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2022 (10) TMI 226 - ITAT DELHIDisallowance of exemption u/s. 54 - Fresh claim before CIT(A) - before the AO the assessee could not make a claim for deduction otherwise than by filing a revised return - CIT-A deleted the addition - whether CIT(A) has erred in ignoring that the fact that, the intention of section 54 has always been to provide exemption if the assessee constructs one residential house in India in the event of capital gains arising from transfer of residential house and the amendment brought in Finance Act, 2014 is only a clarifying amendment and did not change the position of law? HELD THAT:- As case of assessee was picked up for limited scrutiny and one of the issues involved was sale consideration of property in ITR is less than sale consideration in Form 26QV. Para 3 of the assessment order specifically mentions that on 05.12.2016. Assessee was directed to show cause why sale consideration as shown in 26AS was not shown in ITR and why no income was offered as capital gain. Once the assessing officer had taken into consideration Form 26QV and the report under 26AS, which have to considered to be part of the returns of an assessee and the assessee has replied in detail to the query putting forth all the information about the transaction along with documents as to how no capital gain had arisen then it can not be a case that assessee had made claim beyond his return. Assessment is not only of the income but also involves considering claim of the exemption or deduction which flow with the assessee’s income. CIT(A) was very much in powers to consider the claim of the assessee which was left half way by the Ld. AO. Then, upon going through order of ld. CIT(A) it can be observed that Ld. CIT(A) has meticulously examined the claim of deduction u/s 54 of the Act in terms of eligibility and quantum. He specifically dealt with question if the sale proceeds can be used for purchasing property in Dubai and has rightly relied the judgment quoted by Ld. Sr. Counsel before this Bench wherein it was held that prior to amendment brought by Finance Act “No. 2, 2014 the benefit of exemption is available even if the house is purchased / constructed outside India. As examined the evidence on record which established that assessee purchased the residential plot in the name of himself and his wife and constructed residential house within the prescribed period. As with regard to the contention of Ld. DR that this aspect was required to be examined by ld. AO and he had no material before him then going by the grounds raised there is no ground of the appeal of the revenue that assessee had failed to prove construction of the house on the plot within prescribed period. Rather, Ld. CIT(A) has relied completion certificate bearing consultants signature dated 15.12.2017. There is no substance in the arguments raised on behalf of the Revenue and the Ld. CIT(A) had not fallen in error in extending benefit of deduction u/s 54 of the Act to the assessee. There is no substance in the grounds raised. The appeal of Revenue is dismissed.
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