9911796707
TMI Blog2016 (2) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... of the revenue. 2. The brief facts are that, assessee is an individual who has shown income from salary, capital gain and income from other sources. The return of income was filed on 19.07.2010 and such a return of income was subjected to scrutiny proceedings and assessment order u/s 143(3) was passed on 18.03.2013, accepting the return of income of Rs. 19,17,408/-. Later on, the Ld. CIT on the perusal of the assessment records found that assessee has claimed exemption u/s 54/54F of Rs. 47,27,400/- in the computation of long-term-capital-gain. He noted that, during the relevant financial year 2009-10, the assessee had sold 50,000 unquoted shares on 30.05.2009 resulting into net long-termcapital- gain of Rs. 29,75,004/-. Apart from that, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le for exemption u/s 54F against house property at Maitry Park and to that extent, exemption u/s 54F against LTCG from sale of shares of Rs. 29,75,004/- was not proper. 3. In response to the show cause notice dated 21.01.2014, the assessee submitted that, during the course of the assessment proceedings, 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 resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ils and has passed the order without making any proper investigation or enquiries, therefore, the assessment order is erroneous in so far as it is prejudicial to the interest of the revenue and accordingly, he set aside the assessment order and directed the AO to examine the said issue in detail. 6. Before us, the Ld. Counsel after reiterating the entire facts, drew our attention to various notices and queries raised by the AO during the course of the assessment proceedings with regard to the details of LTCG earned and the purchase of the properties / flats while examining the claim of exemption u/s 54/54F. He submitted that once, the AO has specifically called for the details and assessee has in response filed all the documentary evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 interest of the revenue. Both the conditions should be fulfilled simultaneously. In other words, if either of the conditions is lacking then Ld. CIT cannot take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lastly, working of sale price along with documentary evidence of sale of shares. Thus, for the third time, the AO has required the assessee to submit all the details of LTCG as well as the purchase of immovable property and exemption claimed by the assessee. In response to this notice, the assessee vide letter dated 17th January, 2013 had again furnished all the said details. After examining all these details and documentary evidences, the assessee's claim for exemption u/s 54/54F on the LTCG has been accepted by the AO. Thus, from the records, it cannot be inferred at all that AO has not applied his mind or has simply allowed the claim without verifying the facts and documentary evidence. All these details and evidence which were filed be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to the AO to examine it afresh. Such an exercise by the CIT cannot be appreciated, 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. The Ld. CIT after examining the records and the contentions of the assessee before him, has to give a specific finding and then he can set aside the assessment order, which here in this case has not been done. Thus, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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