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TMI Blog2020 (1) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... it is observed from the impugned order i.e. page No. 8, the AO said to have been referred to the Assistant Valuation Officer for valuation of land and for the cost of acquisition as on 01-04-1981, it appears by the time of framing of assessment, the said reply from the Assistant Valuation Officer has not been received by the AO and without considering the same he completed assessment and allowed the claim of assessee u/s. 54F of the Act without referring and recording the same in the assessment order. In our opinion, in the present case having no report from the Valuation Officer, the AO allowed the claim of assessee establishes that the AO failed to examine the claim of assessee in terms of law contemplated therein. AO failed to apply his mind to the case in all perspective in terms of conditions contemplated in provisions u/s. 54F of the Act. He accepted the claim of assessee in the absence of any inquiry, in our opinion, the Pr. CIT rightly held its jurisdiction u/s. 263 - Decided against assessee. - ITA No.895/PUN/2019 - - - Dated:- 10-1-2020 - Shri Anil Chaturvedi, Accountant Member And Shri S.S. Viswanethra Ravi, Judicial Member For the Assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same, sample sale transactions in a tabular form were submitted. The Pr. CIT-2, Aurangabad found the submissions of assessee are not acceptable and held the claim allowed by the AO u/s. 54F violated the conditions and the AO failed to examine the issue. Regarding the second issue of market price the Pr. CIT- 2, Aurangabad held the AO should have verified the issue by examining the flats nearby, and he held the assessment order passed u/s. 143(3) of the Act is erroneous and prejudicial to the interest of revenue. 6. Having aggrieved, the assessee is now before us challenging the action of Pr. CIT in holding the assessment order passed by the AO u/s. 143(3) of the Act is erroneous and prejudicial to the interest of revenue. The assessee filed paper book containing pages 1 to 288 certifying that all documents therein were before lower authorities. 7. Heard both parties and perused the material available on record. The contention of Shri K. Srinivasan, the ld. AR that it was a limited scrutiny and the AO issued notice dated 10-08-2016 u/s. 142(1) along with a questionnaire and specifically asked to furnish details of low ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that the assessee himself submitted vide written submissions that a token amount of ₹ 5,00,000/- against total consideration of ₹ 70,00,000/- and considering the issue in detail in terms of submissions made by the assessee, the Pr. CIT has taken the date of payment of token money i.e. 16-03-2010 as the date of purchase and held the claim allowed by the AO violated the conditions stipulated in the provision u/s. 54F of the Act. 10. On perusal of the Agreement to Assign reveals that the assessee invested in two residential units, in our opinion, is not the condition stipulated to make claim u/s. 54F of the Act. Sub-section (1) of Section 54F of the Act relevant to year under consideration explains the capital gain arises on the transfer of any Long Term Capital Gain assets to be invested within a period of one year before the date on which the transfer took place or as within a period of three years after that the date constructed, a residential house. As discussed above, we find that the assessee made investments in two residential units along with two IT unit for a total consideration of ₹ 70,00,000/- which is evident from internal page 8 of Agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expenses aggregating to ₹ 2.94 crores. Out of which the AO held ₹ 17.98 lakhs is in the nature of capital expenditure and the remaining amount of ₹ 1.76 crores as revenue expenditure, whereby, it clearly shows that the AO applied his mind and disallowed some part of claim of assessee. In the present case, the assessment order is consisting of two pages wherein we find no reference or whatsoever regarding the steps taken by the AO in respect of claim u/s. 54F of the Act. Therefore, in our opinion it is a case of lack of enquiry and the ratio laid down by the Hon ble High Court of Bombay in the case of M/s. Fine Jewellery (India) Ltd. (supra) is not applicable to the facts of the preset case. 13. In the case of Deccan Paper Mills Co. Ltd. Vs. CIT in ITA Nos.1013 1635/PUN/2014 for the A.Ys. 2009-10 2010-11 order dated 10-10-2017 as relied by the ld. AR it was argued with reference to para Nos. 11, 12,, 20, 22 and 26, the said case was selected scrutiny under CASS to verify the claim of deduction u/s. 80IB(10) of the Act, the AO after examining the evidences filed by the assessee held that the assessee is entitled to claim deduction u/s. 80IB(10) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on by the ld. AR in the case of Lalitkumar Kesarimal Jain Vs. Deputy CIT in ITA No. 1345/PUN/2017 for A.Y. 2012-13 order dated 24-09-2019 it was submitted that the assessee utilized sale proceeds arising out of original asset before due date of filing of return of income and the claim u/s. 54F of the Act cannot be denied only on the reason that no possession have been delivered to the assessee within the stipulated period. The ld. DR submitted that in the said case the genuineness of transactions for procurement of new residential flats were remained uncontroverted and in the present case the genuineness of transaction itself is not clear in respect of purchase, construction and possession in terms of provisions of section 54F of the Act. On perusal of said order of this Tribunal we find that the Tribunal by placing reliance on the decision of Hon ble Supreme Court in the case of Fibre Boards (P.) Ltd. Vs. CIT reported in 62 taxmann.com 135 held the exemption u/s. 54F of the Act is to be allowed when the amount has been utilized before the due date of filing of return of irrespective of the delivery of possession of new asset within the stipulated period. In the present case we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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