TaxTMI 
TaxTMI 
2022 (12) TMI 1118
X X X X Extracts X X X X
X X X X Extracts X X X X
....ollowing directions: - I. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 02.10.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2021, if any, shall become available with effect from 03.10.2021. II. In cases where the limitation would have expired during the period between 15.03.2020 till 02.10.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 03.10.2021. In the event the actual balance period of limitation remaining, with effect from 03.10.2021, is greater than 90 days, that longer period shall apply. ........... " 2.1. Thus there is no delay in filing the above appeal by the assessee. 3. The brief facts of the case is that the assessee is an individual who is deriving income from house property, Long Term Capital Gain and Income from other sources. For the Assessment year 2015-16, the assessee filed his Return of Income on 31.10.2015 declaring total income of Rs. 16,43,52,760/-. The return was selected for scrutiny assessment and regular assessment u/....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... purchase of the new property. The assessee sold Ambli Gam property on 05.04.2020 as an open plot of land with no structure existing thereon. Therefore the property cannot called as a house or residential property. Thus the assessee pleaded that it had submitted all required details before the Assessing Officer before passing the final assessment order. Therefore the order passed by the Assessing Officer is not an erroneous order and not prejudicial to the interest of the Revenue. Therefore the assessee pleaded to drop the Revision proceedings initiated u/s. 263 of the Act. 4. The contention of the assessee has been properly considered by the ld. PCIT and the same is rejected for the following reasons: 4.4 The contentions of the assessee has been gone through but the same do not seem to be tenable in view of the following reasons:- (i) It is submitted by the assessee that the house named Ambali Gam, Tal House having book value of Rs.15,73,600/- as on 31.03.2015 in assessee's books of accounts was sold on 04.03.2020 as an open plot of land. It may be noted that the sale deed specified the description of the property as on the date of the transfer only i.e. 04.03.2....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he date on which the transfer took place purchased, or has within a period of three years after that date constructed, one residential house in India (hereafter in this section referred to as the new asset), the capital gain shall be dealt with in accordance with the following provisions of this section, that is to say,- (a) if the cost of the new asset is not less than the net consideration in respect of the original asset, the whole of such capital gain shall not be charged under section 45; (b) if the cost of the new asset is less than the net consideration in respect of the original asset, so much of the capital gain as bears to the whole of the capital gain the same proportion as the cost of the new asset bears to the net consideration, shall not be charged under section 45: Provided that nothing contained in this sub-section shall apply where- (a) The assessee, - (i) Owns more than one residential house, other than the new asset, on the date of transfer of the original asset; or (ii) purchases any residential house, other than the new asset, within a period of one year after the date of transfer of the original asset; or ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of inquiries or verification which should have been made, the opinion formed by the AO regarding allowbility of deduction u/s. 54F of the Act is premature as the same is based on incomplete evidences and inference so drawn is not proper. (iv) Further, with regard to case laws relied upon by the assessee, it is seen that in the case of CIT vs. Vam Resorts & Hotels Pvt. Ltd., the Hon'ble Allahabad High Court has held that where appeal before CIT(A) is pending on certain matters, such matters cannot be subject matter of revision by CIT. However, in the instant case, the matter of deduction u/s. 54F of the Act has not been litigated before CIT(A) therefore the facts of this case are distinguishable in view of Explanation 1(c) of section 263 of the Act. (v) Also, in the cases of CIT vs. Gabriel India Ltd & CIT vs. Design & Automation Engineers (Bombay) Pvt. Ltd, the Hon'ble Bombay High Court has observed that the AO had taken one of the two possible views and that the condition precedent for invoking jurisdiction under section 263 by the CIT did not exist. However, in the instant case, the AO has not inquired about the ownership of two residential houses by th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t is submitted that under the circumstances the claim of the appellant for deduction u/s. 54F was rightly put and the learned PCIT should not have disturbed the same by invoking his power u/s. 263 of the Act. 6.1. The ld. Counsel for the assessee reiterated the same submissions made before the Ld. PCIT and further brought to our notice reply filed by the assessee in response to 142(1) notice dated 26.07.2017 wherein the Assessing Officer vide Serial No. 6 "please justify the deduction claim in computation of capital gain along with supporting evidence". The assessee in his reply letter dated 03.08.2017 which is available at page no. 7 to 11 of the Paper Book as follows: (Point No. 6) You have asked to justify the deduction claimed in computation of capital gain with supporting evidences. In this connection, I have to state that the said details are furnished in Exhibit-II & III of this submission. Please refer the same. 6.2. The Ld. Counsel further submitted that the assessee made further details to the Assessing Officer vide his letter dated 16/08/2017 which is available at page no. 46 & 47 of the Paper Book. Thus the ld. Counsel submitted the A.O. after verificatio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....terest of Revenue which is correctly revised u/s. 263 of the Act by the ld. PCIT. Therefore the same does not require any interference. Thus the ld. D.R. pleaded to dismiss the appeal filed by the assessee. 8. We have given our thoughtful consideration and perused the materials available on record including the Paper Book filed by the assessee. It is seen that the assessment order passed by the Assessing Officer is without any details and no information about the claim of deduction u/s. 54F of the Act more particularly when the claim is to the extent of Rs. 3,96,79,796/- by the assessee. Though the Ld. A.O. asked the assessee to justify the deduction claimed in computation of capital gain along with supporting evidences through notice issued u/s. 143(2) of the Act and the assessee made simple rely which is extracted in Para 6.1 above. The same does not details about the already existing property details, other information. 8.1. Thus in our considered opinion that the Assessing Officer has not conducted necessary inquiry before allowing deduction u/s. 54F, but simply allowed the claim made by the assessee. Section 54F of the Act is not applicable, if the assessee at time of tr....