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TMI Blog2020 (7) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Ld. CIT(A)- 1, Chandigarh in appeal No. 10098/17-18 dated 20.11.2018 is contrary to law and facts of the case. 2. That in the facts and circumstances of the case, the Ld. CIT(A) gravelly erred in upholding the order passed by the Ld. Assessing Officer u/s 154 of the Income Tax Act, 1961 as the issue of allowance of benefit under section 54B of the Income Tax Act, 1961 was investigated by the Ld. Assessing Officer during the course of original assessment proceedings and has wrongly held that it is a mistake apparent form the record. It is not covered u/s 54 of the Income Tax Act, 1961. 3. That in the facts and circumstances of the case, the Ld. CIT(A) gravelly erred in upholding the action of the Ld. Assessing Officer who disallo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act observing that the assessee being 'HUF' was not entitled to claim of deduction u/s 54B of the Act on account of reinvestment made in purchase of agricultural land as the same for the assessment year under consideration i.e. assessment year 2012-13 was not available to an 'HUF'. As per the provisions of section 54B of the Act, as applicable for A.Y. 2012-13, where the capital gain arises to an assessee from transfer of a capital asset being land, which, in the two years immediately preceding the date on which transfer took place, was being used by the assessee or a parent of his for agricultural purpose and the assessee has, within a period of two years after that date, purchased any other land for being used for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee in the scrutiny assessment proceedings u/s 143(3) of the Act could not have been taken back by Assessing Officer by way of rectification order passed u/s 154 of the Act. He has submitted that the powers of the Assessing Officer to rectify an order u/s 154 of the Act are very limited and that this can be exercised only in case of a mistake apparent on record. That the order cannot be amended / recalled or revised on a debatable issue merely because of change of opinion of the Assessing Officer on such an issue. 7. On the other hand, the Ld. DR has submitted that since as per the Finance Act 2012, the amendment in question has been made applicable prospectively from 1.4.2013, therefore, the Assessing Officer has rightly exercised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being land which, in the two years immediately preceding the date on which the transfer took place, was being used by the assessee or a parent of his for agricultural purposes [(hereinafter referred to as the original asset)], and the assessee has, within a period of two years after that date, purchased any other land for being used for agricultural purposes, then, instead of the capital gain being charged to income-tax as income of the previous year in which the transfer took place, it shall be dealt with in accordance with the following provisions of this section, that is to say,- (i ) ......" A perusal of the above provisions reveal that deduction u/s 54B of the Act is available - (i) Where capital gain arises on transfer, of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n section 54B prior to such amendment, the wording prior to amendment was, "assessee or a parent of his". As per the provisions of the Income Tax Act, the assessee inter alia can be an individual or an 'HUF' also. Moreover, as per amended provisions deduction is available to the "assessee" if the land is used for agricultural purposes by the assessee himself or by his parent or an 'HUF'. What is noted is that amendment has been carried out in respect of 'user' of the land not in respect of the claimant / assessee whose income is assessed. It is also a well-known fact that in the land record maintained by the Land Revenue Department, ownership of property is entered in the name of an individual and not in the name of 'HUF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation under section 254(2) of the Income-tax Act can be exercised only when the mistake which is sought to be rectified is an obvious and patent; mistake which is apparent from the record, and not a mistake which requires to be established by arguments and a long drawn process of reasoning on points on which there may conceivably be two opinions. The said proposition can be rightly applied to identical provisions of section 154 of the Act dealing with the rectification powers of the Income Tax Authorities. 11. In view of this, the rectification order passed by the Assessing Officer and further confirmed by the CIT(A) cannot be held to be justified. Therefore, the impugned orders of the CIT(A) and the Assessing Officer are hereby set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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