TMI Blog2018 (7) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... litigation, it cannot be treated as a “lis” between two rival parties but the job of the Assessing Officer is to arrive at the correct taxable income Merely on account of fact that the assessee has not claimed exemption, the same could not have been denied. We therefore set-aside the orders passed by the A.O. and direct the A.O. to allow the claim of deduction u/s 54F of the Act.- Decided in favour of assessee. - ITA. No. 1307/Hyd/2017 - - - Dated:- 30-5-2018 - SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI RIFAUR RAHMAN, ACCOUNTANT MEMBER For The Assessee : Shri S.K. Pissay Rajnish Pissay For The Revenue : Shri Prabhat Kumar Gupta, DR ORDER PER D. MANMOHAN, VP: This appeal by the assessee is directed against the order passed by CIT (A)-7, Hyderabad and it pertains to A.Y. 2010-2011. Following grounds were urged before us: 1. The Learned First Appellate Authority has erred in not accepting the pea of the appellant that the sale receipts of the property was invested with residential house and hence he was entitled to a deduction u/s 54F. 2. The Learned First Appellate Authority has further erred in not considering the grounds of app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction u/s 54F for investment in new residential house. He also observed that the A.O. has not verified as to whether the sale proceeds have actually been utilised for construction of house property and whether all the conditions laid down u/s 54F have been fulfilled or not. Though the assessee furnished the details by stating that the sale proceeds were utilised in construction of house building, which is also supported by a valuation report dated 24.09.2012, the Revisional Authority was of the opinion that the A.O. proceeded to complete the assessment without proper examination of the facts, thereby resulting in an assessment which is erroneous and prejudicial to the interestd of Revenue. Accordingly, he concluded that the assessment made in a hurried manner, without applying mind, is erroneous since the A.O. has not verified whether the sale proceeds have actually been utilised for construction of house property and whether all the conditions laid down u/s 54F have been fulfilled or not. The assessment order was accordingly set-aside with a direction to verify the facts and re-deo the assessment as per law. 5. Consequent to the directions of the Revisional Authority, the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revisional Authority to submit that the Ld. CIT(A) wrongly mentioned about the finding in para 6.6 of the order passed u/s 263 whereas the order of the Revisional Authority, on this aspect ends at para 6.1 and even otherwise the sub-paras in para 6 are limited to 6.3 and hence the conclusion of the CIT (A) with regard to categorical finding in para 6.6 is factually incorrect. It was further stated that para 6 and 6.1 are the findings of the Revisional Authority which have to be read in its proper context. Para 6.1 reads as under: 6.1 Having taken up the case for scrutiny, it is the obligatory on the part of the A.O. to examine all issues and complete the assessment. Only through AIR data, it was come to light that the assessee had made transaction of sale of property of ₹ 25,00,188/-. The assessee neither declared the same in the return of income nor made any deduction u/s 54F in the return of income. It was only during the assessment proceedings, when confronted with the AIR information, that the assessee claimed that the sale proceeds were utilised for construction of a house. In order to claim any exemption, the assessee should disclose the transaction in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ITAT. In the written submissions filed by the assessee, it was stated that in fact the Assessing Officer has originally verified / examined all the details and noticed that the assessee is entitled to exemption u/s 54F but the Revisional Authority having set-aside the matter he ought to have reconsidered the matter afresh rather than considering at this stage that the assessee having not made any claim earlier, he is not entitled to claim exemption during the course of assessment proceedings which again is against the spirit of judgment of the Hon ble Supreme Court in the case of Goetze (India) Ltd (supra). In fact the Hon ble Bombay High Court in the case of CIT vs. Pruthvi Brokers and Shareholders P. Ltd (349 ITR 336) (Bom.) observed that the Hon ble Supreme Court has not laid down as a matter of law that there is a bar for the A.O. in entertaining the claim for deduction or otherwise than by filing a revised return. At any rate, as per the decision of Hon ble Delhi High Court in the case of CIT vs. Jai Parabolic Springs Ltd (306 ITR 42) (Delhi), the Tribunal has power to allow deduction to assessee to which he was otherwise entitled even though no such claim was made in the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee regarding deduction u/s 54F of the Act should also be considered and in fact the Assessing Officer has fairly considered the same in the original assessment and completed the assessment without making any addition. Presumably because of this the Revisional Authority did not give much stress to this aspect but limited his direction by stating that the A.O should re-consider the matter in accordance with law. The limited direction reads as under: . Further, the A.O. had not verified whether the sale proceeds have actually been utilized for construction of house property and whether all the conditions laid down u/s 54F have been fulfilled or not. The circumstances would show that A.O. had made the assessment in a hurried manner, without applying his mind and such assessment order by virtue of this became an erroneous one. 11.1. In para 7 also it was categorically stated as under:- Accordingly, the assessment order of the A.O. for the A.Y. 2010-11 is set-aside with a direction to verify the facts as per the directions given above and re-do the assessment, as per law, after providing reasonable opportunity to the assessee. 12. Thus we noticed a categor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
