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S.S.M. Ahmed Hussain and others Versus Income-Tax Officer

2016 (6) TMI 798 - ITAT CHENNAI

Penalty u/s 271(1)(c) - taxability of income from sale of land - as per revenue income earned from sale of land is liable to be taxed and the assessee has not entitled for deduction under section 54B - Held that:- The assessee had a bona fide belief that M/s. Alpha Commercials, according to the mutual agreement, invested the money in residential property so as to facilitate the assessee to have a benefit under section 54F/54B of the Act. However, the Assessing Officer has not considered the expl .....

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ioner of Income-tax (Appeals) examined the claim of the assessee that whether the assessee has given money to M/s. Alpha Commercials for the purpose of investment in residential property. The Assessing Officer observed that just because the assessee has remitted the demand raised by the Department, it cannot be a reason for levying the penalty. However, he has not found the claim of the assessee that the assessee has handed over the money to M/s. Alpha Commercial for investment in residential pr .....

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anation before the Assessing Officer. Thereafter, it is the duty of the Assessing Officer to establish that the assessee has concealed income or furnished inaccurate particulars of income. In the present case, the Assessing Officer has accepted the amount offered by the assessee as his income and levied penalty without making any enquires and investigation to disprove that the explanation given by the assessee is either false or bona fide. Therefore, in our opinion, the penalty cannot be levied .....

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the assessment year 2010-11. ITA Nos. 245, 246, 247, 248, 249, 250, 253, 255/Mds/2016 In these appeals, the issue is with regard to sustaining the addition by the Commissioner of Income-tax (Appeals). ITA Nos. 237, 238, 239, 240, 241, 242, 243, 244 and 251/Mds/2016 In these appeals, the issue is with regard to levy of penalty under section 271(1)(c) of the Income-tax Act, 1961. Since the issues are common, we consider the facts narrated in ITA Nos. 253 and 237/Mds/2016 for the purpose of adjudic .....

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he statement of income filed with the return of income for the assessment year 2010-11, the assessee had admitted the sale of agricultural land at Neelankarai for ₹ 2,19,69,043 and claimed an exemption of ₹ 1,90,00,000 under section 54B of the Act towards the investment in the purchase of agriculture land at Mahabalipuram. Subsequently, a combined survey under section 133A was conducted in the case of Shri Ameerdeen of M/s. Alpha Commercials and the group of cases on September 13, 20 .....

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from the above facts that the income chargeable to tax under the head "Capital gains" had escaped assessment. Accordingly, the Assessing Officer issued a notice under section 148 of the Act to the assessee on October 25, 2012. In response to the notice under section 148, the assessee filed a return income for the assessment year 2010-11 on December 27, 2012, admitting an income ₹ 7,31,554 (excluding the capital gains of ₹ 1,90,27,203) after withdrawing the earlier deduction .....

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on March 8, 2014. 3.3 During the course of the reassessment proceedings and the penalty proceedings, the learned authorised representative furnished a letter dated August 12, 2014, which reads as follows : "Out of the sale consideration, the assessee has instructed M/s. Alpha Commercials to pay the money to the seller of the agricultural land at Mahabalipuram and claimed exemption under section 54B of the Act being part performance of the contract. As the said Alpha Commercials has used the .....

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y when the sworn statement of Shri Ameerdeen was recorded during the course of survey operations conducted at the business premises of M/s. Alpha Commercials, which otherwise would have escaped the assessment. Accordingly, the Assessing Officer observed that the claims made by the assessee, firstly, with regard to the issue of agricultural land at the first instance and, secondly, regarding the investment in the agriculture land for the claim of deduction under section 54B, were factually wrong. .....

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me and order under section 271(1)(c) was passed on September 26, 2014, by levying a penalty of ₹ 39,13,426. The assessee went in appeal before the Commissioner of Income-tax (Appeals) challenging the quantum addition. 4. In this case, there was a delay of 175 days in filing all these appeals before the Commissioner of Income-tax (Appeals). The assessee filed a condonation petition before the Commissioner of Income-tax (Appeals) stating as follows : "The assessment order for the assess .....

