TMI Blog2019 (9) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the Tribunal that there were no reasons for Assessing Officer to believe that income chargeable to tax had escaped assessment. Facing this, respondent has argued that in the penultimate paragraph of the impugned order, the Tribunal had noticed that it was deciding appeal on the preliminary questions and had consequently, not decided other questions and has prayed that the matter should be remanded back to the Tribunal so that the other questions can be urged. Once the recitals made in the sale deed are not disputed, the other questions do not arise. Appeal stands allowed and the judgment of the Tribunal is set aside and the orders of the Commissioner and the Assessing Officer are upheld. - Decided in favour of revenue - IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1961 (for the short 'the Act') on the pretext that it was a residential building and after the sale thereof, the proceeds were reinvested in residential building and consequently, he was entitled to set off the capital gain. The return was processed under Section 143 (1) of the Act and subsequently, it came to the notice of the Assessing Officer that in fact the property which was named as 'Gupta House' was actually an 'industrial plot' and not a 'residential house' and consequently, the Assessing Officer issued notice under Section 147 (1) of the Act bringing to the notice of the respondent that deduction under Section 54 of the Act was not allowable and recorded the reasons to believe that income chargea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- u/s 54 of the Income Tax Act 1961 and that too by recording incorrect facts and findings and without giving adequate opportunity to the assessee. 6. That in any case and in any view of the matter, the action of Ld. A.O. in denying the benefit of deduction of ₹ 4,83,09,16/- u/s 54 and in framing the impugned assessment order is illegal, bad in law, contrary to law and facts and beyond jurisdiction, by recording incorrect facts and findings and the same are not sustainable on various legal and factual grounds. 7. That having regard to the facts and circumstances of the case, Ld. A.O, has erred in law and on facts in charging interest u/s 234B and 2134C of Income Tax Act, 1961. 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1961 on the basis of amount invested in two flats, viz Flat No.D-153. DLF City and Flat No.B-1916, DLF City, Gurgaon, total investment amounting to ₹ 4,85,16,233/-. However perusal of records has revealed that the Flat No.D-153, DLF City, Gurgaon is in the name of Smt. Nirmala Gupta, mother of assessee. Hence claim u/s 54 regarding Flat No.D-153, DLF City cannot be allowed. Further, the deduction claimed u/s 54 of the Act by the assessee on the property named `Gupta House' situated at Kherki Daula, N.H. 8, Gurgaon is not permissible as the same was an Industrial property. Therefore, the assessee's claim as to entitlement for benefit of deduction u/s 54 needs to be examined. Therefore, capital gain amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer to believe that income chargeable to tax had escaped assessment. 8. Facing this, learned Senior counsel for the respondent has argued that in the penultimate paragraph of the impugned order, the Tribunal had noticed that it was deciding appeal on the preliminary questions and had consequently, not decided other questions and has prayed that the matter should be remanded back to the Tribunal so that the other questions can be urged. 9. In our considered opinion, once the recitals made in the sale deed are not disputed, the other questions do not arise. 10. In these circumstances, the appeal stands allowed and the judgment of the Tribunal is set aside and the orders of the Commissioner a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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