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TMI Blog2024 (5) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... alue of the property for Rs. 1,80,99,000/-. Therefore, the order passed by the Assessing Officer taking the value mentioned in the registered JDA is in accordance with law. The law is fairly settled that the contents of registered documents are required to be given precedence over the oral evidence unless the contents of the registered documents are rebutted by other contemporaneous evidence. In the present case, no evidence has been brought to my notice showing that the value mentioned in the registered JDA was incorrect. Decided against assessee. Power of the Tribunal u/s 254 to entertain for the first time a point of law - Assessee not claimed deduction u/s 54F at the time of filing return of income - assessee has raised the claim before the CIT(A) and mentioned that he was entitled to claim deduction u/s 54F - CIT(A) had rejected the claim of the assessee as relying on GOETZE (INDIA) LIMITED [ 2006 (3) TMI 75 - SUPREME COURT] - HELD THAT:- The impediment to entertain the claim of the assessee is on the power of the Assessing Officer and there is no such impediment on the power of the Tribunal u/s 254 - We deem it appropriate to remand back the issue of entitlement of the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ani Shankar Constructions for a total project cost of Rs. 1,80,99,000/-. On verification of the details with regard to the assessee in ITBA Portal, it was noticed that assessee has not filed any return of income for A.Y. 2013-14 by admitting the consideration so received. As there are reasons to believe that income chargeable to tax has escaped assessment within the meaning of section 147 of the I.T. Act, 1961. Notice u/s 148 was issued to the assessee. As the assessee failed to respond to the same, a show cause notice was issued on 04.12.2018 calling for information and asking the assessee to show cause why the assessment in his case should not be completed ex-parte u/s 144 of the I.T. Act. Again on 21.12.2018 another show cause notice was issued requesting him to show cause why the capital gain arising to him on account of the development agreement should not be assessed to tax, for which also the assessee has not submitted any reply. Finally, as there is no other go but to complete the assessment which is getting barred by limitation of time by 31.12.2018, Assessing Officer completed the assessment based on the information available on record and passed order on 28.12.2018 u/s 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22,500 sft. Which gives a rate of Rs. 680/- per sq. ft. Accordingly, the value of the constructed area falling to the share of the assessee worked out to Rs. 29,07,000/- (4275 sft x Rs. 680/-). 6. From the above details, the appellant is liable to pay capital gain tax as he entered into a Development Agreement on 9.11.2022. 7. For the assessment year under consideration, the assessment was completed within 24 days from the date of issue of notice u/s 142(1). The assessee had no other income except the capital gain. Therefore, he was not earlier assessed to tax and, therefore, the appellant could not respondent to the notices immediately. The Assessing officer concluded the assessment ex parte. The appellant submits that the Assessing officer should have provided opportunity before finalizing the assessment. The Assessing officer should not have concluded the assessment ex parte particularly when the assessee was not earlier liable to pay tax. 8. The Assessing Officer determined the cost of construction at Rs. 27,99,000/-as relating to the assessee. In this regard the appellant submits that: a) The market value of the cost of construction cannot be taken into considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the said decision is not applicable as the claim was made before the appellate authorities. A copy of the said decision is annexed. The concluding paragraph of the said decision indicates that the decision is applicable only for the claims made before the Assessing officer and not for the claims made before the appellate authorities. Therefore, claim can be made before the appellate authorities. The assessee relies on the following decisions: 1) The decision of the Supreme Court in the case of National Thermal Power Corporation Vs CIT reported in 229 ITR 383 wherein it is held by the apex court that a claim can be made even before the Income-Tax Appellate Tribunal. 2) The decision of the Supreme Court in the case of Jute Corporation of India reported in 187 ITR 685 wherein the Hon'ble apex court held that a claim can be made before the CIT (Appeals). 3) The circular No.14 dated 11.4.1955 issued by the CBDT wherein it is made clear that the Assessing officer himself has to suggest the assessee to make claim. 7. Per contra, the ld. DR submitted that the claim of section 54F by the assessee is not sustainable as the assessee has not filed any ITR or made any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to be treated as such. The provisions of section 54F are attracted (to quote from the section) '...the 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 that date on which the transfer took place purchased, or has within a period of three years after that date constructed, a residential house....' In the instant case the assessee has merely made a sale for which consideration has been received by the assessee in kind (being constructed area). The act of further investment in terms of purchase or construction has not been made by the assessee. Hence, the provisions of section 54F are not invoked in the instant case as no investment has been made by the assessee for purchase or construction of house. Hence, the claim of assessee is unsustainable on legal grounds. 8. Ground is 1 is general in nature and requires no adjudication. 8.1. GROUNDS 2 TO 5 : I have considered the rival submissions and perused the material available on record. The first argument raised by the ld.AR for the assessee is that the Revenue had wrongly worked out the cost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee's appeal are dismissed. GROUND NO.6 11. With respect to ground no.6 of assessee's appeal, I found that the has not claimed deduction u/s 54F at the time of filing return of income. Similarly, the assessee, during the appellate proceedings, has not filed the revised return before the ld.CIT(A) and only by way of arguments, he had submitted that he may be permitted to take the benefit of section 54F of the Act. In the present case, the money received by the assessee pursuant to the JDA, was the income of the assessee. For claiming deduction under Section 54F, what is required is, there should be an application of income by the assessee in acquiring the residential house or raising the construction. The sole grievance of the assessee before me is that the constructed portion falling in the share of the assessee be considered as acquiring the house for the purpose of claiming deduction under section 54F and that purpose, assessee relied upon the decision of co-ordinate Bench of the Tribunal in the case of ACIT Vs. Smt. Fazlunnisa Begum (ITA 66/Hyd/2017 dt.09.01.2018). Undoubtedly, the assessee has raised the claim before the ld.CIT(A) and mentioned that he was entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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