TaxTMI 
TaxTMI 
2015 (5) TMI 1232
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....counted cash receipt of Rs. 15,20,000/- and unaccrued cheque receipt of Rs. 16,00,000/- on account of sale of a land at Ambegaon. However, the assessee had not disclosed any capital gain in the original return of income filed. The Assessing Officer further noted that the assessee in its computation of total income filed in response to notice u/s.153A has claimed deduction of Rs. 31,20,000/- u/s.54F of the I.T. Act which was not made at the time of filing of original return on 28-09-2009. He observed that this enhanced claim amounting to Rs. 31,20,000/- u/s.54F is claimed against the disclosure made by the assessee during search action u/s.132 of the I.T. Act. Thus, the assessee on one hand had honoured his disclosure of Rs. 31,20,000/- as capital gain on sale of land including the accounted and unaccounted consideration and on the other hand he has claimed deduction u/s.54F of the Act against the entire disclosure of Rs. 31,20,000/- treating the same as his capital gain and thereby claiming deduction on the same. Thus, according to the Assessing Officer, the assessee has not offered any additional income to tax during the year under consideration. According to the Assessing Officer....
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....opening of assessments in search cases. The only difference is that notice u/s.148 is replaced with notice u/s.153A. He therefore observed that the ratio of decision of Hon'ble Apex Court in the case of Sun Engineering Works Pvt. Ltd., (Supra) and Chettinad Corporation Pvt. Ltd., (Supra) would apply with equal force to such proceedings also. Rejecting the various explanations given by the assessee and relying on the decision of Hon'ble Delhi High Court in the case of CIT Vs. Anil Kumar Bhatia reported in 211 Taxmann 453, the decision of the Jodhpur Bench of the Tribunal in the case of Suncity Alloys Pvt. Ltd., reported in 124 TTJ 672 and the decision of the Delhi Bench of the Tribunal in the case of Charchit Agarwal Vs. ACIT reported in 129 TTJ 438 he upheld the action of the Assessing Officer rejecting the claim of deduction u/s.54F of the I.T. Act. 5. Aggrieved with such order of the CIT(A) the assessee is in appeal before us with the following grounds : "The following grounds are taken without prejudice to each other - On facts and in law, 1] The learned CIT(A) erred in confirming the disallowance of exemption u/s 54F of Rs. 31,20,000/- claimed by the assessee against the l....
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....disclosed in the course of search, the said claim was allowable even in view of the said decision of Hon'ble Apex Court. 2.4] The learned CIT(A) erred in not appreciating that the various decisions relied upon by her were distinguishable on facts and hence, the same were not applicable to the case of the assessee and therefore, the claim of the assessee could not be denied. 3] The learned CIT(A) further erred in not appreciating that the gain on sale of land was assessable as capital gains and hence, the exemption u/s 54F was allowable to the assessee. 3.1] The learned CIT(A) ought to have appreciated that the unaccounted income earned by the assessee was against transfer of capital asset and hence, it was long term capital gain and therefore exemption u/s.54F should have been allowed in respect of the same. 3.2 The learned CIT(A) failed to appreciate that the fact that the unaccounted income of Rs. 31,20,000/- was earned on account of consideration received against transfer of land was also accepted by the learned A.O. and hence, the said income was to be assessed under the head capital gains and not as income from other sources and thus, the exemption u/s.54F was allo....
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....assessee did not own more than one residential houses other than the new asset on the date of transfer of the residential asset. The assessee has not purchased any residential house other than the new asset within a period of one year after the date of transfer of the original asset and has not constructed any residential house other than new asset within a period of 3 years after the date of transfer of the residential asset. He submitted that the Assessing Officer rejected the contention of the assessee on the ground that the assessee has not declared capital gain in the original return of income and therefore, in view of the decisions of the Hon'ble Supreme Court in the case of Sun Engineering Works Pvt. Ltd., (Supra) and Chettinad Corporation Pvt. Ltd., (Supra) the assessee cannot make a new claim which was neither claimed nor allowed in the original assessment. 6.2 He submitted that the Ld. CIT(A) upheld the action of the Assessing Officer by observing that the provisions of section 153A are akin to the provisions of section 147. He submitted that there is a material difference between the language used in provisions of section 147 and provisions of section 153A. He submitted....
