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TMI Blog2016 (2) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... firstly, he should give specific finding as to why such a contention raised by the assessee is not correct or divorced from the facts and material records and secondly, how on the facts the order of the AO is actually erroneous and also prejudicial to the interest of the revenue. Simply mentioning the phrase in the order that the “assessment order is erroneous and so far as it is prejudicial to the interest of the revenue” is not sufficient - Decided in favour of assessee X X X X Extracts X X X X X X X X Extracts X X X X ..... edings, the assessee vide various letters had submitted all the details of sale and purchase of shares; proof of purchase and sale for Airoli property; property documents for purchase of flat at Dosti along with source thereof; proof for advance given for the property at Hiranandani Maitry Park along with the source thereof; bank statement; and working of LTCG. Thus, it was submitted that, all these details were before the AO and that to be in response to the various queries raised during the course of the assessment proceedings from time to time. Apart from that, the assessee had also annexed all the documents whereby, the assessee had submitted the details along with the reply relating to the capital gains which has been tabulated by the assessee in the following manner:- 4. Thus, it was submitted that, there has been proper application of mind by the AO and, therefore, it cannot be held that impugned assessment order passed by the AO is without any application of mind or is erroneous. It was further submitted that, the assessee had purchased the property at Dosti on 06.05.2009 which was registered on 18.05.2009 for a consideration of ₹ 1,09,25,395/- against which exemptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd compilation of separate paper book. 7. On the other hand, Ld. DR submitted that, application of mind by the AO has to be shown either in the assessment order or from the records. There is no specific application of mind on section 54F. The Ld. CIT has merely directed the AO to examine the issue of exemption of claim u/s 54F afresh and in accordance with the law after giving due opportunity to the assessee. Thus, there is no prejudice caused to the assessee. 8. We have carefully considered the rival submissions, perused the relevant finding given in the impugned order as well as material placed on record. The Ld. CIT has set aside the assessment order passed u/s 143(3) dated 18.03.2013 on the ground that assessee's claim for exemption u/s 54/54F need to be properly examined by the AO as he has not carried out any proper enquiry or investigation of such a claim and has not verified the facts and the source of funds for making the investments in new assets. It is a trite law that the perquisite condition to exercise the revisionary jurisdiction u/s 263, by the Commissioner are that, firstly the order passed by the AO is erroneous and secondly, it should be prejudicial to the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led before the AO have also been placed in the paper book. If from the records, it is found that, the AO has raised specific query, which has been responded to by the assessee by furnishing the details and documentary evidence, then presumption is that, AO has duly applied his mind on the issue involved and even if such an issue does not find mention in the assessment order, then also it cannot lead to a conclusion that order has been passed by the AO without application of mind. On these facts, it cannot be held that the order passed by the AO accepting the assessee's claim is erroneous at all. 9. Now whether it is prejudicial to the interest of revenue or not. Before the Ld. CIT as well as before us the assessee had duly demonstrated that the assessee had claimed exemption against property purchased at Dosti and another property at Hiranandani Maitry Park was under construction for which only advance was given and assessee had not acquired any possession of the said property. Otherwise also, the said property was jointly held by his mother who was the first holder and the assessee was the second holder. Once the assessee has invested the entire LTCG arising from the sale of shar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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