4 of section 54F of the Act, provides for, where the assessee has not utilized the full value of consideration for purch .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

riginal asset, then the assessee is required to pay the tax on the whole capital gain in the previous year in which the period of 3 years from the date of transfer of the original asset expires. In the present case on hand, on perusal of the facts, it is clear that the assessee has purchased another residential site within a period of 3 years and the balance amount was also invested under capital gain deposit account scheme.

If there is inadequate enquiry, that would not by itself giv .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

interest of the revenue, as the issue of exemption u/s 54F of the Act claimed by the assessee was in accordance with law. Therefore, we are of the opinion that the CIT without any justification assumed the jurisdiction to revise the assessment order which is not permissible under the law. - Decided in favour of assessee - I.T.A.No.268/Vizag/2014 - Dated:- 22-1-2016 - SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER For The Appellant by : Sri S. Rama Rao, AR For The R .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he assessment year 2009-10 on 29.9.2009 declaring a total income of ₹ 5,41,680/-. The case was selected for scrutiny and accordingly notice u/s 143(2) & 142(1) of the Act were issued. In response to notice, the assessee s authorized representative appeared from time to time and furnished the information called for along with books of accounts, bills and vouchers. During the course of assessment proceedings, the A.O. noticed that the assessee has sold a property and computed capital gai .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

cepted the claim of exemption u/s 54F of the Act and completed the assessment. 3. The CIT, Rajahmundry issued a show cause notice u/s 263 of the Act dated 28.11.2013 and proposed to revise the assessment order. The CIT proposed to revise the assessment order for the reason that on examination of the assessment record, certain omissions and commissions were noticed, which rendered the assessment order erroneous, in so far as it is prejudicial to the interest of the revenue, in terms of section 26 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

us in so far as it is prejudicial to the interest of the revenue, on these counts. Therefore, issued a show cause notice and asked as to why the order should not be revised u/s 263 of the Act. 4. In response to show cause notice, the assessee has filed written submissions vide her letter dated 19.12.2015 and contended that the order passed by the A.O. is not erroneous in so far as it is prejudicial to the interest of the revenue, as the A.O. has verified all the issues at the time of assessment .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in capital gain deposit scheme, before the due date of furnishing the return of income u/s 139(1) of the Act. Therefore, the claim made by her u/s 54F of the Act was correct and which was verified by the A.O. at the time of assessment proceedings. The assessee further submitted that though she made investment in capital gain deposit scheme, because of unforeseen reasons she could not complete the construction of the house property within the specified period allowed under the Act. She further su .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

order needs to be revised u/s 263 of the Act. Accordingly, the CIT revised the assessment order u/s 263 of the Act and directed the A.O. to pass consequential order within the time allowed and after giving opportunity of being heard to the assessee. Aggrieved by the CIT order, the assessee is in appeal before us. 7. The authorized representative of the assessee submitted that the assessment order is not erroneous in so far as it is prejudicial to the interest of the revenue, as the A.O. has made .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f the Act. Therefore, it is abundantly clear that the CIT has revised the assessment order purely on suspicious and surmises, without being any valid reasons. 8. The A.R. further submitted that as far as the issue of exemption u/s 54F of the Act is concerned, the A.O. has examined the issue and called for the details of reinvestment made in purchase of residential site and also the amount deposited under capital gain deposit scheme. The A.R. further submitted that the assessee has sold a propert .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he Act, therefore, offered the entire capital gain for taxation for the assessment year 2012-13. The A.R. further submitted that this fact clearly indicates that there is no loss of revenue, to brand the assessment order as prejudicial to the interest of revenue. Therefore, for the same reasons, the CIT was not correct in directing the A.O. to redo the assessment. On the other hand, the Ld. D.R. strongly supported the order of CIT. 9. We have heard both the parties, perused the materials availab .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e issued by the CIT, assessment order and paper book filed by the assessee, we find that all the issues questioned by the CIT in the revision proceedings, were already examined by the A.O. at the time of assessment proceedings. Therefore, the CIT is not correct in observing that the A.O. did not conduct proper enquiry on the issues before completion of assessment. 10. The CIT assumed the jurisdiction to revise the assessment order on the sole ground that there is a lack of enquiry on the part of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ration for purchase of land and the construction was not completed within the time allowed u/s 54F of the Act, therefore, she is not eligible for exemption for the assessment year 2009-10. The contention of the assessee was that the A.O. has rightly allowed the exemption u/s 54F of the Act, as she has complied with the provisions of section 54F of the Act by reinvesting the sale consideration in purchase of another residential site and deposited the unutilized sale consideration in capital gain .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