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....income from other sources". The character remains same. Since the assessee complied with the conditions laid down in provisions of section 54F of the I.T. Act, therefore, the assessee should be allowed to deduction u/s.54F to the extent of Rs. 31,20,000/-. 7. The Ld. Departmental Representative on the other hand heavily relied on the order of the CIT(A). 8. We have considered the rival arguments made by both the sides, perused the orders of the Assessing Officer and the CIT(A) and the Paper Book filed on behalf of the assessee. We have also considered the various decisions cited before us. There is no dispute to the fact that during the course of search documents relating to sale of land was found from the business cum residential premises of the assessee according to which assessee has received an amount of Rs. 15,20,000/- in cash and Rs. 16 lakhs in cheque being 40% share of his holding in the landed property. Although the assessee has filed his original return of income on 28-09-2009, however, no capital gain on account of such sale of land was declared in the original return. The assessee in the return filed in response to notice u/s.153A declared the long term capital gain a....
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....ction u/s 80IB(10) of the Act in the course of an assessment made u/s 153A(1)(b) of the Act. On this aspect, the learned Departmental Representative submitted that the assessment in cases of search action or requisition are made u/s 153A or 153C of the Act in order to assess undeclared incomes and such provisions are for the benefit of the Revenue and therefore a claim u/s 80IB(10) of the Act cannot be considered in such proceedings, especially when such a claim was not made in the return of income originally filed under section 139 of the Act. In this regard, the learned Departmental Representative has referred to the judgment of the Hon'ble Supreme Court in the case of CIT vs. Sun Engineering Works Pvt. Ltd., 198 ITR 297 (SC) to point out that even in the cases of re-assessment u/s 147/148 of the Act fresh claims cannot be raised by the assessee. Secondly, it is pointed out by the learned Departmental Representative that even if the claim was to be considered then it was not allowable because the requisite condition that the return of income has to be accompanied by the prescribed audit report has not been complied with by the assessee. On the basis of aforesaid reasons, the ....
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.... shall be allowed the deductions specified in Chapter VIA of the Act, of course subject to fulfillment of the respective conditions. Therefore, we are unable to subscribe to the stand of the CIT(A) to the effect that the benefits of Chapter VIA of the Act, which inter-alia include section 80IB(10) of the Act, are not applicable to an assessment made under sections 153A to 153C of the Act. In our considered opinion, the phraseology A.Ys. 2008-09 to 2010-11 of section 153A r.w. Explanation (i) as noted above, does not support the premise arrived at by the CIT(A) and accordingly, the same is rejected. Therefore, assessee's claim for deduction u/s 80IB(10) of the Act even with regard to the enhanced income was well within the scope and ambit of an assessment u/s 153A(1)(b) of the Act and the Assessing Officer was obligated to consider the same as per law. 15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16. The argument set-up by the learned Departmental Representative on the basis of the judgment of the Hon'ble Supreme Court in the case of Sun Engineering Works Pvt. Ltd. (supra), in our view, is also untenable havi....
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....the Hon'ble Supreme Court in the case of Sun Engineering Works Pvt. Ltd. (supra) does not help the Revenue in the present case." 11. We find the Pune Bench of the Tribunal in the case of B.G. Shirke Construction (Supra) has held as under : "12. Now, in so far as the assessments for assessment years 2007-08 and 2008-09 are concerned, the original assessments were pending on the date of initiation of search, and the same stand abated in terms of the second proviso to section 153A(1) of the Act. Following the reasoning laid down in the case of All Cargo Global Logistics Ltd. (supra), in so far as assessment years 2007-08 and 2008-09 are concerned, the Assessing officer retains the original jurisdiction as well as jurisdiction conferred on him u/s 153A of the Act. In this context, the preliminary issue is as to whether the scope of assessments u/s 153A(1)(b) of the Act for assessment years 2007-08 and 2008-09 can include consideration of assessee's plea to exclude income on account of retention money, considering the fact the returns of income filed by the assessee for assessment years 2007-08 and 2008-09 u/s 139(1) of the Act did not contain any such claim. In the assessmen....