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the assessee admitted his/his ignorance of law inasmuch as the said ignorance should construed in both ways consequent to the interpretation of said provisions in the Act to the factual matrix of the case. The assessee, therefore, had remitted the taxes quantified in the re-assessment order and wanted to purchase peace with the Depart ment ignoring the professional advice received on the wrong order passed which was based on the inadmissible evidence of sworn state ment recorded in the survey pr .....

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ith the penalty proceedings in September, 2014, the assessee was informed about the invalid order passed by the Assessing Officer on reopening the proceedings of 147 of the Act for the assessment year 2010-11 based on the sworn statement recorded at the time of survey and the said mistake in not challenging the reassessment order under consideration was realised in the presentation of the appeal belatedly today along with this petition for condonation of delay. In view of the legal complexities .....

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t appeal, before him, against the reassessment order dated March 8, 2014, within the stipulated period of 30 days from the receipt of the impugned order and rejected the condonation petition and decided the issue on the merits. Against this, the assessee is in appeal before us. 5. As seen from the condonation petition filed by the assessee before the Commissioner of Income-tax (Appeals), the main contention of the assessee's counsel is that due to wrong professional advice and as per the bon .....

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order dated March 8, 2014, was delivered on August 12, 2014. The assessee was of the opinion that the Assessing Officer would not levy penalty in this case. However, the Assessing Officer has given a fresh opportunity of hearing to the assessee on September 25, 2014, wherein the assessee's representative requested the Assessing Officer to drop the penalty proceedings since the demand raised has been paid. Finally, on September 25, 2014, the assessee came to the conclusion that the Assessing .....

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or not to levy penalty so as to file the appeal in case of quantum addition. There is no legitimate or bona file belief in filing the appeal belatedly. Simply because the Assessing Officer has initiated the penalty proceedings and proposed to impose penalty under section 271(1)(c) of the Act and again, quantum addition cannot be done. The reason for not filing the appeal in time is based on his own assumptions and presumptions. The assessee cannot take away the legal right of the Assessing Offic .....

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advice. The learned Departmental representative, relied on the order of the Commissioner of Income-tax (Appeals) and submitted that the appeal of the assessee was rightly unadmitted by the Commissioner of Income-tax (Appeals). 7. We have heard both the parties and perused the material on record. In this case, the delay before the Commissioner of Income-tax (Appeals) is only 175 days in filing the appeals. The assessee filed condonation petition as narrated in earlier paragraph. The reasons state .....

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on the part of the assessee like filing of original return due to lack of professional advice. Further, it was stated that the assessee has already paid capital gains before filing the return of income. However, the Assessing Officer finalised the penalty order and it came to the notice of the assessee on the last day of hearing of penalty proceedings on September 25, 2014, that the Assessing Officer is going to levy penalty under section 271(1)(c) of the Act in these assessment years. Hence, th .....

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-tax (Appeals). The matter has to be considered in the light of human probabilities. The reason stated by the assessee in these cases is that he was waiting for the outcome of the penalty proceedings. Therefore, we have to consider, whether reasonable prudent person would do so. The inference of such delay has to be drawn on the basis of circumstances available on record and conduct of the assessee. After considering the surrounding circumstances and applying the test of human probabilities, one .....

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elay. In these cases, the issue on merit is with regard to allowability of exemption under section 54B of the Act. The assessee took a plea that sale consideration was given to M/ s. Alpha Commercials, wherein one of the co-partners of the property is a partner of that firm for the purpose of investment in agricultural land so as to avail of deduction under section 54B of the Act. Refusal to condone the delay would result in a meritorious case being thrown at the very threshold, cause of justice .....

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orious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. (3) 'Every day's delay must be explained' does not mean that pedantic approach should be made. Why not every hour's delay, every second's delay ? The doctrine must be applied in a rational, common sense and pragmatic manner. (4) When substantial justi .....

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is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 7.1 In our opinion, when substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right for injustice being done because of non-deliberate delay. In our opinion, the delay in this case is very short, i.e., 1 .....

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rdingly, the Madras High Court condoned nearly 21 years of delay in filing the appeal. When compared to 21 years of delay considered by the court, the delay of 175 days before the Commissioner of Income-tax (Appeals) in filing the appeal cannot be considered to be inordinate or excessive. 7.2 Further, the co-ordinate Bench of the Tribunal, Chennai in the case of People Education and Economic Development Society (PEEDS) v. ITO [2006] 100 ITD 87; [2008] 296 ITR (AT) 36 (Chennai) (Third Member) con .....