new asset within the period specified in sub-section (1), then,- (i) the amount by which- a. the amount of capital gain arising from the transfer of the original asset not charged under section 45 on the basis of the cost of the new asset as provided in clause (a) or, as the case may be, clause (b) of sub-section (1), exceeds b. the amount that would not have been so charged had the amount actually utilized by the assessee for the purchase or construction of the new asset within the period speci .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sessee has not utilized the full value of consideration for purchase/construction of residential house property within the due date specified u/s 139(1) of the Act, then the assessee shall invest the unutilized portion of sale consideration under the capital gain deposit scheme and furnished the proof along with return of income. The proviso to sub section 4 of section 54F of the Act provides that in case the assessee failed to utilize the amount invested under sub sec. 4 for construction of hou .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

was the contention of the assessee that she could not complete the construction of house property, because of various reasons therefore, she has offered the entire capital gain for tax for the assessment year 2012-13 and furnished the copy of return filed for the assessment year 2012-13 for having proof of offering the capital gain. On examination of the paper book filed by the assessee, we find that the assessee has offered the entire capital gain for the assessment year 2012-13. The contentio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

, from the facts it is very clear that the assessee has offered the capital gain, to tax after completion of 3 years from the date of sale of the original assets and which is in accordance with law. Therefore, we are of the opinion that the CIT was not correct in coming to the conclusion that the claim made by the assessee u/s 54F of the Act is not correct. 14. Having said that let us now examine, whether the order passed by the A.O. u/s 143(3) of the Act is erroneous in so far as it is prejudic .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

or the same reason with a different opinion. As far as the other issues which leads to revision u/s 263 of the Act is concerned, the A.O. has passed consequential order as per the directions of the CIT u/s 263 of the Act and has accepted the issues which leads to the revision. From this, it is clear that there is no reason of whatsoever for the CIT to revise the assessment order. 15. The CIT, u/s 263 of the Act has power to revise the assessment order. But, to invoke the provisions of section 26 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e the twin conditions i.e. the order is erroneous and the same is also prejudicial to the interest of the revenue are co exist. In the present case on hand, the A.O. has conducted detailed enquiry and also examined the points on which the CIT wants further verification. The assessing officer, after verification of books of accounts and relevant details furnished by the assessee, allowed the claim of assessee u/s 54F of the Act. The contention of the CIT was that the A.O. has not conducted proper .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nd, there is no reason of whatsoever for the Commissioner to revise assessment order, as on both counts i.e. the order is not erroneous as the A.O. has verified the issues and allowed the claim made by the assessee u/s 54F of the Act. The order is also not prejudicial to the interest of the revenue, as the issue of exemption u/s 54F of the Act claimed by the assessee was in accordance with law. Therefore, we are of the opinion that the CIT without any justification assumed the jurisdiction to re .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

decision in the case of CIT Vs. Sun Beam Auto Limited (2011) 332 ITR 167, held that once the A.O. examined the issues, the CIT cannot assume jurisdiction on the same issues which is already considered by the A.O., by stating that the A.O. has conducted inadequate enquiry or there is a lack of enquiry. The relevant portion is reproduced as under: 10. To invoke the provisions of section 263 of the Act, the twin conditions must be satisfied i.e. the order of the assessing officer is erroneous and .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

enue are not coexists. In the present case, the A.O. has conducted enquiry before allowing deduction towards wages and centering expenses and also examined the points on which the CIT wants further verification. The assessing officer after carefully examined the books of accounts and relevant vouchers furnished by the assessee passed the assessment order as indicated in his order, which is clearly evident from the assessment order. The contention of the CIT was that the A.O. has not conducted pr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nt order is detailed one and also, the A.O. has passed a remarks in the assessment order on two issues, on which the CIT assumed jurisdiction, i.e. disallowance of round some expenditure of ₹ 1,00,000/- under the head wages and centering charges and also partner s capital accounts, where the addition was ₹ 66,825/-.The A.O. had called for explanation and the assessee has furnished its explanation. But, the CIT was of the opinion that the assessing officer could have do well to explor .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version