TaxTMI 
TaxTMI 
2020 (2) TMI 87
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.... -Do- -Do- 01.02.2016 24.03.2014 143(3) r.w.s. 263 of the Act 997/Ahd/16 -Do- -Do- -Do- -Do- -Do- 2. When the matter was called for hearing, the learned AR for the assessee fairly pointed out that the legal challenge to the jurisdiction assumed by the Commissioner of Income Tax under s.263 of the Act is not sustainable having regard to the decision of the co-ordinate bench of Tribunal in case of other co-owner namely Riddhish B. Trivedi ITA No. 1226/Ahd/2013 order dated 17.01.2020 concerning the same land. In view of the submissions made on behalf of the assessee, we take note of the decision of the Tribunal hereunder upholding the jurisdiction under s.263 of the Act by the Commissioner of Income Tax: "5. We have carefully considered the rival submissions. Section 263 of the Act confers power upon the Pr.CIT/CIT to call for and examine the records of a proceeding under the Act and revise and order if he considers the same to be erroneous and prejudicial to the interest of the Revenue. The Pr.CIT can take recourse to revision under s.263 of the Act where the assessment order is erroneous as well as prejudicial to the interest of Revenue. It is well settled th....
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.... AO has failed to make any inquiry on this vital aspect while admitting the claim of the assessee and allowed the claim summarily. The Pr.CIT in our view correctly appreciated the facts and applied the law in perspective to draw an adverse conclusion on eligibility of deduction. We see no error in the conclusion drawn by the Pr.CIT to hold that the claim under s.54B of the Act has been allowed without fulfillment of prescribed conditions. We thus decline to interfere with the revisional order of the Pr.CIT on this score. 5.2 Notwithstanding that claim of deduction under s.54B of the Act is found to be in contravention with law and therefore the second aspect of the assessee need not to be gone into, we would however deal with the second aspect of controversy as well, for the sake of completeness. 5.3 The assessee claims to have transfer an amount of Rs. 30,45,500/- from 'capital gains saving scheme' to 'capital gain deposit scheme' on same stipulations and claims to have not diverted the money for the purposes other than specified under s.54B(2) of the Act. However, it is the admitted position that no evidence in this regard was filed before the AO to substantiate the assertion....
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....ct. As pointed out on behalf of the assessee, the identical issue came for adjudication in the case of other co-owner namely Sudhaben Balkrishna Trivedi in ITA No.2658/Ahd/2011 order dated 17.08.2017 wherein the issue was adjudicated in favour of the assessee in following terms: "3. To adjudicate on this grievance, only a few material facts need to be taken note of. The assessee had made qualifying investments in REC Bonds, amounting to Rs. 50,00,000/- each, on 31.03.2007 and 31.10.2007, so as to claim deductions under section 54EC. The Assessing Office was of the view that "as per section 54EC, there is a cap of Rs. 50,00,000/- anytime within six months from the date of transfer of property" and, accordingly, he disallowed the amount of Rs. 50,00,000/-. Aggrieved, assessee carried the matter in appeal before the learned CIT(A) who reversed the action of the Assessing Officer. While doing so, learned CIT(A) observed as follows:- "6. The third ground of appeal is disallowance of claim made U/s. 54EC of Rs. 50,00,000/-. The facts of the case are the appellant has made investment of Rs. 50,00,000/- on 31.03.2007 and Rs. 50,00,000/- on 31.10.2007 in RFC bond u/s. 54EC of the Act. T....
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....ision for ceiling limit is effective w.e.f. 01.04.2007 and before that the appellant has made investment of Rs. 50,00,000/- on 31.03.2007. 8. I have considered the arguments of learned A.R. The amendment is made w.e.f. 01.04.2007 and therefore the same cannot be applied to investment made before 01.04.2007. The investment made by the appellant of Rs. 50,00,000/- on 31.03.2007 is therefore, not covered by the amendment. Further, the limit is for financial year only and is not per assessee nor per deduction. Therefore, the investment made on 31.03.2007 is allowable in view of above circular. This ground of appeal is allowed and the Assessing Officer is directed to further allow the deduction of Rs. 50,00,000/- made on 31.03.2007 subject to verification of documents for proof of investment." 4. Aggrieved by the relief so granted by the learned CIT(A), the Assessing Officer is in appeal before us. 5. We have heard the rival submissions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. 6. We see no reasons to interfere in the stand of the learned CIT(A). As he rightly observes, the limit on investment in qualifyi....
