2015 (10) TMI 792

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....he facts and in the circumstances of the case and in law the learned CIT(A) was right in allowing the deduction u/s 54F against the long term capital gain at the time of appellate proceedings without appreciating the fact that the assessee has not claimed the deduction u/s 54 at the time of assessment proceedings before the Assessing Officer." 2. Facts in brief:- The assessee is an individual and during the relevant previous year, has sold immovable property being open land with ground floor at CTS no.59, 5(1-11); 102: 102(8-1) of Goregaon Ward-P South, Goregaon Mulund Link Road and Chincholi Gate Road, Mumbai for a total consideration of Rs. 10 crores vide agreement dated 10th July 2006. The stamp duty valuation of the said property as ....

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....61,88,692 Since the assessee's share on the property was 1/8th, the long term capital gain in the hands of the assessee was arrieved at Rs. 4,57,73,586. 3. During the course of the first appellate proceedings, a reminder was sent to the DVO for submitting the valuation report, instead, the DVO submitted a preliminary report, wherein he has valued the fair market value of the property as on 1st April 1981, at Rs. 204.53 lakhs and as on 10th July 2006 at Rs. 1485.67 lakhs. In the remand report, the Assessing Officer requested that no cognizance of such valuation report of the DVO should be taken. The learned Commissioner (Appeals), however, after discussing the entire issue at length, directed the Assessing Officer to adopt the value of....

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....bility of section 54F. 7. The learned Departmental Representative submitted that the direction of the learned Commissioner (Appeals) amounts to setting aside of the issue to the file of the Assessing Officer, which is not permissible in law and, therefore, the learned Commissioner (Appeals) was obliged to examine the deduction on its own. Hence, the order of the learned Commissioner (Appeals) setting aside the issue to the Assessing Officer is legally not permissible. 8. The learned Counsel for the assessee, on the other hand, submitted that the deduction under section 54F, was not claimed in the return of income or before the Assessing Officer for the reason that, the assessee's income from the long term capital gain was negative, th....