TMI Blog2017 (10) TMI 631X X X X Extracts X X X X X X X X Extracts X X X X ..... urts observations/directions in this regard. The ld CIT(A)’s finding in the impugned order to the contrary; that the AO has complied with the directions of the Hon’ble High Court (Supra) in considering the assessee’s claim for exemption u/s 54 of the Act; is, in our view, not borne out from a plain reading of the order of assessment dated 27/3/2014 for asst. year 1996-97 (extracted Supra) and appears to be more a figment of his imagination based on nonexistent assumptions. In this view of the matter, we are of the considered opinion that the order of assessment for asst. year 2006- 07 passed by the AO u/s 143(3) r.w.s 260A of the Act dated 27/3/2014 is to be set aside, as evidently the AO has not followed the Hon’ble High Courts directions for consideration of the assessee’s claim for exemption u/s 54 of the Act in accordance with law and the Hon’ble courts observations in this regard. We accordingly set aside the impugned orders of the authorities below i.e of the AO/CIT(A), and remand the issue of consideration of the assessee’s claim for exemption us/ 54 of the Act to the file of the AO for fresh consideration and to pass a reasoned, speaking order thereon - ITA No. 98/Bang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanying appeal before the Hon'ble Appellate Tribunal within the time specified in Section 253 (3) of the Income Tax Act, 1961, which according to the Appellant ought to have been filed on or before 27th day of November, 2016. Thus a delay of about 57 days is caused. d. Therefore the appellant prays that the Hon'ble Appellate Tribunal may, please, condone the delay caused till the day of filing the said appeal and to admit the said appeal under section 253(5) of the Income Tax Act, 1961. 4. The facts contained in the accompanying application made u/s 253 (5) of the Income Tax Act, 1961 are true and correct to the best of my knowledge and belief. 2.2 We have heard the rival contentions and perused and carefully considered the material on record. Taking into account the facts and circumstances of the case, the reasons cited in the Affidavit for the delay in filing the appeal and respectfully following the principles laid down by the Hon ble Apex Court in the case of MST Katiji Others (167 ITR 467) (SC) for considering matters of condonation of delay, we are of the opinion that this is a fit case for condonation of 57 days in filing this appeal before the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee s claim for exemption u/s 54 of the Act to the file of the AO for fresh consideration. The operative portion of the Hon ble High Courts decision from the framing of the substantial question of law to the directions issued to the AO in respect of consideration of the assessee s claim for exemption u/s 54 of the Act at paras 4 to 8 thereof are extracted hereunder:- 4. The following substantial question of law has been formulated in the memorandum of appeal and on reconsideration of the substantial question of law, following substantial question of law is framed for consideration: Whether the AO while passing rectification u/s 154 should have to give benefits to assessee available u/s 54, even though there is no claim made by the assessee to that effect ? 5. Learned counsel for the appellant submits that, the Appellant Tribunal has committed a mistake in declaring that the assessee is entitled to benefit u/s 54, but while computing the benefit has followed the section 54F. Thus states that, it has resulted in wrong computation of the benefit u/s 54. 6. The Learned counsel for the appellant further submitted that, the AO in the course of rectification order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in denying to grant the exemption of ₹ 74,80,000/- u/s 54 (2) of the Act, acting in defiance of the Hon'ble High Court of Karnataka. 3. The Learned Commissioner of Income Tax (Appeals) erred in upholding the impugned order of the Assessing Officer on the mistaken fact that the Assessing Officer has allowed the deduction of ₹ 77,50,000/- u/s 54 of the Act as claimed by the Appellant in his Return of Income on 30.8.1996. 4. The Learned Commissioner of Income Tax (Appeals) erred in dismissing the Appellant's appeal challenging the impugned order of the Assessing Officer who failed to grant the exemption of ₹ 74,80,000/- u/s 54 (2) of the Act acting in defiance of the Hon'ble High Court of Karnataka. 5. The Learned CIT (Appeals) erred in dismissing the Appellant's appeal challenging the impugned order of the Assessing Officer with complete disregard to the facts of the case, applicable law and to the binding decision of Jurisdictional Hon'ble High Court of karnataka. 5.0 Grounds 1 and 5 5.1 In these grounds (Supra), the assessee challenges the orders of the authorities below, i.e, AO/CIT(A) as being incorrect, improper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt dates, the assessee has furnished the details as called for during The course of hearings. After examining the details furnished, and discussing the case with the AR, the assessment is completed by accepting the original return filed by the ossessee. Accordingly, the assessment is completed as under: 5.2.3 In our considered view, a perusal of the order of assessment dated 27/3/2014 for asst. year 1996-97, as extracted above, clearly establishes the assessee s averment that the AO has passed this order brazenly, ignoring the binding decision of the Hon ble Karnataka High Court for fresh consideration of the assessee s claim for exemption u/s 54 instead of u/s 54F of the Act as originally claimed. We find that there is not even a whisper in the order of assessment to show that the AO complied with the binding decision of the Hon ble High Court of Karnataka in considering the assessee s claim u/s 54 of the Act and adjudicating thereon in the light of the Hon ble Courts observations/directions in this regard. The ld CIT(A) s finding in the impugned order to the contrary; that the AO has complied with the directions of the Hon ble High Court (Supra) in considering the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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