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TMI Blog2017 (5) TMI 1778X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment falls in the category of abated assessment and hence the entire assessment is open before the AO. The claim of the assessee for deduction u/s 54F of the Act can be entertained in the facts and circumstances of the present case. The assessee has also demonstrated before CIT(A) that she is holding only one residential house on the date of sale of commercial property. It has been submitted that the house, where she resides, does not belong to her. If that be the case, the assessee shall be entitled for deduction u/s. 54F - assessee has chosen not to disclose the ownership details of the house where she is residing, i.e., whether it belongs to some other family members or it was rented flat. Accordingly we set aside the order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eights and the same has been let out. The assessee is staying in another residential house property, which means that she also owns one more property which has not been disclosed in the return of income. Since the assessee holds more than one residential house property on the date of sale of commercial asset, she has not entitled for deduction u/s. 54F of the Act. (b) Hon'ble Apex Court in the case of Sun Engineering Works Pvt. Ltd. (198 ITR 297) has held that the assessment u/s. 147 is for the benefits of the Revenue. 4. Before the learned CIT(A), the assessee submitted that she was holding only one residential flat at Avasekar Heights and she has purchased one more flat at Sumer Trinity Tower by using proceeds of commercia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is abated assessment. In the case of abated assessments, the entire assessment is open before the AO, since the assessments, if any, pending shall abate. The learned AR submitted that Hon'ble Bombay High Court has considered an identical issue in the case of CIT Vs. B.G. Shirke Construction Technology (P) Ltd. (2017) 293 CTR (Bom) 505, wherein Hon'ble Bombay High Court has held that the assessee could make fresh claim before the Assessing Officer in 153A proceedings, even if the said claim is not make in the return filed under that section. 6. Learned Departmental Representative, on the contrary, placed reliance on the order passed by the learned CIT(A). 7. Having heard the rival contentions, I am of the view that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to furnish fresh return of income for each of the six assessment years in regard to which a notice has been issued. It is this return which is filed consequent to the notice which would be subject of assessment by the Revenue for the first time in the case of abated assessment proceedings. Consequent to notice under s. 153A of the Act the earlier return flied for the purpose of assessment which is pending, would be treated as nonest in law. Further, s. 153A(1) of the Act itself provides on filing of the return consequent to notice, the provisions of the Act will apply to the return of income so filed. Consequently, the return filed under s. 153A(1) of the Act is a return furnished under section 139 of the Act. Consequently, the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim of the assessee for deduction u/s 54F of the Act can be entertained in the facts and circumstances of the present case. The assessee has also demonstrated before Ld CIT(A) that she is holding only one residential house on the date of sale of commercial property. It has been submitted that the house, where she resides, does not belong to her. If that be the case, the assessee shall be entitled for deduction u/s. 54F of the Act. However, the assessee has chosen not to disclose the ownership details of the house where she is residing, i.e., whether it belongs to some other family members or it was rented flat. Accordingly I set aside the order passed by Ld CIT(A) and restore the same to the file of the Assessing Officer with the direction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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