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cing substantial justice is of prime importance and the expression "sufficient cause" should receive a liberal construction. Therefore, this judgment of the Madras High Court says that in order to advance substantial justice, which is of prime important, the expression "sufficient cause" should receive a liberal construction. In these cases, in our opinion, the short delay of 175 days is on account of bona fide belief by the assessee that the Assessing Officer should not levy .....

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v. Smt. Sudha Rani Debi, AIR 1978 SC 537, since the condonation of delay is the discretion of this court and it would depend on each case. In our opinion, when there is sufficient cause for not filing the appeal within the period of limitation, the delay has to be condoned and if we do not condone the delay, it would amount to legalise an illegal order and it is appropriate to exercise the power with the intention that this Tribunal would deliver justice rather than legalise injustice on technic .....

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mmissioner of Income-tax (Appeals) on the merits in that order. Accordingly, this issue is allowed for statistical purposes. In the result, the appeals in ITA Nos. 253, 248, 249, 246, 255, 245, 247, 250/Mds/2016 are allowed for statistical purposes. 9. In ITA No. 237/Mds/2016, the grievance of the assessee is with regard to levy of penalty under section 271(1)(c) of the Act. 10. The facts of the case are that the assessee, an individual is having income from business, capital gains and other sou .....

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ed survey under section 133A was conducted in the case of one Shri Ameerdeen of M/s. Alpha Commercials and the group of cases on September 13, 2012. In the sworn statement of Shri Ameerdeen, he stated that he himself and his family members (13 co-owners) together had sold a land situated at Neelankarai to M/s. Kannammal Educational Trust and admitted that the land sold was an urban land only and no agricultural activities were carried out on the said land. The assessee, Shri S. S. M. Ahmed Hussa .....

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, admitting an income of ₹ 7,31,554 (excluding capital gains of ₹ 1,90,27,203) after withdrawing the earlier deduction claimed under section 54B at ₹ 1,90,00,000 and paid the taxes on the declared such capital gains. The reassessment was completed in determining the total income of ₹ 1,96,98,760 (including long-term capital gains of ₹ 1,90,27,203 on March 8, 2014. 10.2 The penalty proceedings of the Act for furnishing inaccurate particulars of income and for conceal .....

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f combined survey operations conducted at the business premises of Shri Ameerdeen, it was stated by him that no agricultural activity was carried out at the Neelankarai land and the land was only an urban land. Therefore, the assessee's claim of exemption under section 54B of the Act was wrong. (iii) Further, the assessee neither invested the amount of sale consideration of impugned land in the purchase of agricultural lands nor did he deposit in the Capital Gains Account Scheme, within the .....

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B of the Act being part performance of the contract. As the said Alpha Commercials has used the money for the business purposes and has not paid the money as per the agreement." 10.3 From the above, it was noticed by the Assessing Officer that the assessee had not actually either invested the amount in the purchase of the property or invested in the Capital Gains Account Scheme within the stipulated time as provided under the Act. Further, it was observed by the Assessing Officer that the c .....

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raised on account of the capital gains was paid by the assessee. However, it was held by the Assessing Officer that the penalty proceedings could not be dropped just because the assessee had remitted the demand raised by the Department. Further, it was also observed by the Assessing Officer that the act of withdrawal of exemption by the assessee was not voluntary and the same was under taken only after the action under section 133A of the Act in one of the business premises of Shri Ameerdeen, o .....

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per cent. of the tax sought to be evaded which worked out at ₹ 39,13,426. Aggrieved, the assessee went in appeal before the Commissioner of Income-tax (Appeals). 11. The Commissioner of Income-tax (Appeals) observed that the original return of income for the assessment year 2010-11 was filed on March 29, 2012, which was filed beyond the due date for filing of return of income as stipulated under section 139(1) of the Act. The return of income filed on December 27, 2012, in response to not .....

