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2017 (2) TMI 455 - DELHI HIGH COURT

2017 (2) TMI 455 - DELHI HIGH COURT - TMI - Revision u/s 264 - whether benefit of Section 54F could be granted when it was originally not claimed during the assessment proceedings - Held that:- Unless there is a direct impediment to the power under Section 264 (exercisable by the Commissioner) which inhibits the grant of relief, it is per se admissible. The impediment may be in the form of a substantive provision which might place a time limit, to the grant of such relief or it may be otherwise. .....

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was whether in the absence of the assessee’s claiming relief under Section 54F either in the original return or even in the revised return, it could be granted in revision. The Court unequivocally held that it could be granted. - In view of the above discussion, we are of the opinion that the petition has to succeed. The matter is remitted to the AO for consideration who shall take into account the petitioner’s claim preferred by it in its revision petition and having regard to the provisio .....

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4 of the Income Tax Act, 1961 for the benefit of Section 54F of the Income Tax Act, 1961 could be granted when it was originally not claimed during the assessment proceedings. The assessee for assessment year 2009-10 had claimed a set off of capital gains from sale towards house property as against capital losses and the loss in respect of shares. The set off was not permitted. In the meanwhile, the assessee had purchased new property, apparently with the intention of seeking the benefit under S .....

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ssioner rejected the assessee s revision petition observing as follows: - As regards the contention of the assessee with regard to share trading loss, the order of AO is quite speaking and no interference is required by this office. Further, after going through the record, it is found that no documentary evidences whatsoever were filed by the assessee during the course of assessment proceedings with regard to cost of improvement made by him in AY 1997-98 in Ramesh Park Property. The assessee has .....

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. Further, it has also never been raised by him during the course of assessment proceedings. However, deduction u/s 54F can be claimed if the long term asset sold is other than residential house property. The property sold is residential with commercial license and in my view not eligible for deduction u/s 54F. Moreover, the decision of the Hon ble Supreme Court in the case of Goetze (India) Ltd. v. CIT (2006), 284 ITR 323 (SC), also goes against the assessee. Dr. Rakesh Gupta, learned counsel f .....

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6 ITR 165 Guj. It was highlighted that the Jammu & Kashmir High Court s decision was in the specific context of omission by the assessee to claim the Section 54F benefit at the time the original return was filed. It was also argued that the reasoning of the CIT (A) that the judgment in Goetze (India) Ltd. (2006), 284 ITR 323 (SC) applied is erroneous. Mr. Rahul Chaudhary, learned counsel for the Revenue submitted that the revisional power is narrower than the appellate power as is evident fr .....

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rative part states that the Commissioner the [Principal Commissioner or] Commissioner may, either of his own motion or on an application by the assessee for revision, call for the record of any proceeding under this Act in which any such order has been passed and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit. The phraseology adopted by the provision i .....

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