Manish Madhav Malpani, Sangamner vs Assessee

This appeal filed by the assessee is against the order dated

12-03-2013 of the CIT(A)-I, Pune relating to Assessment Year

2009-10.

2. Facts of the case, in brief, are that the assessee is an

individual and filed his return of income on 28-09-2009

declaring total income of Rs.1,22,01,352/-. A search u/s.132 of

the I.T. Act was conducted in the Malpani group of cases on 06-

10-2009. In response to the notice issued u/s.153A the

assessee filed his return of income on 24-06-2010 declaring

same income as was disclosed in the original return of income.

During the course of assessment proceedings the Assessing

Officer noted that during the course of search impounded 2

documents at office premises of Malpani Estates at 3rd floor,

Mantri Centre, Tukaram Paduka Chowk, F.C. Road, Pune-

411004 have revealed unaccounted cash receipt of

Rs.15,20,000/- and unaccrued cheque receipt of Rs.16,00,000/-

on account of sale of a land at Ambegaon. However, the

assessee had not disclosed any capital gain in the original return

of income filed. The Assessing Officer further noted that the

assessee in its computation of total income filed in response to

notice u/s.153A has claimed deduction of Rs.31,20,000/-

u/s.54F of the I.T. Act which was not made at the time of filing

of original return on 28-09-2009. He observed that this

enhanced claim amounting to Rs.31,20,000/- u/s.54F is

claimed against the disclosure made by the assessee during

search action u/s.132 of the I.T. Act. Thus, the assessee on one

hand had honoured his disclosure of Rs.31,20,000/- as capital

gain on sale of land including the accounted and unaccounted

consideration and on the other hand he has claimed deduction

u/s.54F of the Act against the entire disclosure of

Rs.31,20,000/- treating the same as his capital gain and thereby

claiming deduction on the same. Thus, according to the

Assessing Officer, the assessee has not offered any additional

income to tax during the year under consideration. According to

the Assessing Officer enhanced claim amounting to

Rs.31,20,000/- made by the assessee u/s.54F in his return filed

u/s.153A becomes disallowable on two counts :

1. That it was not claimed in original return of income filed on 28-09-2009.

2. The undisclosed income declared during search/survey is not capital gains and hence not allowable for deduction u/s.54F.

3 He therefore asked the assessee to explain as to why the said

claim of deduction u/s.54F amounting to Rs.31,20,000/- should

not be disallowed being not claimed by him in his original

return. The Assessing Officer also asked the assessee to explain

as to why the unaccounted and undisclosed income of

Rs.31.20,000/- should not be added as the deduction u/s.54F

can be claimed only against the capital gains of the assessee

whereas the undisclosed income declared during the search

action which does not fall under any of the heads of income as

described u/s.14 of the I.T. Act. Rejecting the various

explanations given by the assessee and relying on the decisions

of Hon'ble Supreme Court in the case of Sun Engineering Works

Pvt. Ltd., reported in 198 ITR 297 and the decision in the case of

Chettinad Corporation Pvt. Ltd. reported in 200 ITR 320, the

Assessing Officer came to the conclusion that proceedings

u/s.153A could only be for the benefit of the revenue and the

assessee cannot claim higher deductions which were not

originally claimed in the original return of income.

3. Before CIT(A) the assessee submitted that since capital

gains have been unearthed during the course of search and

offered to tax the assessee is entitled to claim deduction u/s.54F

in respect of the additional income offered to tax. It was stated

that since the evidences of sale of land has been found the issue

has to be taken to its logical conclusion and the benefit of

deduction u/s.54F has to be allowed.

4. However, the CIT(A) was also not convinced with the

arguments advanced by the assessee. He observed that section

153A proceedings are in the nature of reassessment

proceedings. The section talks about assessment or 4

reassessment of the total income of six assessment years

immediately preceding the assessment year relevant to the

previous year in which search is conducted. Pending

assessments as per the scheme of the search provisions of

section 153A merge into the reassessment proceedings.

Reassessment proceedings u/s.153A are thus alternate to

reopening of assessments in search cases. The only difference is

that notice u/s.148 is replaced with notice u/s.153A. He

therefore observed that the ratio of decision of Hon'ble Apex

Court in the case of Sun Engineering Works Pvt. Ltd., (Supra)

and Chettinad Corporation Pvt. Ltd., (Supra) would apply with

equal force to such proceedings also. Rejecting the various

explanations given by the assessee and relying on the decision of

Hon'ble Delhi High Court in the case of CIT Vs. Anil Kumar

Bhatia reported in 211 Taxmann 453, the decision of the

Jodhpur Bench of the Tribunal in the case of Suncity Alloys Pvt.

