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TMI Blog2016 (9) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. counsel being not borne out by the record. Then there is the question of whether the transferee has performed or was willing to perform his part of the contract (sec. 53A of the TP Act). If so, why is it that the payment was withheld, and for years, or given, as stated, to the assessee’s brother-in-law, and when? Answers to these and other related questions would decide whether the capital gain had indeed arisen to the assessee during the relevant previous year and, if not, when. The matter is accordingly restored to the file of the assessing authority for fresh adjudication with regard to whether any part of the capital gains on transfer of plot no. 99 arise to the assessee during the relevant year. The AO shall decide issuing definite findings of fact. - I.T.A. No. 2777/Mum/2014, I.T.A. No. 3256/Mum/2014 - - - Dated:- 8-8-2016 - SHRI SANJAY ARORA, AM AND SHRI PAWAN SINGH, JM For The Assessee : Shri Vijay Shah For The Revenue : Shri Debabrata Baidya ORDER Per Sanjay Arora, A. M.: These are cross Appeals, i.e., by the Assessee and the Revenue, arising out of the Order by the Commissioner of Income Tax (Appeals)-2, Thane ( CIT(A) for short) dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not withdraw her declaration of long-term capital gain (LTCG) supra, i.e., once returned, except per a revised return. In their view the gain had been correctly returned in-as-much as the assessee could not show as to why the sale proceeds had not been received during the relevant year (i.e., the previous year relevant to A.Y. 1995-96) or, per contra, why was the relevant property handed over to the buyer without receiving full consideration in its respect. The relief u/s. 54-F has also been restricted qua capital gain arising on only one plot of land (i.e., single capital asset), while the provision carries no such restriction. 3. We have heard the parties, and perused the material on record. It shall be relevant to, before we proceed to adjudicate the issues arising, recount the background facts of the case. The assessee returned her income for the relevant assessment year (A.Y.) on 23.03.2009, disclosing long-term capital gain (LTCG) on three plots of land, as under, claiming exemption u/s. 54F on the last two: (refer pg. 2 of the assessment order) (Amount in Rs.) Capital Asset LTCG Exemption u/s. 54F Show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gards the investment in the new residential house, reliance was placed for the purpose on the sum reflected in the assessee s books in its respect. The total investment up to 31.3.2010 (Rs.44.05 lacs), i.e., the last date for filing the return of income u/s. 139(4) for the current year, was taken into account for the purpose. Reliance toward the same was placed on CIT vs. Jagriti Aggarwal [2011] 339 ITR 610 (P H); Kishore H. Galaiya vs. ITO [2012] 137 ITD 229 (Mum); and Jagtar Singh Chawla vs. Asst. CIT (in ITA No. 4923/Del/2010 dated 30.6.2011), since affirmed in CIT vs. Jagtar Singh Chawla (in ITA No. 71 of 2012 dated 20.3.2013/copy on record). The proportionate capital gain, at 87.35%, applied, with reference to which exemption u/s. 54F is to be allowed, worked to ₹ 39.25 lacs, to which extent relief there-under was, accordingly, directed to be allowed. Aggrieved, both parties are in appeal, the assessee raising the following grounds: 1. The Hon'ble Commissioner of Income Tax(A) -II, Thane has erred in law and in facts by disallowing the claim of ₹ 13,42,670/- u/s.54F of the Income-tax Act, 1961 out of the total claim of ₹ 52,67,919/-. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish Paints India Ltd. [1991] 188 ITR 44 (SC)). The purview of the A.O. is to assess the total income for the relevant year. As such, where the assessee is able to show that the income as returned is not assessable for that year, i.e., as per law; each year being an independent unit of assessment, we see no reason as to why the same could not be excluded. The onus, however, to show that it is not so, as where the return as furnished carried an omission or a wrong statement is squarely on the assessee. In the context of the present case, admittedly a legal dispute/s led to the withholding of the payment of ₹ 58.25 lacs (out of the total consideration of ₹ 105 lacs), and which stands resolved during the current year (refer assessee s reply, reproduced at para 2 of the assessment order), so that it is prima facie indicative of the income (by way of capital gain) arising during the current year. The assessee claims that the possession was allowed forthwith, i.e., on the execution of the sale and development agreement dated 15.12.1994 and, in fact, the development rights stood further assigned by the developer, Anil Patel and Others, on 18.1.1996, so that capital gain u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the relevant previous year and, if not, when. The matter is accordingly restored to the file of the assessing authority for fresh adjudication with regard to whether any part of the capital gains on transfer of plot no. 99 arise to the assessee during the relevant year. The AO shall decide issuing definite findings of fact. We decide accordingly. As regards the question of exemption u/s. 54F, the second issue, assessee has not brought forth any reason to disturb the findings and determination by the ld. CIT(A), i.e., in-so-far as it is adverse to the assessee, being in fact based on judicial precedents, binding on the Revenue authorities. We, accordingly, confirm the same. The Revenue s grievance is with regard to the ld. CIT(A) relying on the additional evidences without observing the mandate of rule 46A. We find the Revenue s objection valid, being squarely covered by r. 46A(3), even as we uphold his decision with regard to the admission of additional evidences. The same, we observe, are in relation to: a) Nature of the house properties owned by the assessee residential or nonresidential; b) Nature of ownership absolute or partial; and c) Investment in new ..... X X X X Extracts X X X X X X X X Extracts X X X X
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