TMI Blog2021 (10) TMI 1191X X X X Extracts X X X X X X X X Extracts X X X X ..... . On adopting the date of purchase of flat on 10.02.2007 the assessee s claim for section 54F of the Act would be valid as it is within one year. The revenue authorities have adopted the date of sale of land on the basis of registered sale deed dated 28.12.2007 but have not considered the date of possession given by the assessee of the said land on 06.12.2007 but for the purchase of flat revenue authorities have adopted the date of purchase as the registered deed i.e. 12.12.2006 but not considered the date of possession of flat received by the assessee on 10.20.2007. If for sake of academic discussion the basis of possession of the immovable property is taken then also the assessee succeeds as the date of sale of land would be 06.12.2007 and purchase of flat would be 10.02.2007. Assessee has rightly claimed the deduction u/s 54F of the Act for purchase of residential flat on 10.02.2007 which is within one year from the date of sale of the land on 28.12.2007( when the total payment for sale of land was received) and since we have held the claim of section 54 F of the Act for deduction against Long Term Capital Gain as valid, the impugned addition of not utilizing the deposit i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the Hon'ble MP H.C has categorically held that u/s 153C the proper satisfaction has to be recorded by the Assessing officer of the searched person before assuming jurisdiction over the assessee Failure to record satisfaction renders the assessment order null and void? B.Whether absence of satisfaction uls 153C in the hands of the searched person i.e. Sagar Group by the AO of the searched person renders the present assessment order passed uls 153C in the case of the appellant illegal, void and without jurisdiction ? 2.That the aforesaid grounds are purely legal grounds . Raising of such an alternative claim as additional grounds is permissible as held in the case of NTPC v. CIT (1998) 229 ITR 383 SC. Moreover ground no.2 of the appellants' memo of appeal already raises the issue of assessment order being illegal, unlawful and opposed to the provisions of law. Thus these additional grounds are in a way extension of the aforesaid ground no.2. 3.That it is therefore prayed that the appellant be allowed to raise and argue these additional grounds alongwith ground no.2 since they go to the root of the matter and are essentially legal grounds. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial flat at Thane was purchased on 12.12.2006 and not on 10.02.2007 claimed by the assessee and therefore since flat was not purchased within one year of date of sale of land claim made u/s 54F of the Act at ₹ 22,99,270/- cannot be allowed. Ld. Assessing Officer accordingly added back the deduction claimed in A.Y. 2008-09 for deposit in Capital Gain Account and assessed the income at ₹ 50,35,810/- and also agricultural income at ₹ 50,000/-. 5. Aggrieved assessee preferred an appeal before the ld. CIT(A) challenging the addition of ₹ 22,99,270/- but failed to succeed as Ld. CIT(A) confirmed the view taken by the Ld. AO observing as follows(relevant extract): During assessment proceedings for A.Y 2010-11, the ACIT (Central), Bhopal has made an addition of ₹ 22,99,270/- on account of unutilized Capital Gain. The claim of the assessee that he has made investment in flat no 1002, 10th Floor, Building No. lA, Siddhachal Phase VIII Co Operative Housing Society, Thane, Mumbai was rejected. The assessee at the time of filing of original return was aware of the fact regarding purchase of flat at Mumbai but the assessee chose not to claim deduction U/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount Scheme. Under what circumstance later on he changed his mind to claim deduction on account of purchase of flat. Thus, it is abundantly clear that the appellant has deliberately tried to claim deduction on account of residential house once he realized that the time limit for utilization of the amount deposited in Capital Gain Account Scheme had expired. This is clearly an afterthought. When the appellant has been filing returns of income regularly and even if he was not aware of the provisions regarding capital Gains he had the where with all to seek the advice of an expert or professional. I have considered the submissions of the learned ARs, the various decision cited and perused the assessment order. In view of the above, the finding of the A.a that ₹ 22,99,270/- is chargeable to tax in A.Y 2010-11 as unutilized amount in capital gain account scheme calls for no interference. The addition of ₹ 22,99,270/- for A.Y 2010- Il is confirmed. The ground of appeal for A. Y 2010-11 is dismissed 6. Aggrieved assessee is in appeal before Tribunal raising a legal issue in the additional ground and also has challenged the quantum addition. 7. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arched person after examining the seized records of the M/s Sagar Group wherein search was conducted on 21.10.2011. Name: M/s. Vindhyachal Process Corporation 116, Malviya Nagar, Bhopal PAN: ACUPJ6175D Reasons for issue of notice u/s 153C of the Act, 1961 Search seizure operations were carried out in the business/residential premises of M/s Sagar Group on 21.10.2011 and during the course of search, Following books of accounts/documents belonging to the assessee M/s Vindhyachal Process Corporation were also found and seized:- 1. Books of accounts/documents found and seized from the premises of 250, Sagar Plaza, M.P. Nagar, Zone-1, Bhopal Page No. Details 152 to 156 of LPS-3 Agreement to sale of ₹ 5.15 crores held on 12th May 2008 betwee, Shri Yogesh Kumar Jhingan, Smt. Vinita Jhigan, Smt. Sudha Modi(seller) partenrs of the firm M/s Vindhyachal Process Corporation and Shri S.K. Agrawal (Purchaser) for the alnd situated on Khasra No.144/2/1, 154/1,143/1/1 admeasuring 2.775 Acres at Gram Babadia Kalan Patwari Halkan No.2 Ward No.53 and Deed for tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of ₹ 25,00,000/-. Possession of the said land was given on 06.12.2007. Indexed cost of acquisition of the land was ₹ 2,00,730/-. Net Long Term Capital Gain was ₹ 22,99,270/- from sale of said land. There is no dispute for the Long Term Capital Gain of ₹ 22,99,270/-. Assessee deposited ₹ 23,00,000/- in Capital Gain Account Scheme on 29.09.2008 and claimed the deduction in the return of income filed for A.Y. 2008-09 on 30th September 2008. Subsequently, when the assessee was issued a notice u/s 153C of the Act he again filed the return of income declaring same income as was shown in the original return of income. However, in the computation of total income attached with the return of income filed on 07.10.2013, the assessee made change in the deduction claimed against the Long Term Capital Gain of ₹ 22,99,270/- by claiming deduction u/s 54F of the Act at ₹ 22,99,270/- ( as against the deduction for deposit in Capital Gain Account Deposit Scheme of ₹ 23,00,000/- made in the original return of income), for purchase of a residential flat at Thane, Mumbai on 10.02.2007. 16. Both the lower authorities were not satisfied with this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of purchased as 10.02.2007. From perusal of records we find that registered sale deed placed at pages 20 to 34 was executed on 12.12.2006 but on perusal of paper book pages 35 to 38 we find that the possession of the said flat was given to the assessee on 10.02.2007. The transfer of residential flat in favour of the assessee is completed only when the possession is given i.e. 10.02.2007. On adopting the date of purchase of flat on 10.02.2007 the assessee s claim for section 54F of the Act would be valid as it is within one year. 20. We also find that the revenue authorities have adopted the date of sale of land on the basis of registered sale deed dated 28.12.2007 but have not considered the date of possession given by the assessee of the said land on 06.12.2007 but for the purchase of flat revenue authorities have adopted the date of purchase as the registered deed i.e. 12.12.2006 but not considered the date of possession of flat received by the assessee on 10.20.2007. If for sake of academic discussion the basis of possession of the immovable property is taken then also the assessee succeeds as the date of sale of land would be 06.12.2007 and purchase of flat would be 10.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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