TaxTMI 
TaxTMI 
2024 (9) TMI 273
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.... issued by the Ld. AO as no valid notice was served upon the appellant under section 148 of the Act and, hence the reassessment proceedings are null and void. 4. The Ld. CIT(A) erred in confirming the action of the Ld. AO in making addition of Rs. 2,00,00,000/- in respect of capital gains on sale of immovable property 5. The Ld. CIT(A) erred in not even allowing the deduction of indexed cost of acquisition while computing capital gains and in not treating the capital gains as long term capital gains. 6. The Ld. CIT(A) erred in not allowing deduction u/s 54 of the Act in respect of investment in new residential house property. 7. The Ld. AO erred in initiating notice of penalty u/s 274 read with section 271 and 271F of the Act dated 26.12.2017. The Appellant prays that the penalty proceedings u/s 274 read with section 271 of the Act be dropped. 8. The Ld. CIT (A) has erred upholding the action of the Ld. AO in the levying interest u/s 234A, 234B and 234C of the Act." 3. Brief facts of the case are that assessee is a non-resident. She did not file her return of income for the year under consideration. From the data available with the Department, Ld. Assessing Officer noted....
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.... of the view that there was no taxable long-term capital gains and hence it was not necessary to file the return for the year under consideration. Further, it was submitted that assessee had made an application with the office of ITO(IT)-3(1) for issuance of certificate u/s. 197 of the Act which was issued on 17.03.2010 for 'Nil' TDS on the impugned sale transaction. It was submitted that by making this application, assessee had disclosed the impugned sale transaction of the immovable property and thus there was no intention to conceal any income on this account by the assessee. 6.1. For the non-compliance of statutory notices issued by the Ld. Assessing Officer, it was submitted that notices were not received by the assessee since the address with the Department was of Hong Kong, namely Flat D - 12, F Wing, On Court 24, Homantin Hill Road, Hammantin, Hong Kong. Assessee came to know for the first time that the re-assessment proceedings u/s. 147 r.w.s. 144 had been concluded from the information from various mutual fund AMCs about the initiation of recovery proceedings u/s. 226(3), dated 26.03.2018. 6.2. According to the Ld. Counsel, the sole basis of not allowing the claim of ....
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....usband Mr. Sameer Belani having account no. 0000005133702520 maintained with M/s DNP Paribas. 9.1.2 The assessee had purchased an immovable property being residential house (i.e. Flat No. 14, 8th floor, Nav Reshma Apartment CHS Ltd., Pali Hill. Bandra- West, Mumbai-400050) from Mr. Samir Narain Bhojwani vide registered deed of sale dated 10.05.2010 for a consideration of Rs. 10,00,00,000/- and registration charges of Rs. 30.900/- and stamp duty of Rs. 49,82,600/- was mentioned on the said deed. As per the copy of bank statements submitted, the assessee had made following payments for purchase of this new residential house property: S. No. BNP Paribas Bank Account No. Name of the Account Holder/s Date Payment Amount in Rs.) 1 0900905133702520 Sameer Belani Seema Heera 05.04.2010 1,00,00,000/- 2 0900905133702520 Sameer Belani/ Seema Heera 05.05.2010 1,00,00,000/- 3 0900905133702617 Sameer Belani Seema Heera TV Products (HK) Ltd. 05.05.2010 8,00,00,000/- Total Amount of Purchase Consideration 10,00,00,000/- 9.1.3 It is also seen from various documents/details submitted by the assessee that the name of the assessee is also shown as Mrs. Kanchan Sameer Belani. ....
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....f this section, that is to say, i. if the amount of the capital gain [is greater than the cost of the residential house)] so purchased or constructed (hereafter in this section referred to as the new asset)), the difference between the amount of the capital gain and the cost of the new asset shall be charged under section 45 as the income of the previous year, and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase or construction, as the case may be, the cost shall be nil, or ...." On the basis of details available on record the following facts are emerges: (1) The assessee is an individual. (ii) The assessee had earned long term capital gain of Rs.93,17,462/- on sale of long term capital assets as the property which was sold had been held by the assessee for more than 03 years. (iii) The assessee had made investment of Rs.10,00,00,000/- during F.Y. 2010-11 for purchase of new residential house and the registration of new residential house property was made on 10.05.2010 which are falls within the stipulated time as available u/s 54 of the Act and it also before the due date ....
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....e benefit in her return but made all the efforts by furnishing the required details with corroborative documentary evidences before the First Appellate Authority as well as before the Ld. Assessing Officer in the remand proceedings. These are admitted facts and the denial of the claim is only on technical grounds that assessee had not furnished return of income claiming such deduction. Substantively, when law confers benefit on the assessee under statute, it cannot be taken away by the authority on mere technicalities. In this regard, reference is made to Article 265 of the Constitution of India in terms of which it is a settled position of law that no tax can be levied / recovered without the authority of law. 9.2. Similar issue came up before the Hon'ble High Court of Jammu and Kashmir in the case of Sneh Lata Jain v. CIT [2004] Taxman 156 (J&K) wherein Hon'ble court held that assessee being entitled to exemption u/s. 54F on the evidence produced before the Revisional Authority, the Revisional Authority ought to have considered the matter instead of rejecting the petition on technical grounds. According to the Hon'ble Court assessee being not liable to tax, imposition of tax on....