TMI Blog2023 (12) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... the provision of section 154 of the Act does not permit to revisit the claim that has already been allowed. The Bench also noted that in this case the assessee was already confronted on the claim u/s 54F of the act and the same has been examined on its merit under the guise of section 154 of the Act the claim which has already been considered at length cannot be revised u/s 154 of the Act considering the arguments recorded hereinabove and discussion considering the various decision cited we quash the order passed u/s. 154 of the Act. Based on these observation ground No. 1 raised by the assessee is allowed. - DR. S. SEETHALAKSHMI, JM SHRI RATHOD KAMLESH JAYANTBHAI, AM For the Appellant : Shri Shyam S. Singhvi-C.A. For the Respondent : Shri S.M. Joshi, JCIT-DR ORDER PER: Dr. S. Seethalakshmi, JM The assessee has filed an appeal against the order of the National Faceless Appeal Centre, Delhi [herein after NFAC/Ld.CIT(A) ] dated 27.04.2023 for the assessment year 2013-14. 2. The assessee has raised the following grounds of appeal:- 1. The Ld. AO has grossly erred in law and facts to invoke made addition u/s 154 of the Act hence bad and v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t mentions that he has invested construction/purchase of residential house. He nowhere mentions about investment in different houses in the main reply. Therefore it cannot be said that the applicability of deduction u/s 54F of the Act in the circumstances of the case has been examined by the Assessing Officer and a decision has been taken. This mistake in this case is apparent from record as the appellant had submitted the details of four properties and the deduction in respect of more than house property was not allowable in this case u/s 54F of the Act. Therefore, the case laws cited by the appellant are not applicable on this ground and further, as discussed in above paras the applicability of section 54F in case of purchase different houses is not a debatable issue, therefore the case laws cited by the appellant holding that rectification cannot be done in the cases where the issue involved is debatable, are also not applicable. In view of these facts, I hold that the Assessing Officer has correctly rectify the Assessment order on the basis of mistake apparent from record and therefore ground No. 1 and 2 of the appeal are dismissed. 4.6 The 3 rd ground of appeal is regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal, it has been argued on similar line like: Provision of section 54F in force up-to AY 2014-15 permit investment in more than residential house shall apply and i.e. AY 2015-16, investment has been restricted into one residential house. Reply case laws reliance referred at Pg No 99 to 101 with case laws at 64 to 97. Provision of 154 cannot be resorted to unless there is glaring mistake of facts or law committed by the AO and not caused by different interpretation on a particular issue. Case law reliance placed be referred at Pg No 101 to 103 with case laws at 112 to 116. Ld CIT (Appeals) dismissed the appeal on observations like: 1. None of the case law relied shows that it has been held that the word a used in the section 54F means multiple houses. Since the appellant has purchased three lands at different places and one of them is agriculture land also. And therefore the appellant was entitled for claim of exemption u/s 54F in respect of purchase of one flat at Rs 42 lac only. (Para 4.3 of the appellate order). 2. Provision of section 154 is amenable because- the appellant nowhere mention about investment in different houses in the main reply. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect from 28-12-2021, personal hearing is to be granted invariably through video conferencing (VC) in all cases where request for personal hearing is made. The said amendment is curative amendment and has to be treated as retrospective in nature. [2021] 130 taxmann.com 445 (Bom); Chander Manwani v/s NFAC [2021] 129 taxmann.com 18 (Bom); Piramal Enterprises Ltd .v/s NFAC [2021] 132 taxmann.com 30 (Delhi); Naina lal Kidwai v/s NFAC etc. 5.1 The ld. AR of the assessee in addition to the above written submission submitted that the assessment in this case u/s 143(3) has already been completed. The ld. AR of the assessee submitted that the details related to deduction of section 54F of the Act have already been examined in the original assessment proceedings. For that of the matter the ld. AR drawn our attention to the order sheet entry at page 6 of his paper book filed and submission on the issue at page 7 and 8 wherein the claim of deduction claimed made has already examined. In the light of this fact that the issue has already been examined and the law does not permit to amend the order under the guise of section 154 of the Act. Therefore, prayed to quash being bad in la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 of the order Against the said long term capital gains, the assessee acquired two residential flats namely a) Mayurshrishti for Rs. 38,03010/- and b) Shanti Gardens for Rs. 37,73,590/- comprising two agreements. Para 11 12 of the order at page No. 80- 81 of PB No adverse inference drawn by ld. CIT(A) 4. CIT v/s D Ananda Basappa; (2009) 309 ITR (Kar) 329 Para 4.2.5 at pg 12 of the order 8. On facts, it is shown by the assessee that the apartments are situated side by side. The order builder has also stated that he has effected modification of the flats to make it as one unit by opening the door in between TWO apartments. The fact that at the time when the inspector inspected the premises, the flats were occupied by two different tenants is not the ground to hold that the apartment is not a one residential unit. The fact that the assessee could have purchased both the flats in one single sale deed or could have narrated the purchase of two premises as one unit in the sale deed is not the ground to hold that the assessee had no intention to purchase the two flats as one uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s purchased by assessee constituted one flat or two flats for purpose of exemption under section 54F was examined by Assessing Officer in original assessment, reopening of assessment to disallow exemption under section 54F on same facts was not sustainable [In favour of assessee]. [2022] 138 taxmann.com 445 (Delhi - Trib.); Saroj Arora v/s ITO Section 54 of the Income-tax Act, 1961-Capital gains Profit on sale of property used for residence (One Residential house Assessment year 2013-14 During year, assessee had received long term capital gain (LTCG) on sale of a residential property which was set-off towards purchase of two residential properties - Accordingly, assessee sought exemption under section 54 - Assessing Officer in view of amended provision of section 54 restricted assessee's claim to purchase value of only one property having higher value Whether since amendment to provision of section 54 restricting deduction allowed under section 54 to only one residential property was applicable prospectively from 1-4-2015, exemption claimed by assessee under section 54 during assessment year 2013-14 would not fall within ambit of amended provision Held, yes Whether, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... force, amend the order under that sub-section in relation to any matter other than the matter which has been so considered and decided. (2) Subject to the other provisions of this section, the authority concerned (a) may make an amendment under sub-section (1) of its own motion, and (b) shall make such amendment for rectifying any such mistake which has been brought to its notice by the assessee or by the deductor or by the collector, and where the authority concerned is 71[the Joint Commissioner (Appeals) or] the Commissioner (Appeals), by the Assessing Officer also. (3) An amendment, which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee or the deductor or the collector, shall not be made under this section unless the authority concerned has given notice to the assessee or the deductor or the collector of its intention so to do and has allowed the assessee or the deductor or the collector a reasonable opportunity of being heard. (4) Where an amendment is made under this section, an order shall be passed in writing by the income-tax authority concerned. (5) Where any such amendment has the effec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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