TMI Blog2016 (7) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessment Officer had called upon the assessee to furnish various details including the details of fixed assets and details of sale of land . Thus, details the assessee had provided under a communication made in October, 2012 in which he had provided details of fixed assets and details of sale of land. Though final order of assessment was silent on this aspect, the Assessing Officer had carried out inquiries about the nature of sale of land and about the validity of the assessee's claim of deduction under section 54F of the Act. Learned counsel for the Revenue however submitted that these inquiries were confined to the claim of deduction under section 54F of the Act in the context of fulfilling conditions contained therein and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of allowability of deduction under section 54 of the Act to the file of Assessing Officer even through the working of allowability of deduction under section 54F is available in the order under section 263 which is not disputed by the assessee before ITAT ? (B) Whether the Tribunal is right in law and on facts in not accepting the long term capital gain treated as business income although transaction was in the nature of business in line with the past history of the assessee ? 2. The respondent assessee, for the assessment year 2010-11 had filed a return of income in which he had shown long term capital gain of ₹ 1.68 crores (rounded off) for sale of landed property situated at Sevasi, Vadodara. He had also claimed deduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal. The Tribunal by the impugned judgment allowed the assessee's appeal primarily on the ground that two views were possible and in which case, the Commissioner could not have exercised the revisional powers. By the time, the Tribunal gave this judgment, the Assessing Officer had already given effect to the revisional order passed by the Commissioner which proceedings had also travelled before the Tribunal and the Tribunal therefore set aside the order also. It is therefore that the Revenue has filed two appeals before us arising out of the same judgment of the Tribunal. 5. Having heard learned counsel for the parties and having perused documents on record, we notice that though in the order of assessment, the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of a long term capital asset other than a residential house provides as under (relevant extracts only): Capital gain on transfer of certain capital assets not to be charged in case of investment in residential house. 54F. (1) [Subject to the provisions of sub-section (4), where, in the case of an assessee being an individual or a Hindu undivided family], the capital gain arises from the transfer of any longterm capital asset, not being a residential house (hereafter in this section referred to as the original asset), and the assessee has, within a period of one year before or [two years] after the date on which the transfer took place purchased, or has within a period of three years after that date [constructed, a residentia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars of the sale of old house by investing therein the nest amount of capital gain arising from the sale or transfer of the old house. 6. It can thus be seen that though final order of assessment was silent on this aspect, the Assessing Officer had carried out inquiries about the nature of sale of land and about the validity of the assessee's claim of deduction under section 54F of the Act. Learned counsel for the Revenue however submitted that these inquiries were confined to the claim of deduction under section 54F of the Act in the context of fulfilling conditions contained therein and may possibly have no relevance to the question whether the sale of land gave rise to a long term capital gain. Looking to the tenor of queries by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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