TMI Blog2022 (4) TMI 1317X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 45(5)(b) of the Act, additional compensation / enhanced compensation is taxable in the year in which the same is received by an assessee. According to the Revenue authorities, deduction under section 54 of the Act cannot be claimed on enhanced compensation and such deduction can be claimed only when capital gain arises out of original compensation received by an assessee. In our opinion, this reason given by the Revenue authorities is not acceptable because section 45(5)(b) of the Act only mentions that enhanced compensation is chargeable to tax in the year in which the same is received by the assessee and the taxability is under the head capital gains . Once an income is assessed under the head capital gains , the assessee is entitled to claim as a consequence any deduction that is permissible in law while computing capital gain. Therefore, this reason given by the Revenue authorities in our view is not acceptable. Whether there existed a residential house in the property that was compulsorily acquired by the BMRCL? - We find that the RTC at page 74A of the assessee s Paper Book clearly shows existence of a house. The BBMP has issued a khata and that clearly shows that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of the assessee has to be construed as in the first week of December, 2017. In fact, in Form No.36 filed before the Tribunal, the assessee has left the date of service of the impugned order as December, 2020, without specifying any date. Be that as it may, the delay in filing the appeal has been computed by the assessee at 1065 days. The assessee has also contended that it did not receive the impugned order of the CIT(A). It is only after downloading the impugned order from the web portal of the Department, the assessee filed the present appeal and hence there is no delay in filing the appeal. 3. The reasons for the delay in filing the appeal has been mentioned in the application for condonation for delay by the assessee before the Tribunal. It has been stated therein that one Shri. Ramakrishna Reddy, CA, was engaged by the assessee to handle the aforesaid assessment. It appears that the assessee s land at Sy. No.60/3A-1, Yeshwanthpur, measuring an extent of 7.08 Guntas (hereinafter referred to as Property ) was compulsorily acquired by Bangalore Metro Rail Corporation Ltd., (BMRCL) for the purpose of metro project. The assessee was paid initial compensation of ₹ 1,6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) is concerned, the assessee was under the bonafide impression that an appeal has already been filed before the Tribunal. It was submitted that the present counsel handling appeal for AY 2012 -13, applied for vivad se vishwas on 24/12/2020 thereby had reset the password of an assessee hence had a checking the web portal of assessee and found that the order has been passed under section 250, and uploaded on web portal, and informed the appellant that the Id. CIT(A) has dismissed appeal partly erroneously and the same has to be appealed before ITAT along with condonation of delay, and only thereby the Appellant can apply either for Vivad se vishwas or contest the case (in case the scheme is denied). Hence the present application for condonation of delay. 6. It has been submitted that appellant-petitioner were under bona-fide belief that the date for hearing is not fixed and the matter has not yet posted for further hearing/ or already appealed before this Honourable Tribunal (and completely relied on previous AR). Further the erstwhile CA has attained lotus feet, and the assessee was under impression there is only one appeal (and not two years), being compensation on single land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s given by the assessee for service of notices is evident from the folder of the CIT(A). The presumption is that the order would have been served on the assessee in due course. Hence, it is not possible to accept the contention of the assessee that the impugned order was not served on him at all. 10. As far as the prayer of the assessee for condonation of the delay is concerned, we do not find that the explanation given by the assessee is cogent. It appears that the assessee as well as the authorized representatives completely lost tract of the impugned order of the CIT(A) for Assessment Year 2013-14. It is only when the present Counsel was approached that he took up the matter and on investigation found that there has been omission to file an appeal against the order of the CIT(A) dated 30.11.2017 for Assessment Year 2013-14. Thereupon the required papers were traced and the impugned order downloaded from the official website of the Department. In the given facts and circumstances, we are inclined to accept the reasons for the delay in filing the present appeal. At the outset, we observe that the Hon ble Supreme Court, in the case of Mst. Katiji (supra), has explained the princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the AO, the assessee did not establish there was residential house which was compulsorily acquired by BMRCL. Besides the above, the Revenue authorities also took the view that under section 45(5)(b) of the Act, additional compensation / enhanced compensation is taxable in the year in which the same is received by an assessee. According to the Revenue authorities, deduction under section 54 of the Act cannot be claimed on enhanced compensation and such deduction can be claimed only when capital gain arises out of original compensation received by an assessee. In our opinion, this reason given by the Revenue authorities is not acceptable because section 45(5)(b) of the Act only mentions that enhanced compensation is chargeable to tax in the year in which the same is received by the assessee and the taxability is under the head capital gains . Once an income is assessed under the head capital gains , the assessee is entitled to claim as a consequence any deduction that is permissible in law while computing capital gain. Therefore, this reason given by the Revenue authorities in our view is not acceptable. 13. As far as the question whether there existed a residential house ..... X X X X Extracts X X X X X X X X Extracts X X X X
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