2020 (11) TMI 408

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....e we deal with the substantive issue as to whether there is any rectifiable mistake as envisaged under Section 254(2) of the Act, we need to reiterate certain basic facts. The dispute in the corresponding appeal from which the present application arises relates to disallowance of assessee's claim of deduction under Section 54(1) of the Act. During the year under consideration, assessee had derived capital gain on sale of an immoveable property. In the return of income filed for the impugned assessment year, assessee claimed deduction under Section 54(1) of the Act by stating that the capital gain derived has been invested in purchasing a new residential house. However, during the assessment proceedings, the Assessing Officer on verifying....

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....date of filing of return by the assessee. The Tribunal was of the view that if the investment in purchase of new house property was made before the actual date of filing of return of income, even, within the time permitted under Sections 139(4) and 139(5) of the Act, assessee would be eligible to claim deduction under Section 54 of the Act. However, in the facts of assessee's case, the Tribunal noted that the actual date of filing of return by the assessee was 26.07.2012 and, as on that date, assessee had not invested any amount out of the unutilised capital gain in purchase of a new residential house. Therefore, relying upon the ratio laid down by the Hon'ble Jurisdictional High Court in the case of Humayun Suleman Merchant vs ACIT, 38....

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.... is a mistake apparent on the face of record; and, iv) The alternate contention of the assessee that it has entered into Memorandum of Understanding for purchase of property, thereby, fulfilling the conditions of Section 54(1) of the Act, has not been considered. 4. As could be seen from the aforesaid, according to the assessee the appeal order passed by the Tribunal suffers from mistake apparent from record due to improper consideration of various decisions as well as non-consideration of alternate contention. As discussed earlier, the Tribunal after considering the submissions of the assessee, taking note of facts involved, relevant statutory provisions as well as ratio laid down in the decisions cited before it, has decided t....