TMI Blog2013 (9) TMI 1140X X X X Extracts X X X X X X X X Extracts X X X X ..... aims are concerned but before allowing the claim the factual correctness of claim has to be ascertained. It is clear from the details recorded by the CIT(A) that even only a part of capital gain has been invested in the new asset which has been fully allow without considering the proportion of the net consideration/sale proceed to the investment in the new asset. Therefore, we are of the view that the CIT(A) is not justified in allowing the claim without giving an opportunity to the AO to examine the correctness of the claims. Accordingly, we set aside the order of the CIT(A) and remand the matter to the record of the Assessing Officer to consider and decide both fresh claims of the assessee as per law. Needless to say the assessee be give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Goetze India Ltd. vs. CIT 284 ITR . 3. The assessee derived income from House Property, Salary, Long Term Capital Gain, Short Term Capital Gain and income from other sources. During the assessment proceedings the assessee submitted that in the return of income the assessee failed to consider long term capital loss of ₹ 22,67,562/- suffered due to extinguishment of rights in respect of 24767 shares of Naranja Tech Ltd. a defunct company. Since this has not been claimed in the return of income the AO has not considered this claim. Similarly, during the assessment proceedings the assessee also claimed that a mistake has crept in computation of capital gains in the return of income regarding the claim of exemption u/s 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). The Ld. AR has also relied upon the decision of Hon'ble Jurisdiction High Court in case of CIT Vs Pruthvi Brokers and Shareholders Pvt. Ltd. 349 ITR 336 as well as decision of this Tribunal in case of Givaudan Flavours (India) Pvt. Ltd. Vs DCIT 56 SOT 105 and submitted that the claim of the assessee is covered by the decisions of Hon'ble Jurisdiction High Court as well as this Tribunal. 6. Having considered the rival submissions and carefully perusal of the record we note that undisputedly the assessee did not claim the loss on account of extinguishment of rights in respect of the shares of a defunct company namely Naranja Tech Ltd. as well as the claim u/s 54F in respect of capital gain on sale of shares of Ambience Publicis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee without examination of the correctness of the claim. There is no quarrel as far as the legal aspect of the claims are concerned but before allowing the claim the factual correctness of claim has to be ascertained. It is apparent from the findings of the CIT(A) that while allowing the claim u/s 54F the amount of capital gain and invest in purchase of residential house has been taken into consideration without considering the total sale consideration and proportion of the sale consideration invested in the house property. The exemption u/s 54F is available in respect of capital gain in proportion of the cost of new asset bears to the net consideration of transfer/sale of asset giving rise to the capital gain. It is clear from the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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