9911796707
TMI Blog2016 (11) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of Goetz (India) Ltd. (2006 (3) TMI 75 - SUPREME Court ), we are of the view that though the Supreme Court held that a fresh claim before the A.O. can be made only by filing a revised return and not otherwise, the A.O. is well aware of the legal position and after considering the relevant facts chosen to allow the exemption claimed by the assessee, which cannot be termed as erroneous in so far as it is prejudicial to the interest of the revenue. Therefore, the assessment order passed by the A.O. u/s 143(3) of the Act, is not erroneous in so far as it is prejudicial to the interest of the revenue. Order passed by the CIT u/s 263 quashed - Decided in favour of assessee - I.T.A. No. 305/Vizag/2013 - - - Dated:- 30-9-2016 - Shri V. Durga Rao, Judicial Member And Shri G. Manjunatha, Accountant Member Appellant by : Shri G.V.N. Hari, AR Respondent by : Shri P. Hariprasad Rao, CIT ORDER Per G. Manjunatha, Accountant Member This appeal filed by the assessee is directed against the order of the Commissioner of Income Tax, Vijayawada u/s 263 of the Income Tax Act, 1961 (hereinafter called as the Act ) for the assessment year 2008-09. 2. The brief facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain omissions and commissions were noticed, which rendered the assessment order erroneous in so far as it is prejudicial to the interest of the revenue. The CIT, in the said show cause notice, observed that the A.O. has allowed deduction towards exemption claimed u/s 54F of the Act, towards re-investment of sale consideration for construction of another residential house, though the assessee had not claimed such deduction in the return of income filed u/s 139(1) of the Act. The CIT, further, observed that as per the provisions of section 139(5) of the Act, the assessee can file revised return, if there is any omissions and wrong statement in the first return. However, the A.O. allowed deduction u/s 54F of the Act, without any claim made by the assessee by filing revised return, therefore, opined that the assessment order passed by the A.O. u/s 143(3) of the Act is erroneous in so far as it is prejudicial to the interest of the revenue. Therefore, issued a show cause notice and asked to explain why assessment order shall not be revised under the provisions of section 263 of the Act. 4. In response to show cause notice, the assessee submitted that the order passed by the A.O. u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of being heard. 6. The Ld. A.R. for the assessee submitted that the CIT is erred in invoking the provisions of section 263 of the Act, in as much the order dated 25.11.2010 passed by the A.O. u/s 143(3) of the Act, is neither erroneous nor prejudicial to the interest of the revenue. The A.R. further submitted that the Ld. Commissioner of Income Tax is not justified in directing the A.O. to disallow exemption u/s 54F of the Act and for this purpose directed the A.O. to re-do the assessment de-novo without appreciating the facts that the A.O. has examined the issue of allowability of deduction claimed by the assessee u/s 54F of the Act. The A.R. further submitted that the A.O. at the time of completion of assessment u/s 143(3) of the Act, has called for relevant details with regard to the computation of long term capital gain and exemption u/s 54F of the Act and after satisfied with the explanations offered by the assessee has chosen to accept the claim, therefore, the CIT cannot find fault with the A.O. without pointing out any defects in the assessment order as to the A.O. has failed to examine the issue of exemption u/s 54F of the Act. The A.R. further submitted that the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the A.O. has not examined the issue at the time of completion of assessment. We find force in the arguments of the assessee for the reason that on perusal of assessment order passed by the A.O. u/s 143(3) of the Act, dated 25.11.2010, we find that the A.O. has reproduced computation of long term capital gain and exemption claimed u/s 54F of the Act, in the body of assessment order. From this, it is clear that the A.O. has examined the issue of allowability of exemption claimed by the assessee u/s 54F of the Act. Therefore, the CIT was incorrect in holding that the A.O. has not conducted enquiry or conducted inadequate enquiry, thereby his order is erroneous in so far as it is prejudicial to the interest of the revenue. 9. The CIT assumed jurisdiction to revise the assessment order on the ground that there is a lack of enquiry on the part of the A.O., in examining the issue of exemption claimed u/s 54F of the Act. The assessee has filed a paper book which contains details filed before the A.O. at the time of assessment proceedings. On perusal of the details filed by the assessee, we find that the assessee has filed details of computation of long term capital gains and also ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the same is prejudicial to the interest of the revenue are co-exist. 11. In the present case on hand, on perusal of the facts available on record, we find that the A.O. has conducted detailed enquiry and also examined the issue of allowability of exemption u/s 54F of the Act. The assessee has filed necessary details and also made a fresh claim u/s 54F of the Act, by filing revised statement of total income. The A.O. after satisfied with the explanations offered by the assessee has accepted the claim. Therefore, we are of the view that the CIT was incorrect in assuming jurisdiction to revise the assessment order, once assessee explained that it had filed all the details before the A.O. on the issue, on which CIT wants further verification. It is a general presumption of law that the A.O. has considered all the details before completion of assessment and the CIT cannot presume that the enquiries conducted by the A.O. is insufficient and also the A.O. has not applied his mind, unless the CIT categorically proves that the assessment order passed by the A.O. is erroneous. In so far as the observation of the CIT, with regard to the decision of Goetz (India) Ltd. (supra), we are o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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