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ction 143(3) read with section 147 of the Act dated March 8, 2014, for the assessment year 2010-11 in the case of the assessee, it is revealed that a survey operation was carried out in the case of the firm M/s. Alpha Commercials at Jhaver Plaza, No. 1, Nungambakkam High Road, Chennai-34, on September 13, 2012. Shri Ameerdeen, who is the managing partner of the said firm, had admitted in his sworn statement that the land at Neelankarai was sold to M/s. Kannammal Educational Trust by 13 co-owners .....

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pha Commercials and he is also one of the 13 co-owners of the impugned land at Neelankarai which was sold to M/s. Kannammal Educational Trust. 11.2 Consequent to the survey under section 133A, the return of income filed by the assessee, vide acknowledgment No. 001524 was perused by the Assessing Officer and it was noticed that the assessee had claimed the impugned land as agricultural land and claimed exemption from capital gains under section 54B of the Act. Hence, there was a reason to believe .....

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income, the assessee had disclosed the capital gain separately amounting to ₹ 1,90,27,203 and paid taxes thereon. 11.3 Further, the Commissioner of Income-tax (Appeals) observed that the income for the assessment year 2010-11 was assessed at ₹ 1,96,98,760. The penalty proceedings under section 271(1)(c) were also initiated separately for concealment of particulars of income and for furnishing inaccurate particulars of income. The Commissioner of Income- tax (Appeals) further observed .....

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mmercials, for the business purposes and had not paid the money to the seller of the agricultural land. 11.4 The Commissioner of Income-tax (Appeals) is also noticed from the above that the capital gains arising out of the sale proceeds of the impugned land at Neelankarai came to the notice of the Department from the sworn statement of Shri Ameerdeen recorded during the course of survey operation under section 133A in the case of M/s. Alpha Commercials. Therefore, the contention of the assessee .....

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ad treated the impugned land as agricultural land knowing fully the fact that the same was not an agricultural land and neither any agricultural activities were being carried out on the said land. Had there not been a survey in the business premises of M/s. Alpha Commercials, this true fact would never have been detected. Therefore, the element of voluntary disclosure, as claimed by the assessee, is missing in this entire process which would come to the rescue of the assessee. 11.5 According to .....

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Commissioner of Income-tax (Appeals), further observed that the instant penalty order was passed on September 26, 2014, and the letter from the assessee to the Assessing Officer pleading for drop ping of the penalty proceedings on the grounds that he has preferred appeal before the Commissioner of Income-tax (Appeals) is also dated September 26, 2014. The appeal against the reassessment order dated March 8, 2014, in the instant case before the Commissioner of Income-tax (Appeals) is also dated .....

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reassessment order for the assessment year 2010-11 filed by the asses see before the Commissioner of Income-tax (Appeals) was considered and after taking into account all the relevant facts and circumstances, it was finally rejected being devoid of any merit and bona fide character. Moreover, the appeal of the assessee against the reassessment order dated March 8, 2014, for the assessment year 2010-11 also stands dismissed on the merits of the case as well. 11.6 According to the Commissioner of .....

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ssment proceedings and also during the penalty proceedings. Moreover, these issues have been thoroughly analysed during the appellate proceedings as well. Accordingly, he observed that the act of withdrawal of exemption by the assessee in the return of income filed in response to the notice under section 148 was not a voluntary one and has been undertaken only after the Department's action under section 133A in the case of M/s. Alpha Commercials. In support of his findings, the Commissioner .....

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he Assessing Officer erred to appreciate that the provisions of section 271(1)(c) of the Act had no application to the facts of the case and ought to have appreciated that rejection of the claim under section 54B of the Act in the computation of long-term capital gains which formed part of the original return of income but not automatically lead to the conclusion on the concealment of income for furnishing inaccurate particulars of income, thereby vitiating the action in imposing such penalty. 1 .....

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failed to appreciate that the claim of deduction under section 54B of the Act on the facts and in the circumstances of the case was correct and proper and ought to have appreciated that the surrender of such claim in the survey was not sacrosanct and not relevant for the purpose of the provisions governing the levy of penalty under consideration. 12.2 The learned authorised representative, further submitted that the Assessing Officer failed to appreciate that the details of objections filed on .....

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, Chennai in the original return of income filed and ought to have appreciated that in the absence of suppression of the material facts relating to the transaction, the levy of penalty in relation thereto was wrong, erroneous, unjustified, incorrect and not sustainable in law and the order of the assessment has not reached finality and ought to have appreciated that the appeal against the reassessment order is pending for decision before the first appellate authority. The Assessing Officer faile .....

