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TMI Blog2018 (7) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... al, Bangalore Bench "B", dated 27.07.2016 for the Assessment Years 2005-06 to 2009-10. 2. The learned Counsel for the Assessee has suggested the following three substantial questions of law in the Memorandum of Appeal filed by the Appellant. I. Whether, on the facts and in the circumstances of the case, Appellate Tribunal was correct in holding that Addl./Joint Commissioner while granting an approval u/s.153D of the Act, to an order to be passed u/s.153A of the Act, no opportunity need to be provided to the Appellant? II. Whether, on the facts and circumstances of the case, the Appellate Tribunal, notwithstanding the disclosure of transaction of sale of agricultural land in the original return filed and in absence of any incriminating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessee before the first Appellate Authority, namely, Commissioner of Income Tax [Appeals] before whom also the same question was raised, but the first Appellate Authority negatived the said contention of the Assessee on the ground that the provisions of Section 153D of the Act, in its term, does not require any such opportunity of hearing to be given to the Assessee by the Authority who is to approve the Draft Assessment Order to be passed by the Assessing Authority. A similar contention though raised before the learned Tribunal by the Assessee was also negatived by the Tribunal. 5. Learned Counsel for the Assessee, however, submitted that Clause-9 of Manual of Office Procedure, Volume-II [Technical], February 2003 issued by the Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Section 153D of the Act in giving any such opportunity of hearing to the Assessee before granting approval to the Draft Assessment Order to be passed by the lower Assessing Authority, namely, Deputy Commissioner in the present case, such a requirement cannot be fastened upon the Assessing Authority. He submitted that the act of approval is an administrative in nature and even if the same is treated as a quasi-judicial function, in the absence of any specific provision in this regard, in Section 153D of the Act, no such inference can be drawn. He also submitted that undoubtedly the Assessing Authority gave full opportunity of hearing to the Assessee in the present case, so also before the two Appellate Authorities below, who have dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrent powers of assessment as are available with the Assessing Authority, have admittedly heard the Assessee on the merits of the case. Therefore, we are of the opinion that no substantial question of law in this regard can be said to be arising on the basis of the office guidelines which are for internal purposes of the Department. They are not even statutory instructions issued u/s. 119 of the Act, which if beneficial to Assessee have been held to be binding on the Authorities of the Department. The Assessee has also not been able to point out any prejudice caused to him on account of approving Authority not giving him an opportunity of hearing. 9. The second issue raised by the learned Counsel for the Assessee is with regard to claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e capital gain is greater than the cost of the land so purchased (hereinafter referred to as the new asset), the difference between the amount of the capital gain and the cost of the new asset shall be charged under section 45 as the income of the previous year; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase, the cost shall be nil; or (ii) if the amount of the capital gain is equal to or less than the cost of the new asset, the capital gain shall not be charged under section 45; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase, the cost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs of the Assessing Authority in this regard, who has clearly found that the land in question was not used as agricultural land for a period of more than two years. "5.9.1. Disallowance of exemption claimed u/s 54B of the I.T.Act. 5.9.2. In the return of income filed, the assessee computed the short term capital gain of Rs. 11,97,996/- from sale of Adyar Property treating the same as capital asset and claimed exemption u/s 54B of the I.T.Act. The assessee also in his letter dated 03.05.2010 pleaded that he is eligible for exemption u/s 54B of the I.T.Act as he has invested the capital gain from sale of land used for Agricultural purposes for purchase of any other land for being used for agricultural purpose. Accordingly, the assessee c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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