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TMI Blog2018 (12) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... property from total cost of construction by alleging that these costs are not covered within the provisions of section 54F of the Act. 3. The above grounds of appeals are independent and without prejudice to one another." 3. The first ground of appeal is with respect to issue that adjustment to the income of the appellant has been made on an issue, which was not a mistake apparent from the record and thus is not in the scope of provision of section 154 of the Act. 4. The brief facts of the case are that the assessee is an individual. Original return was filed on 31/10/2006 declaring total income of INR 20,19,98,480/-. The assessee revised the above return on 31/7/2007 enhancing the total income from INR 20,19,98,480/- to INR 21,61,27,270/-. The assessment under section 143 (3) of the act was passed on 10th/12/2008. That assessment order was determined considering the original return of income and the assessed income of INR 20,19,98,480/- was accepted. In nutshell the returned income was assessed under section 143 (3) by the above order dated 10/12/2008. 5. On 25/4/2010 the AO issued notice for rectification under section 154 of the income tax act holding that original income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7683583 in a residential house property and claimed exemption from long-term capital gain in accordance with the provisions of section 54F of the act amounting to INR 7683583. The assessee submitted that it has received net consideration on sale of the financial instrument of INR 43276250/-. The amount of exemption under section 54F was completed at proportionate to the amount of investment made in the house property of INR 7683583 out of the total sale consideration received of INR 43276250 which is also the capital gain income and therefore the deduction of INR 7683583/- was claimed. The assessee submitted that there is no error in the computation of total capital gain chargeable to tax as well as the deduction under section 54F of the act. The assessee also submitted that deduction under the provisions of section 54EC was also computed in accordance with the provisions of the act. The assessee explained that the cost of acquisition of the specified asset is Rs. 119708471 and the total long-term capital gain earned by the assessee is Rs. 221310527/- . The resultant capital gain after reducing the exemption under section 54F was Rs. 22131527 and in proportion to that, the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3/5/2010 In response to notice under section 154, dated 25/4/2010. Therefore, he directed the learned assessing officer to examine this claim and grant deduction as per law. 14. In pursuance to the direction of the learned Commissioner of income tax appeals, the assessing officer issued notice dated 8/1/2013 to the assessee for examination of the about the details, which was replied to by the assessee on 24/1/2013. It culminated into the assessment order dated 16th/4/2013 passed by the learned assessing officer under section 250/154/143 (3) for assessment year holding that the deduction allowable to the assessee under section 54F is only INR 6452323 and not INR 7683583 as claimed by the assessee. The learned assessing officer noted that out of the amount spent for construction of INR 7 683583, INR 1231260 is incurred by the assessee for the various gadgets for which deduction under section 54F is not allowable. Consequently the total income of the assessee was computed at INR 217358530/-. 15. This order was also challenged by the assessee before the Commissioner of income tax appeals. In the appeal the assessee raised a ground that the learned assessing officer has erred in makin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a debatable issue with respect to the expenditure incurred for the construction of residential house. 19. The ld DR vehemently supported the order of the lower authorities. 20. We have carefully considered the rival contentions. Firstly, the learned Commissioner of income tax appeals has not decided the ground raised by the appellant before him that whether the issue of the cost of residential house can be the subject matter of rectification or not. The provisions of section 154, are very clear which gives a power to the assessing officer to rectify the mistake if it is apparent from the record. This issue is apparently not a mistake apparent from the record. When the learned assessing officer has made the detailed examination of the cost of construction of the residential house property and held that certain items incurred by the assessee for the construction of residential house are not covered for the purpose of exemption under section 54F of the income tax act. It is always debatable what are the amenities, which can be included in the cost of residential house. Therefore according to us the learned AO was not correct a invoking the provisions of section 154 of the income ..... X X X X Extracts X X X X X X X X Extracts X X X X
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