SMT. RANJANA SHARMA (SIKHWAL),KOLKATA vs. ITO, WARD - 32(4), KOLKATA , KOLKATA

आदेश /O R D E R PER S.S.Godara, Judicial Member:- This assessee’s appeal for assessment year 2013-14 arises against the Principal Commissioner of Income Tax-11, Kolkata’s order dated 14.03.2018 passed in case No.M.No.Pr. CIT-11,Kol/U/s 263/2017-18/9212-14, involving proceedings u/s 263 of the Income Tax Act, 1961; in short ‘the Act’. Heard both the parties. Case file peruse. 2. Both the learned representatives invited our attention to the PCIT’s revision direction under challenge regarding assessee’s sec. 54F deduction claim as under:- “2. The assessment records of the assessee were called for, examined and on the basis of the verification of the materials available on record, it was fund that the order Smt. Ranjana Sharma (Sikhwal) Vs. ITO Wd-32(4),Kol Page 2 of assessment was erroneous in so far as it is prejudicial to the interest of revenue on the following grounds:-

3. A show cause notice, dated 15.01.2018, was issued to the assessee requiring it to submit clarification or explanation to the above issue & also to show cause why remedial action of Revenue of assessment us.263 of the Act would not be taken against the assessment made u/s143(3) dated 20//01/2016.”

3. It is sufficiently clear from a perusal of the PCIT’s detailed discussion that he has assumed his sec. 263 revision jurisdiction on the sole ground that the assessee’s sale deed had been registered on 12.03.2013 as against the purchase deed of her residential property in Kolkata on 04.08.2011 involving more than a year’s gap as specified in relevant statutory provision. The assessee’s case on the other hand is that the sale deed / agreement to this effect dated 15.06.2012 running into nine pages qua the capital asset sold in Rajasthan had put the purchaser concerned in vacant peaceful possession on the said very date only and therefore, the time gap between assessee on 03.08.2011 and 15.06.2012 is less than the statutory time span of one year. We find force in learned counsel’s argument to this effect. This tribunal’s co- Smt. Ranjana Sharma (Sikhwal) Vs. ITO Wd-32(4),Kol Page 3 ordinate bench’s decision in Income Tax Officer (International Taxation) 3(1)(1) Mumbai vs. Shri Sunil Shiv Khanna decided on 14.05.2018 takes note of hon'ble Bombay high court’s judgment in Commissioner of Income Tax vs. Smt. Beena K. Jain (1996) 217 ITR 363 (Bom) that the clinching aspect in such a case is the date of possession and payment of balance consideration only. Learned CIT DR fails to dispute that going by the relevant details forming part of case record, the clinching fact herein of assessee’s conveyance deed registered on 03.08.2011 and agreement to sell alongwith possession on 15.06.2012 have been accepted as correct. We conclude in these facts and circumstances that the Assessing Officer had rightly not disallowed the assessee’s claim of sec. 54F deduction during the course of scrutiny assessment and therefore, the same is not an instance involving an erroneous assessment causing prejudice to the interest of Revenue. We make it clear that hon'ble’s apex court’s landmark decision in Malabar Industrial Co. Ltd. vs. Commissioner of Income Tax (2000) 243 ITR 83 (SC) and Commissioner of Income Tax vs. Max India (2007) 295 ITR 282 (SC) has settled the law long back that the foregoing twin conditions must / simultaneously co-exist before revision direction jurisdiction u/s 263 of the Act is assumed. We accordingly reverse the PCIT’s revision directions under challenge and restore regular assessment dated 20.01.2016 accepting the assessee’s sec. 54F deduction to this effect.