TaxTMI 
TaxTMI 
2014 (10) TMI 1073
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.... assessee and by recording incorrect facts and findings. 2. That in any case and in any view of the matter, action of Ld. CIT(A) in not quashing the impugned assessment order framed by Ld. AO in the status of assessee as 'HUF' which is contrary to law and facts, unjustified and void ab initio. 3. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in disallowing the deduction of Rs.1,81,15,551/- u/s 54B of the Act and that too without appreciating the facts and circumstances of the case and by recording incorrect facts and findings. 4. gard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not allowing the deduction U/S 54F fully as claimed by the assessee on both the residential houses and has further erred in sustaining the action of Ld. AO in allowing the deduction for only one investment i.e. 18,91,250/- that too without any basis. 5. That in any case and any view of the matter, action of Ld. CIT(A) in confirming the action of Ld. AO in denying/reducing the deduction u/s 54B and 54F on the second house property ....
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....of hearing. 5. That in any case and any view of the matter, action ofLd. CIT(A) in confirming the action of Ld. AO in denying the deduction uls 54B and framing the impugned assessment order is contrary to law and facts, void ab initio, beyond jurisdiction, and without giving adequate opportunity of hearing, by recording incorrect facts and findings and the same is not sustainable on various legal and factual grounds. 6. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not reversing the action of Ld. AO in charging the interest U/S 234A and 234B of the Income Tax Act, 1961. 7. That the appellant craves the leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing and all the above grounds prejudice to each other. 4. The facts of the case are not in dispute by both the parties, therefore, need not repeated here for the sake of convenience. 5. Ld. Cousnel of the assessee has filed the synopsis in support of his claim, which is reproduced as under:- "The issue in the present appeal is regarding the Assessment Order passed by Ld. A.O. as HUF, which he was d....
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....lace under family settlements and submitting zamabandi and intkal i.e. mutations. PB 133 is the family tree and mentions as to how the impugned properties were acquired in different years. PB 90 is the details of agricultural land and the year and the manner of acquisition which would show that the impugned land was acquired in 1994, through court decree from father Sh. Ram Kishan Coudhary and the father Sh. Ram Kishan Chaudhary also obtained the same either through court decree or purchased, obtained the same by way of gift from father and Will of the brother. PB 1-2, 3-6, 7-8 are the mutations of the properties owned by Mr. Ran Singh -grandfather of the appellant and details of which are on slip prior to PB 1. PB 131-132 is the submissions before Ld. CIT (A) submitting that there are several judicial decisions holding that property acquired by the assessee in the circumstances constitute individual property. PB 120-122, 123 is submission to Ld. CIT (A) on these lines. PB 141-142 are the submissions to Ld. CIT (A) on this issue PB 148-149 is the counter comments from Ld. A.O. mentioning that since assessee showed this ....
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....e Constitution of India: "No tax can be collected except by authority of law" *Ramlal vs Rewa Coalfield Ltd AIR 1962 SC 361: " The State authorities should not raise technical pleas if the citizens have a lawful right is being denied to them merely on technical grounds. The state authorities cannot adopt the attitude which private litigants might adopt." *56 ITR 67 (SC) Read at Page 74 last 7 lines of Para 1 *81 ITR 303 (Del.) Read at Page 304. *SDS Mongia vs CBDT 211 CTR 357 (Del) *128 ITR 486 (Guj.) *107 ITR 63 (Guj.) * S.R. Koshti 276 ITR 165 (Guj) As per law there can be no agreement between assessee and A.O., any reasoning adopted by Ld. A.O. that addition was based upon assessee agreement has to be excluded from the order. After excluding it, if there is no basis at all to sustain any of the addition made by A.O., the same has to be deleted. Srikant G. Shah vs ITO, (2007) 108 ITD 577 (Mum.) 1) Pullangode Rubber Produce Co. Ltd. vs State of Kerala and Anr. 91 ITR 18 (SC) It was held by the Hon'ble Supreme Court that even if the assessee f....
