TaxTMI 
TaxTMI 
TaxTMI 
2023 (2) TMI 1009
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....appellant craves leave to add, amend or alter the aforesaid grounds of appeal at the time of hearing, if the need arise." 3. The relevant material facts, as culled out from the material on record, are as follows. Learned Principal Commissioner of Income Tax, called the case records of the assessee and on examination of the same, it was noticed that the assessee has filed his return of income on 29.11.2014 declaring total income of Rs.77,19,390/-. During the year under consideration, assessee has sold a land at Khatodara (Block No. 187+188), Surat vide sale deed No. 5865 dated 23.05.2013 with one other co-owner at Rs.3,56,99,100/- in which assessee's share was Rs.1,78,49,550/-. Against this sale consideration, assessee has shown LTCG of Rs.1,69,49,579/- and after claiming exemption u/s 54F to the extent of Rs.1,20,08,843/- offered LTCG of Rs. 49,40,736/- in return of income (ROI) filed for AY 2014-15. Later on, case-of the assessee was manually selected for scrutiny and assessing officer has passed assessment order on 23.12.2016 and assessed income at Rs.78,44,860/- after treating agriculture income to the tune of Rs.1,25,470/- as income from other sources. 4. Therefore, Ld. P....
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....perties mentioned in Show cause notice dated 16.12.2016 were open plots and assessee was not having any single residential property during the year under consideration. Therefore, he is eligible to claim exemption u/s 54F of the Act. 6. However, Ld. PCIT rejected the contention of the assessee and observed that the assessee has suo moto stated in his reply to show cause notice date 16.12.2016 that assessee's business is the purchase and sale of the immovable properties. When during the time of assessment proceedings, assessee has admitted that his business is to purchase and sell the immovable properties, it was imperative on the part of the Assessing Officer to carry out inquiry and verification regarding the fact that: i. Whether the property in question was assessee's capital asset or not? ii. Whether the said transaction is part of the assessee's business activity or not? iii. Whether the sale consideration receipt was assessee's business receipt or not? As AO failed to verify these facts, therefore, Ld. PCIT noted that assessment order passed by the AO is erroneous and prejudicial to the interest of the revenue as per Explanation 2(a) of section 263 of ....
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....56,99,100/- in which the assessee's share was at Rs.1,78,49,550/- and after claiming exemption u/s 54F to the extent of Rs.1,20,08,843/-, the assessee offered long term capital gains of Rs.49,40,736/- in his return of income filed for the year under consideration. The Ld. counsel stated that Ld.PCIT noted that assessee has more than two residential properties and during the year assessee has claimed exemption u/s 54F to the tune of Rs.1,20,08,843/-, which was required to be disallowed and assessee himself has stated that assessee is dealing in real estate, construction business and in the course of the real estate business, the assessee purchased land of open plot, dilapidated properties and other construction / development and sold the same. As per Ld. PCIT, since the residential properties mentioned in the show cause notice dated 16.12.2016 was assessee's stock-intrade in the assessee's balance-sheet. The Assessing Officer was required to take cognizance to the fact that assessee's business to purchase and sale of immovable properties, which was admitted by assessee and this fact also established that assessee has shown immovable as stock-in-trade in assessee's balance-sheet. The....
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....de shown in the Balance-Sheet are getting reflected on page 49 of the paper book on which assessee has not claimed deduction under section 54F of the Act. Therefore Ld. Counsel contended that during the assessment stage the Assessing Officer has raised the relevant question and the assessee has replied the question raised by the Assessing Officer and having applied his mind, the Assessing Officer passed order u/s 143(3) of the Act and hence there is no lack of inquiry and rather it is kind of full inquiry in assessee's case under consideration. The Assessing Officer, having examined the relevant details and explanation of assessee's claim, the same was allowed, therefore, such assessment order is neither erroneous nor prejudicial to the interest of revenue. 11. The Ld. Counsel further stated that in case of co-owner of the land, that is, in case of Shashiben Chandrakant Fudhnawala, the co-owner has filed his return of income showing computation of total income and also shown capital gains in respect of her share, which was accepted by the Department without passing scrutiny assessment u/s 143(3) of the Act. That is, after filing the return of income, the Department did not raise t....
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....ntire details were submitted during assessment stage before Assessing Officer, however, Assessing Officer has not applied his mind to the facts that whether asset is capital asset or stock-in-trade. Hence, this aspect has not been verified by the Assessing Officer. Therefore, Assessing Officer has failed to conduct the necessary inquiry in respect of deduction u/s 54F of the Act. Hence, order passed by Assessing Officer is erroneous and prejudicial to the interest of revenue. The Ld. DR also submitted that judgment of Hon'ble jurisdictional High Court in the case of Shreeji Prints (P). Ltd. (supra) is distinguishable on facts, as this case relates to issue of verification of unsecured loan and in this case the complete details were filed before the Assessing Officer in respect of loan / unsecured loan and Assessing Officer has examined such unsecured loan with the help of ledger account, copy of acknowledgement of income tax return and the bank statements were filed. Therefore, in this case, the entire details were submitted before the Assessing Officer and the Hon'ble jurisdictional High Court took the view in favour of assessee. However, in the assessee's case under consi....