TMI Blog2019 (5) TMI 1255X X X X Extracts X X X X X X X X Extracts X X X X ..... echnicalities must not come in the way of determination of the correct total income. Therefore, the refusal by the CIT(A) to admit additional evidence, in the facts and circumstances of the case on hand, does not stand to reason. Claim of Exemption u/s 54 - in remand report AO has only remarked that there is a claim for exemption u/s 54 and that no return of income has been filed by the assessee for AY 2009-10 - HELD THAT:- No adverse remarks have been made by the AO with regard to the computation of LTCG as well as the entitlement to claim exemption u/s 54. It is, therefore, clear that the AO was satisfied about the sale / purchase of the said properties and the investment benefit available to the assessee u/s 54. In the remand report, the AO has only remarked that there is a claim for exemption u/s 54 and that no return of income has been filed by the assessee for Assessment Year 2009-10. This remark by the AO cannot be a factor to deny the assessee its legitimate claim for exemption u/s 54. There is no prohibition under the Act on the assessee in claiming exemption u/s 54 in case it has not filed a return of income. Such a legal claim can be put forth at any stage of asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment Year 2009-10 nor any of the notices issued by the AO were received by the assessee since the last known address of the assessee was the residential property / house sold by the assessee vide sale deed dated 16.05.2008. It was only after the bank account of the assessee was attached by the Department, that the assessee approached the Department and obtained a copy of assessment order dated 16.05.2008 for Assessment Year 2008-09. Thereafter, the assessee filed an appeal before the CIT(A)-7, Bangalore, on 26.04.2017. 2.3 Before the CIT(A), the assessee submitted that after sale of the aforesaid property vide sale deed dated 16.05.2008 for ₹ 46,65,000/-, she had purchased a new residential property at No.190/2, 7th Cross, Kathriguppe East, 4th Phase, BanashankarI III Stage, Bangalore, for a consideration of ₹ 37,50,830/- vide sale / purchase deed dated 22.05.2008. Upon these documents being furnished before him, the CIT(A) called for a report from the AO thereon. The AO submitted a remand report dated 30.01.2018 to the CIT(A) (copy placed at pages 4 and 5 of paper book) stating that he had verified the documentary evidence tendered by the assessee; re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve appreciated that the assessment of the appellant was reopened after 6 years from the end of the assessment year and all the notices were admitted and reportedly served on the last known address of the appellant, which was the property sold by the appellant for which the reassessment proceedings were initiated and therefore, there was sufficient cause as well as inadequate opportunity in course of assessment proceedings and hence, the requirements of clause [c] and clause [d] of Rule 46A(1) were squarely attracted to the appellant's case and the rejection of the additional evidence tendered by the appellant is opposed to law and facts of the appellant's case. 3. The learned CIT[A] is not justified in upholding the assessment of Long term Capital gains of ₹ 46,65,000/- on the sale of the residential house by the appellant during the year under appeal under the facts and in the circumstances of the appellant's case. 4. The learned CIT[A] ought to have appreciated that the appellant was entitled to exemption claimed u/s.54 of the Act and hence, there was no capital gains chargeable to tax under the facts and in the circumstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08; almost 8 years later. Therefore, the fact that the assessee did not appear before the AO in the course of assessment proceedings in response to notices issued is understandable and due to sufficient and reasonable cause. In fact, the CIT(A) has also appreciated this position while condoning the delay in filing the appeal before him, as can be seen at para 2 of the impugned appellate order. It is seen that the ex-parte order of assessment passed under section 144 r.w.s. 147 of the Act is dated 14.10.2016 and the appeal has been filed before the CIT(A) on 26.04.2017; which is more than 6 months after the order of assessment for Assessment Year 2009-10 was passed. 5.2.2 While the CIT(A) appreciated the reasonable cause put forth by the assessee for delay in filing the appeal, he has taken a different view in the mater of admission of additional evidence in terms of Rule 46A of the Rules. The CIT(A) held that there was no sufficient cause for admission of additional evidence which was also sought to be admitted on the ground that the assessee was not aware of the assessment proceedings and hence could not produce these documents before the AO. In my view, this appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced by the assessee have been examined. No adverse remarks have been made by the AO with regard to the computation of LTCG as well as the entitlement to claim exemption under section 54 of the Act. It is, therefore, clear that the AO was satisfied about the sale / purchase of the said properties and the investment benefit available to the assessee under section 54 of the Act. In the remand report, the AO has only remarked that there is a claim for exemption under section 54 of the Act and that no return of income has been filed by the assessee for Assessment Year 2009-10. In my view, this remark by the AO cannot be a factor to deny the assessee its legitimate claim for exemption under section 54 of the Act. There is no prohibition under the Act on the assessee in claiming exemption under section 54 of the Act in case it has not filed a return of income. Such a legal claim can be put forth at any stage of assessment / appellate proceedings and should be considered on merits in the light of the details / documents / corroborative evidence filed in this regard. Having considered the entire material on record on this issue and taking into account the peculiar facts and circumstanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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