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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Before: SHRI SHAMIM YAHYA, AM & AMARJIT SINGH, JM
O R D E R Per Shamim Yahya, A. M.:
This appeal by the assessee is directed against the order of the learned Commissioner of Income Tax (Appeals)-33, Mumbai (‘ld.CIT(A) for short) dated 15.03.2019 and pertains to the assessment year (A.Y.) 2010-11.
The grounds of appeal read as under:
1. On the facts and circumstances of the Case and under the provisions of Law, The Learned Commissioner of Income Tax (Appeal-33) Mumbai has erred in not allowing the deduction for investment in new residential house U/s 54 of the income Tax Act 1 96 1 from the Long term capital gain earned during the year without appreciating the fact that all the relevant details were submitted on record during the appellate proceedings as proof for the deduction available to the appellant.
2. On the facts and circumstances of the Case and under the provisions of Law, The Learned Commissioner of Income Tax (Appeal-33) Mumbai has erred in not accepting the pea of the appellant that the sale receipts of the property was invested with residential house and hence he was entitled to a deduction u/s 54F. 3. On the facts and circumstances of the Case and under the provisions of Law, The Learned Commissioner of Income Tax (Appeal-33) Mumbai has erred in appreciating the 2 3841/Mum/2019 fact that additional claim made during the appeal proceedings need to be decided on merit and if details were incomplete the same should be asked during the appeal proceedings.
4. Your appellant humbly submits the appellant is entitled to deduction u/s 54F arising out of investments made in purchasing a residential house.
5. Your appellant humbly prays that the deduction of Rs. 6,06, 547/- u/s 54 of the Income Tax Act 1961 not allowed by the First Appellate Authority is not based on any facts or law and kindly be allowed.
Brief facts of the case are that the assessee is a small carpenter. In the assessment proceedings addition was made for long term capital gain for sale of flat. Assessee’s claim for deduction u/s 54F was denied on the ground that the claim was not made originally. The Ld.CIT(A) confirmed the same and held as under:-
4.4 The appellant during the course of appellate proceedings has submitted that he is entitled to deduction u/s 54 in respect of Long Term Capital Gain. As discussed earlier, the appellant did not file return at any point of time i.e. neither before due date in regular course not in pursuance of notice u/s 148. Hence, such claim u/s 54 was not made in return. Further, the deduction was not claimed at any time of point during the scrutiny proceedings. Therefore, the same was never examined by the AO. During the appellate proceedings, agreement for purchase of new flat was filed an claim u/s 54 was made on that basis. I am of the view that such claim cannot be entertained merely on basis of investment in the new flat. The appellant has not clarified or submitted as to whether he had purchased any other flat within one year before or two years after the date of transfer. In other words, complete details were not submitted to prove that all the conditions of deduction u/s 54 have been fulfilled by the assessee. In view of above, claim of appellant for deduction u/s 54 is not entertained.
After this order assessee is in appeal before us.
We have heard both the parties and perused the record.
We find that the assessee claim of deduction u/s 54F has been rejected without due examination. It is settled law that no tax can be collected or imposed except under the mandate of law. Accordingly, the rejection of claim without examination is not permissible in law. Hon’ble Supreme Court in the case of Goetze (India) Ltd. has reiterated the power of ITAT to consider a claim which was made otherwise then by 3 3841/Mum/2019 revised return. Hence, in the interest of justice, we remit the issue to the file of the AO.
The AO shall examine the assessees claim and duly decide the same.
In the result, this appeal by the assessee is allowed for statistical purpose.
Order pronounced in the open court on 19.5.2021.