TaxTMI 
TaxTMI 
2016 (7) TMI 196
X X X X Extracts X X X X
X X X X Extracts X X X X
....ions have been presented for our consideration: "(A) Whether the Tribunal is right in law and on facts in upholding the order passed by the CIT under section 263 of the Act on merits and still storing the issue of allowability of deduction under section 54 of the Act to the file of Assessing Officer even through the working of allowability of deduction under section 54F is available in the order under section 263 which is not disputed by the assessee before ITAT ? (B) Whether the Tribunal is right in law and on facts in not accepting the long term capital gain treated as "business income" although transaction was in the nature of business in line with the past history of the assessee ?" 2. The respondent assessee, for t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....come from sale of the land would be business income and consequently the assessee's claim of deduction under section 54F of the Act would be denied. 4. Against such order, the assessee preferred appeal before the Tribunal. The Tribunal by the impugned judgment allowed the assessee's appeal primarily on the ground that two views were possible and in which case, the Commissioner could not have exercised the revisional powers. By the time, the Tribunal gave this judgment, the Assessing Officer had already given effect to the revisional order passed by the Commissioner which proceedings had also travelled before the Tribunal and the Tribunal therefore set aside the order also. It is therefore that the Revenue has filed two appeals be....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... * Construct the residential house property within a period of three years after the date of transfer of the asset. 2. Section 54 of the Income Tax Act dealing with exemption from tax for long term gains on transfer of a long term capital asset other than a residential house provides as under (relevant extracts only): "Capital gain on transfer of certain capital assets not to be charged in case of investment in residential house. 54F. (1) [Subject to the provisions of sub-section (4), where, in the case of an assessee being an individual or a Hindu undivided family], the capital gain arises from the transfer of any longterm capital asset, not being a residential house (hereafter in this section referred to as ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the conditions for getting benefit of section 54/54Fis that on sale or transfer of the old house, the assessee should either purchase a new house within one year before sale or within 2 years after sale or should construct a new house within 3 years of the sale of old house by investing therein the nest amount of capital gain arising from the sale or transfer of the old house." 6. It can thus be seen that though final order of assessment was silent on this aspect, the Assessing Officer had carried out inquiries about the nature of sale of land and about the validity of the assessee's claim of deduction under section 54F of the Act. Learned counsel for the Revenue however submitted that these inquiries were confined to the claim o....