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....nder section 10(23C). The department should not take advantage of the ignorance of the assessee as per the CBDT Circular No.14 (XL-35)/1955, dated 11-4-1955, quoted in Parekh Bros. v. CIT[1984] 150 ITR 105 (Ker.). Such submission was made during the course of assessment proceeding it self and it was not necessary to revise the return and that the decision of supreme court in the case of Goetze would not be applicable in the instant case as held:- EMERSON NETWORK POWER INDIA (P) LTD. vs. ACIT 122 TTJ 67 (MUM) (Refer PB 257 - 72) Business expenditure- allowability- claim made at the time of assessment- claim not made in original return nor made by way of valid revised return but made in the course of assessment - AO was obliged to give due relief to assessee or entertain its claims its claims if admissible as per law even though the assessee had not filed revised return- Legitimate claim of assessee should not be rejected on technical grounds-Chicago Pneumatic India Ltd. vs. Dy. CIT (2007) 15 SOT 252 (Mumbai) followed. CIT vs. RAMCO INTERNATIONAL (2009) 221 CTR (P&H) 491 : (2009) 180 TAXMAN 584 : (Refer PB 89 - 290) Deduction under s. 80-I....
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....led in the status of HUF was sustained. It has been held in the case of Sanjay Tandon vs. ACIT 119 TTJ 277 (PB 144) that it is open to an assessee to challenge and claim in appeal that it should be assessed in different status. It has been held in Karanbir Singh vs. ITO 14 TTJ 528 (Chd.) that capital gain cannot be assessed as individual status if the land in question belonged to HUF. (PB 145-146) In the case of Ram Saran Pahalwan vs. ITO 2 TTJ 80 (Cal.), it was held that assessee has to be computed in the correct status as per law. (PB 143-144) In CIT vs. K. Venkatesh Dutt 319 ITR 331 (Kar.), it was held that assessee can always show the bona fide mistake in the return filed. (PB 164-168) Adverse observations of Ld. A.O. are met as under:- A.O. has mentioned at Page-3 of the Assessment Order that it was the HUF, which declared income from capital gain in its return and has not disputed for quite some time and that assessee has declared the interest received as HUF income. In reply it is submitted that there can be no estoppels against law and if assessee can show that there can be no capital gain in its hands as the pr....
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....rocessed as such. Had the return of income of the year under consideration been not taken in scrutiny, the status would be continued as such i.e., of HUF. Further, it is an established practice of throwing individual property in the common Hotch Pot of the HUF. The circumstances especially in the filing of the return in HUF status show that Sh. Ramneek Chaudhary by necessary implication had treated his so called individual property to be of HUF. After having done so, he cannot be heard to change stand and claimed the individual status." 7. We have heard both the parties and perused the records, especially the orders of the revenue authorities and Paper Book and Synopsis filed by the assessee. 8. With regard to ground no. 4 relating to deduction u/s 54-F fully as claimed by the assessee is concerned, Ld. Counsel of the assessee fairly conceded that this issue is covered in favor of the Revenue by the decision of the Punjab and Haryana High Court in the case of Pawan Arya vs. CIT in IT Appeal No. 613 of 2010 vide order dated 13th December, 2010 reported in (2011) 237 CTR (P&H) 210 wherein the Hon'ble Court has adjudicated the matter as under:- "2. The assessee....
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.... not independent properties and a factual finding has been recorded that the two apartments which were claimed to be exempted against sale consideration were situated side by side and it was also stated by the builder in that case that he has effected modification of the flats to make it as one unit by opening the door in between two apartments. On these facts, the Hon'ble High Court has observed that the fact that at the time when Inspector inspected the premises, the flats were occupied by two different tenants is not the ground to hold that apartment is not one residential unit. The fact that the assessee could have purchased both the flats in one single sale deed or could have narrated the purchase of two premises as one unit in the sale deed is not the ground to hold that the assessee had no intention to purchase two flats as one unit. From these observations of Hon'ble High Court, it is clear that while rendering the decision they have kept in mind that the purchase of two flats in the same building which were united for living of the assessee by making necessary modifications made the residential unit as one and, thus, that case could not be applied to the facts of the case ....