SHRI. MOHAN KASHIRAM KADAM,NAVI MUMBAI vs. ITO 28(2)(2), NAVI MUMBAI

The Ld. CIT(A) has erred in confirming action of A.O. of adding short term capital gain u/s 50 arising out of sale of depreciable asset to the tune of Rs. 25,13,544/- by denying the exemption u/s 54F in A.Y. 2012-13 respect of investment in residential property though in reality after allowing exemption u/s 54F taxable capital gain would be NIL.

The Ld. CIT(A) has erred in confirming action of A.O. of denying the exemption u/s 54F in respect of investment in residential property against the abovementioned short term capital gain though the agreement for purchase of residential property, loan sanction letters and housing loan statements etc, were duly submitted during assessment proceedings.

The LD. CIT (A) has erred in confirming the action of A.O. of denying the exemption u/s 54F in respect of investment in residential property not duly considering the decisions in favour of the appellant quoted by the appellant especially that of Juri ictional High Court i.e. Bombay High Court decision in the case of Ace Builders P Ltd which states that the fiction created under a 50 is for the purposes of s. 48(2) Only and it cannot be extended to deny exemption under s. 54E when the capital asset sold by assessee is in fact a long term capital asset'.

The CIT(A) has also erred in confirming the action of A.O. of not calculating the short term capital gain arising out of sale of depreciable asset in terms of the provisions of section 50 and thus by not taking into account the very concept of 'block of assets! and deducted the WDV of the asset sold and not the WDV of the block.”

We have heard the argument advanced by the Ld. Representative of the parties and perused the record. At the very outset, the Ld. Representative of the assessee has argued that the CIT(A) has decided the A.Y. 2012-13 matter of controversy without giving an opportunity of being heard to the assessee, therefore, the finding is not justifiable, hence, is liable to be set aside. However, on the other hand, the Ld. Representative of the Department has argued that the CIT(A) has accorded the number of opportunity but the assessee did not represented his case, therefore, the CIT(A) has rightly dismissed the appeal of the assessee. The copy of order dated 06.11.2019 is on the file in which it is observed that the CIT(A) has afforded the sufficient opportunity to the assessee but the appeal has not been decided on merits, therefore, by not deciding the matter of controversy on merits nowhere seems justifiable. Therefore, we set aside the finding of the CIT(A) on this issue and restore the issue before the CIT(A) to decide the matter of controversy afresh on merits by giving an opportunity of being heard to the assessee in accordance with law. Accordingly, the appeal of the assessee is hereby allowed for statistical purposes.

In the result, the appeal filed by the assessee is hereby allowed for statistical purposes. Order pronounced in the open court on 18 /02/2022 (S. RIFAUR RAHMAN) (AMARJIT SINGH लेखध सदस्य / ACCOUNTANT MEMBER न्यधनिक सदस्य/JUDICIAL MEMBER मुंबई Mumbai; ददनांक Dated : 18/02/2022 Vijay Pal Singh, (Sr. PS) A.Y. 2012-13