TMI Blog2019 (12) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... nhancement is necessary and why the assessee is not justified in adopting the figure of the actual sale consideration received. Thus the Assessing Officer as well as CIT(A) failed to justify the stand by making addition of ₹ 30,17,456/- in respect of long term capital gain without granting exemption u/s 54F - Appeal of the assessee is allowed. - I.T.A NO. 2235/Del/2016 (A.Y 2009-10) - - - Dated:- 18-11-2019 - MS SUCHITRA KAMBLE, JUDICIAL MEMBER AND SHRI O. P. MEENA, ACCOUNTANT MEMBER Appellant by Shri Ajay Wadhwa, Adv. And Ms. Vanshika Taneja, Adv. Respondent by Shri Ragni Handa, C.A. And Shri Surendra Pal, Sr. D.R ORDER PER SUCHITRA KAMBLE, JM This appeal is filed by the assessee against the order dated 29.03.2016 passed by CIT(A)-IV, Kanpur for Assessment Year 2009-10. 2. The grounds of appeal are as under:- 1. That on the facts of the case and in law, the Commissioner of Income Tax (Appeal-IV), Kanpur erred to enhance and thus confirmed the addition of ₹ 64,07,515/- in place of an amount of ₹ 30,17,456/- as made to the income of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amend or add any one or more grounds. 3. The return declaring an income of ₹ 7,01,200/- was filed on 12.08.2009. The case was selected for scrutiny and notice u/s 143(2) dated 25.08.2010 was issued and served on the assessee. Subsequently, notice u/s 142(1) dated 09.09.2011 along with questionnaire was issued. On 18.11.2011, CA of the assessee attended the assessment proceedings and filed written submissions and was asked to submit the details of property sold. As per AIR information two properties, one property for ₹ 1,58,00,000/- and other property for ₹ 3,14,67,000/- have been sold. The CA of the assessee attended the proceedings from time to time and replied to the queries raised by the Assessing Officer. The assessee is deriving income from salary from 3 organizations. Income from business and profession was also declared and interest from M/s. Globe Construction was also declared under the head income from business , Long term Capital gain for ₹ 49,54,576/- was shown and was claimed exemption u/s 54 by showing purchase of residential property for ₹ 1,15,32,500/- and was also shown bank interest as well as other interest income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elating to working adopted for calculating the benefit of exemption available to the assessee under Section 54F(1)(b) of the Act. The only dispute with the Assessing Officer is with the working of the exemption as claimed u/s 54 of the Act. The assessee calculated exemption u/s 54 for the investment made by the adopting the figure of actual sale consideration received and the Learned Assessing Officer calculated the exemption u/s 54 of the investment made by adopting the figure of the sale consideration by invoking Section 50C of the Act. The CIT(A) has misdirected and enhanced the addition. The investment made in the purchase of new residential house, the essential criteria for allowing benefit of deduction u/s 54F(1)(b) of the Act was ignored. The Ld. AR submitted that Section 54F clearly states that if the cost of new asset is less than the net consideration in respect of the asset transferred, so much of the capital gain as bears to the whole of the capital gain, the same proportion as the cost of the new asset bears to the net consideration, shall not be charged u/s 54F. Nowhere does it mention consideration as per section 50C. The fiction u/s 50C is extended only to the aspec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ix. Raj Babbar vs. ITO (2013) 29 taxmann.com 11 (Mumbai Trib.) x. Commissioner of Income Tax vs. George Henderson and Co. Ltd. [1967] 66 ITR 622 (SC) xi. CIT vs. Smt. Nilofer I. Singh (2008) 309 ITR 233 (Delhi HC) xii. ITO vs. Manjit Singh [2010] 128 TTJ 82 (Chandigarh) (UO) xiii. CIT, Panji vs. V. S. Dempo Company Ltd. [2016] 387 ITR 354 (SC) xiv. CIT vs. ACE Builders (P.) Ltd. (2005) 281 ITR 210 (Bom. HC) xv. CIT vs. Assam Petroleum Industries (P.) Ltd. (2003) 262 ITR 587 (Gau. HC) 6. The Ld. AR further submitted that the case laws relied by the Assessing Officer is not applicable to the facts of the assessee s case as judgment states that Section 50C will be applicable to determine sale consideration for the purpose of computation of capital gain and not for purpose of exemption. The judgment is not in respect of applicability of Section 50C on exemption claimed on capital gain. The Ld. AR further submitted that the case laws relied by the CIT(A) only supports the case of the assessee whereby it is held that the deeming fiction created by virtue of Section 50C in dete ..... X X X X Extracts X X X X X X X X Extracts X X X X
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