2023 (1) TMI 772

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....5.06.2019 passed by the Ld. CIT (Appeals) is erroneous and bad in law and that the case falls in the exception laid down in Para 10(c) of the Circular No. 3/2018 dated 11.07.2019. 2. On the facts and circumstances of the case, the Ld. CIT (Appeals) has erred in deleting the addition based on additional evidence provided by the assessee without calling for Remand Report from the Assessing Officer as mandated by Rule 46A of the Income Tax Rules." 3. Brief facts of the case are that, the return of income u/s 139(1) of the Act filed declaring gross total income of Rs. 1,96,640/- after claiming exemption u/s 54 of the Act of Rs. 1,02,78,673/-. The capital gain arising to the assessee in the original return were claimed to be reinvested by the....

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....d the parties perused the material available on record and gave our thoughtful consideration. 8. The Ld.CIT(A) while deciding the appeal of the assessee has elaborately considered the facts of the case and made following observations. "5.2 The relevant facts of the case are that the assessee filed a return of income on 29.08.2014 declaring an income of Rs. 1,.86,640/-. The AO accepted the returned income after scrutinizing the case u/s 143(3) of the Income Tax Act vide order dated 13.06.2016. 5.3. However, the AO issued notice u/s 154/155 of the Income Tax Act on 04.05.2018. The AO took note of the fact that the exemption of Rs. 1,02,78,673/- u/s 54 of the Act was claimed and allowed in this case. The facts of the case are that the ass....

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.... the appellant claimed that the order passed u/s 154 is null and void. Further, the appellant took a plep that the issue involved in this case is highly debatable and therefore, the same is not covered by the provisions of section 154 of the Act. In this regard, the appellant has relied on the decision of Hon'ble Supreme court in the case of T.S.Balram Vs. Volkart Brothers, 82 ITR 50(SC). The appellant highlighted following facts to impress upon that the issue is debatable: a) The appellant purchased the flat in the residential project of M/s IREO VICTORY VALLEY PVT LTD vide agreement dated 05.07.2011 attached on page (16-44 of Ann 'A'). An examination of the same would reveal that the Builder was yet to construct the flat. Th....

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....ld by the AO or the appellant has purchased a right in the apartment (to be constructed) at Gurgaon from a builder as claimed by the appellant? I have gone through the apartment buyers agreement dated 05.07.2011 with M/s IREO Victory Valley Pvt. Ltd. The agreement clearly highlights that on the date of agreement, the builder was in possession of land and construction was to be made in phases in future. The appellant has made payment for this property starting from FY 2011-12 to FY 2014-15. Accordingly, I find that the decision of AO to treat the investment in property at Gurgaon as an instance of purchase in June 2010 is a debatable issue and therefore, the AO is wrong in deciding this issue by invoking the provisions of Section 154 of the ....