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....hip of the assessee HUF. In the course of hearing before the Tribunal also, the assessee has referred to copy of 7/12 showing land and Hak Patrak in Form No.6 issued by Talati wherein the name of the assessee HUF as a joint owner appear the certificate in Form No.6 has been issued on 07.12.2000. Therefore, at the time of sale, the asset is surely a long term capital gain asset. The CIT(A) has taken cognizance of such document issued by an independent local authority to adjudicate the issue in favour of the assessee. We do not see any serious breach of violation of Rule 46A for alleged delinquency in not referring the matter to the AO in relation to such certificate. The holding of asset as long term asset is patent and obvious. The CIT(A) has dealt with the substantive issue as under: "3.4. The first ground raised by the appellant is regarding treating of Rs. 3,80,50,000/-being sale value of property as short term capital gain in the hands of the appellant. During the year, the assessee has sold land situated at Village: Danilimda, Survey No.74, City Ahmedabad. The land was non-agricultural land and claimed to be held in joint ownership with Radheshyam Purshottarndas HUF, Sudha B....
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....at the above evidences submitted by the appellant clearly proves that the appellant was owner of above land from 1971 and therefore capital gain on sale of land should be taken as long term capital gain and while computing long term capital gain, the value should be taken as 1.4.1981 and indexation should be given as claimed by the appellant. 3.7 The appellant has relied upon various documents and details filed by him to show that the assessee is the owner of the said land from 1971. The appellant has mainly relied upon the declaration of Sudha B. Trivedi did. 30.1.2000 and earlier declaration dtd. 29.3.1971. He has also relied upon hak patrak in Form No.6. The appellant has also filed title clearance certificate from Kilol Vinod Shelat, Advocate wherein the history of the ownership of the land is mentioned in detail. The appellant has also furnished 7/12 dtd. 30.4.1971 which shows the ownership of the land in the name of the B.P. Trivedi, HUF. The AO has did not accept the appellant's contention on the ground that relevant details proving the ownership of assessee form 1971 is not furnished. The appellant's contention is that he has furnished all the details during the....
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....see can make this investment only once in life time. It is further contended that only condition to be complied with is within a F.Y. investment should not exceed Rs. 50 lakhs and there is also no restriction that deduction of investment made in anyone F.Y. can only be set off against capital gain arising from any one transaction. The appellant has further contended that all the investment made in notified bonds can be claimed as deduction u/s.54EC of the Act against capital gain arising from anyone transaction subject to the condition that the same is made within 6 months from the date of transfer. The assessee has made investment of Rs. 50 lakhs on 3Tl March, 2007 which is before the amendment which is applicable from lst April, 2007 and the said investment is made out of advance money of sale consideration received by the appellant which is as per circular No.359 dtd. 10.5.1983 the appellant is also relied upon following judgments:- A. Aspi Jinwala v/s ACIT Baroda, Ahmedabad ITAT 20 Taxman.com75. B. CIT v/s C. Jaichander Madras High Court-2014(ll) EMI54. Dt.15.09.2014. C. Smt. Shriram Indubal v/s ITO Chenai Tribunal(2013) 32 Taxman.com 118 D. ITO v/s Rania Faleiro, Panaj....
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....Hon'ble ITAT, Ahmedabad Bench has clearly held that investment in specified bond is to be made within a period of 6 months after the date of such transfer and investment made before the date of sale are not eligible for exemption u/s.54EC of the Act. Further while holding the same the Hon'ble Tribunal has also considered the Circular No.359 dtd. 10.5.1983. The above cited decision of Hon'ble ITAT is directly applicable to the facts of the case, therefore, the assessee is eligible for deduction U/S.54EC of the Act for Rs. 50 lakhs only. Hence the ground raised by the appellant is partly allowed." ............................................................... "7.3. I have considered the facts of the case and submission made by the appellant. The next ground is regarding the disallowance of deduction claimed u/s.54F of the Act. The AO has disallowed the claim of the assessee on the ground that the exemption is available on transfer of long term capital asset whereas the capital gain on transfer of land by the assessee is considered as short term capital asset and as such the exemption is not available to the assessee. 7.4. The assessee has claimed exemption u/s.54F ....