TaxTMI 
TaxTMI 
2021 (2) TMI 674
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....or deduction under section 54 of the Income Tax Act, 1961. The action of the ld. PCIT is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by holding the observation of ld. PCIT as illegal, contrary to facts available on record and beyond jurisdiction. Accordingly, the revision order of ld. PCIT passed u/s 263 may please be quashed." 2. At the outset, it is noted that there is a delay in filing the present appeal by 26 days. After hearing both the parties and considering the affidavit filed by the assessee, the delay is hereby condoned and the appeal is admitted for necessary adjudication. 3. During the course of hearing, the ld. AR submitted that the assessee filed his return of income on 30.08.2015 declaring total income of Rs. 42,13,860. The case of assessee was selected for limited scrutiny. The assessment was then completed u/s 143(3) vide order dated 16.10.2017 wherein the returned income of the assessee was accepted. The case of the assessee was then taken up for revisionary proceedings u/s 263 by ld. PCIT. The present appeal is against the order u/s 263 of the Act. 4. The ld. AR submitted that the case of the assessee w....
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....it is impossible for ld. AO to ignore the Purchase Deed (from which the details of payments are evident) which is the main document for claim of deduction. Whatever was required to examine the issue was already on record and on being convinced about the facts and legal position ld. AO did not feel the necessity of raising any query or making any discussion. Thus, question of lack of enquiry does not arise. 8. It was submitted that the ld. PCIT has held that no view was formed by ld. AO as the assessment order nowhere speaks on the issue of deduction and as to why the deduction was allowed to the assessee. It was submitted that there are no guidelines or the provisions which explains how an assessment order shall be drafted. Therefore, mere silence on the matter or absence of discussion in the order by itself would not conclude that the AO did not apply his mind. It has been the general experience that assessment orders are so drafted that they contain a discussion, in brief, only on the points on which there is a difference of opinion between the assessee and the AO. Where the contention or claim of the assessee is accepted, normally there is no discussion in the assessment orde....
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.... the Hon'ble Bench placed reliance on the decision of Hon'ble Rajasthan High Court in the case of Ganpat Ram Vishnoi 296 ITR 292 (Raj) and Hon'ble Delhi High Court in the case of D.G. Housing Projects Ltd 343 ITR 329 (Delhi). In view of the above factual and legal position, ld. PCIT has grossly erred in assuming jurisdiction under section 263. Thus, the entire such proceedings initiated by the ld. PCIT deserves to the quashed. 10. Per contra, the ld. CIT/DR relied on the order of ld. Pr. CIT and his relevant findings are as under:- "2. The case of the assessee was selected through CASS under the category 'limited scrutiny' for the reasons of Large Deduction Claimed under the head Capital Gains and Tax Credit Mismatch. The assessment was completed on 16-10-2017 u/s 143(3) of the I. T Act, 1961 (hereinafter referred to as "the Act') by accepting the returned income of Rs. 42,13,860/-. 3. For the year under consideration, the assessee is a salaried person employed by the University of Rajasthan. During the previous year, the assessee earned long term capital gain by selling a property situated at 1/1308, Malviya Nagar, Jaipur for a consideration of Rs. ....
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....n-application of mind to relevant material, an incorrect assumption of facts which is prejudicial to the interest of the revenue and hence liable for revision under section 263 of the Act. The Hon. Supreme Court in the case of Malabar Industrial Limited V/s CIT 243 ITR has held as under- "... An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. In the same category fall orders passed without applying the principles of natural justice or without application of mind." 11. In view of the above, I hold the assessment order u/s 143(3) dated 16-10-2017 for A.Y.2015-16 passed by the Assessing Officer to be erroneous as well as prejudicial to the interests of revenue in terms of provisions of clause (a) and clause (b) of Explanation-2 to Sec.263 of the Act. The order passed by the Assessing Officer, therefore, deserves to be set aside on the issue of deduction of Rs. 36,70,320/- u/s 54 of the Act. Accordingly, the assessment order is set aside to be made de novo in the light of the observation made in this order." 11. We have heard the rival contentions and perused the material available on recor....
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....unt of the capital gain and the cost of the new asset shall be charged under section 45 as the income of the previous year; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase or construction, as the case may be, the cost shall be nil; or (ii) if the amount of the capital gain is equal to or less than the cost of the new asset, the capital gain shall not be charged under section 45; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase or construction, as the case may be, the cost shall be reduced by the amount of the capital gain." 12. On a plain reading of the aforesaid provisions, it is provided that benefit under section 54 is available to an individual who has transferred a long term capital asset being a 'residential House Property' and the assessee has either purchased one residential house in India within a period of one year before or two years after the date of transfer of the original asset or constructed one residential house in India within a period of three years ....