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e proceedings, the assessee furnished further written submissions on December 22, 2015, reiterating the earlier stand taken before the Assessing Officer during the penalty proceedings. The assessee has reiterated that he had voluntarily and truly offered the full amount received as sale consideration as per sale agreement as income for capital gain purposes in the assessment year 2010-11 and, therefore, his intention was true and honest. The assessee has also pleaded that even though the capital .....

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utual agreement to maintain good relationship with the Department and to purchase peace and to settle the matter amicably. Therefore, it was submitted by the assessee's counsel that there was no concealment of any particulars of income which attracted the penalty proceedings under section 271(1)(c) of the Act. 12.5 Further, the learned authorised representative, relied on the following judgments : (i) CIT v. Reliance Petroproducts Pvt. Ltd. [2010] 322 ITR 158 (SC) ; (ii) CIT v. Cholamandalam .....

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tax (Appeals). 14. We have heard both the parties and perused the material on record. Under the provisions of section 271(1)(c) of the Act, the Income-tax Officer can exercise his jurisdiction to make an order by way of penalty ; he has to be satisfied that the assessee has concealed the particulars of his income or furnishing of inaccurate particulars of such income. In the present case, the charge against the assessee is that he had concealed the particulars of income that he has received inco .....

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on in the earlier paragraph while adjudicating the quantum addition. The findings in those proceedings are not binding the proceedings relating to penalty. The penalty proceedings are independent from the assessment proceedings and it is not the continuation of assessment proceedings. In the penalty proceedings, the Assessing Officer has to be satisfied that the assessee has concealed the particulars of his income or furnished inaccurate particulars of such income. In other words, it must be, at .....

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h that the receipt constituted as an income in the hands of the assessee in the relevant assessment year and the assessee deliberately concealed and furnished inaccurate particulars of income. Further, in the penalty proceedings, in cases, if the assessee able to place any other evidence, which was not placed before the Assessing Officer at the time of assessment, it is open to the Assessing Officer to come to a different conclusion. It is also open to the Tribunal to come to a different conclus .....

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n of facts and circumstances of the case, regarding the concealment of income or furnishing of inaccurate particulars of income can adjudicate the penalty proceedings independently, as held by the Bombay High Court in the case of CIT v. Balraj Sahani [1979] 119 ITR 36 (Bom). 16. Now, coming to the issue of levy of penalty under section 271(1)(c) of the Act, it is to be seen that the assessee filed his original return of income for the assessment year 2010-11 on March 29, 2012, wherein the assess .....

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nd admitted that the land sold was an urban land only and no agricultural activities were carried out on the said land and the assessee, herein is one such co-owner of the property. Later, a notice under section 148 was issued on November 27, 2012. In response to the notice, the assessee filed a revised return on December 27, 2012, declaring an income of ₹ 11,64,684 what is declared in the original return and also disclosed capital gains of ₹ 75,25,896, after withdrawing the deductio .....

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laimed wrong deduction under section 54B of the Act. Before the Assessing Officer, it was given an explanation regarding this claim that out of the sale consideration, the assessee has instructed M/s. Alpha Commercials to pay the money to the seller of the residential property. Hence, the assessee has claimed exemption under section 54F of the Act being part performance of the contract and the said Alpha Commercials has used the money for the business purposes and has not paid the money as per t .....

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assessee was not accepted by the Assessing Officer as well as by the Commissioner of Income-tax (Appeals). We find that the Assessing Officer failed to understand that the assessee has originally disclosed the details of receipts from sale of property at Neelankarai and also claimed deduction under section54F/54B of the Act, and it is also not disputed that the assessee has paid the money to M/s. Alpha Commercials, where one of the co-owners of the property was a partner therein. The assessee h .....

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According to the Assessing Officer, had it been there is no survey, the assessee's claim would have been gone unnoticed. However, it is not the case of the Assessing Officer that the assessee's claim was false or bogus. Neither the Assessing Officer nor the Commissioner of Income-tax (Appeals) examined the claim of the assessee that whether the assessee has given money to M/s. Alpha Commercials for the purpose of investment in residential property. The Assessing Officer observed that jus .....

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