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TMI Blog2019 (1) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... the builder Kamla Landmarc Properties Pvt. Ltd. We find that the ratio laid down in Smt. Beena K. Jain [1993 (11) TMI 7 - BOMBAY HIGH COURT] by the Hon’ble Bombay High Court squarely applies to the instant case. Following the same, we set aside the order u/s 263 - decided in favour of assessee - ITA No. 3612/MUM/2018 - - - Dated:- 3-12-2018 - Shri Sandeep Gosain (Judicial Member) And Shri N.K. Pradhan (Accountant Member) For the Assessee : Ms. Kshipra Singhvi, AR For the Revenue : Mr. Rahul Raman, CIR DR ORDER PER N.K. PRADHAN, AM This is an appeal filed by the assessee. The relevant assessment year is 2013-14. The appeal is directed against the order passed by the Pr. Commissioner of Income Tax -24 [in shor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer (AO) observed during the course of assessment proceedings that the assessee has shown total receipts of ₹ 2,25,29,858/-, whereas as per 26AS it was ₹ 2,25,42,925/-. The AO made an addition of the above difference of ₹ 13,068/- and arrived at total income of ₹ 13,65,310/-. The PCIT has recorded that subsequently it was noticed that the assessee had sold two immovable properties, invested the sale proceeds thereof in purchase of another residential property and claimed exemption u/s 54 of the Act. In response to a query raised by the PCIT to explain why the claim u/s 54 should not be disallowed, the assessee filed a reply dated 27.03.2018, which has been extracted at para 3 of the impugned orderdated 28.03.2018. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e PCIT held that since the agreement for purchase/sale was registered on 22.07.2009, that would be the date when the assessee can be said to have purchased the property as per the provisions of MOFA Act. The PCIT also observed that the above aspects have not at all been examined by the AO, while allowing deduction u/s 54 of the Act, in the assessment made u/s 143(3) dated 19.02.2016. Therefore, the PCIT set aside the order of the AO on the issue of allowability of deduction u/s 54 of the Act and directed him to reassess the income after allowing the assessee reasonable opportunity of being heard. 4. Before us, the Ld. counsel of the assessee submits that during the previous year 2012-13, the assessee had made Long Term Capital Gain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,00,000/- 4 15/09/2011 990052 20,00,000/- 5 29/09/2011 375229 10,00,000/- 6 06/01/2012 885525 10,00,000/- 7 05/03/2012 885562 10,00,000/- 8 29/03/2012 885542 9,00,000/- 90,00,000/- The Ld. counsel submits it is apparent that the payments appearing at serial No. 4 to 8, amounting to ₹ 59,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mt. Ramita Mahendra Mehta v. ITO (ITA No. 4535/Mum/2014 for AY 2010-11) of ITAT D Bench, Mumbai, Bastimal K. Jain v. ITO (ITA No. 2896/Mum/2014 for AY 2010-11) of ITAT B Bench, Mumbai, Nishi Choubey v. CIT (ITA No. 3353/Mum/2014 for AY 2009-10) of ITAT B Bench Mumbai, ITO v. Shri Narshivha Amrutrao Dhere (ITA No.1944/PN/2013 for AY 2008-09) of ITAT A Bench Pune, Shri Haresh D. Trivedi (HUF) v. PCIT (ITA No. 674/Pun/2016 for AY 2012-13) of ITAT B Bench Pune, CIT v. Gabriel India Ltd. (1993) 203 ITR 108 (Bom), CIT v. M/s Fine Jewellery (India) Ltd. (ITA No. 296 of 2013) by Bombay High Court and CIT v. Gera Developments Pvt. Ltd. (ITA No. 2171 of 2013) by Bombay High Court. 5. On the other hand, the Ld. DR relies on the decision i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he benefit of exemption under section 54F of the Act. The Tribunal allowed her exemption on ₹ 11,04,423/- u/s 54F of the Act. The Hon ble High Court agreed with the order of the ITAT and held : Under section 54F of the Income-tax Act, in the case of an assessee if any capital gain arises from the transfer of any long-term capital asset, not being a residential house, and the assessee has, within a period of one year before or two years after the date on which the transfer took place, purchased a residential house, the capital gain shall be dealt with as provided in that section. As per the section certain exemption has to be allowed in respect of the capital gains to be calculated as set out therein. The Department contends that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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