Ltd., reported in 124 TTJ 672 and the decision of the Delhi

Bench of the Tribunal in the case of Charchit Agarwal Vs. ACIT

reported in 129 TTJ 438 he upheld the action of the Assessing

Officer rejecting the claim of deduction u/s.54F of the I.T. Act.

5. Aggrieved with such order of the CIT(A) the assessee is in

appeal before us with the following grounds :

"The following grounds are taken without prejudice to each other - On facts and in law,

1] The learned CIT(A) erred in confirming the disallowance of exemption u/s 54F of Rs. 31,20,000/- claimed by the assessee against the long term capital gains declared during the course of asst. u/s 153 A of the Act.

1.1] The learned CIT(A) erred in holding that the assessee was not eligible to make a fresh claim of exemption in the asst. u/s 153 A, which was not made in the original return and hence, the exemption u/s 54F was not available to the assessee.

5 1.2] The learned CIT(A) erred in wrongly applying the decision of Hon'ble Supreme Court in the case of Sun Engineering Works [198 ITR 297] to the case of the assessee for holding that the assessee was not eligible to make a claim exemption u/s 54F even in respect of the income newly declared in the return filed u/s 153 A of the Act.

1.3] The learned CIT(A) further erred in holding that the income declared in the course of search was to be assessed as income from other sources and hence, the exemption u/s 54F was not allowable to the assessee in respect of the said income.

2] The learned CIT(A) failed to appreciate that in the original return, the assessee had not declared any income under the head long term capital gains and only after the search, the assessee had declared the said income as long term capital gains against which the exemption u/s 54F was claimed and hence, the claim was allowable.

2.1] The learned CIT(A) erred in not appreciating that since no long term capital gains was offered to tax in the original return, the assessee had no occasion to claim the exemption u/s 54F in the original return and therefore, the learned CIT(A) was not justified in rejecting the said claim of exemption.

2.2] The learned CIT(A) ought to have appreciated that -

a. The assessee could make a fresh claim in the return filed u/s 153 A and there was no bar on the assessee.

b. The conditions laid down u/s 54F were duly complied with by the assessee and hence, the claim of exemption u/s 54F should have been allowed.

c. An income which is exempt under the provisions of the Act cannot be brought to tax merely because it is disclosed as a result of search proceedings and hence, there was no reason to deny the exemption u/s 54F claimed by the assessee against such income.

2.3] The learned CIT(A) failed to appreciate that the decision of Hon'ble Supreme Court in the case of Sun Engineering Works was not applicable to the assts. u/s 153 A and even otherwise, since the claim of exemption u/s 54F pertained to the additional income disclosed in the course of search, the said claim was allowable even in view of the said decision of Hon'ble Apex Court.

2.4] The learned CIT(A) erred in not appreciating that the various decisions relied upon by her were distinguishable on facts and hence, the same were not applicable to the case of the assessee and therefore, the claim of the assessee could not be denied.

3] The learned CIT(A) further erred in not appreciating that the gain on sale of land was assessable as capital gains and hence, the exemption u/s 54F was allowable to the assessee.

3.1] The learned CIT(A) ought to have appreciated that the unaccounted income earned by the assessee was against transfer of capital asset and hence, it was long term capital gain and therefore 6

exemption u/s.54F should have been allowed in respect of the same.

3.2 The learned CIT(A) failed to appreciate that the fact that the unaccounted income of Rs.31,20,000/- was earned on account of consideration received against transfer of land was also accepted by the learned A.O. and hence, the said income was to be assessed under the head capital gains and not as income from other sources and thus, the exemption u/s.54F was allowable to the assessee in respect of the same.

4. The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal".

6. The Ld. Counsel for the assessee strongly opposed the

order of the CIT(A). He submitted that the search took place in

the instant case on 06-10-2009 and the original return of

income was filed on 28-09-2009. He submitted that the

assessee during the impugned assessment year has sold 4 plots

of land on which an amount of Rs.15,20,000/- was received as

on-money and an amount of Rs.16 lakhs was received by

cheque. The entire amount of Rs.31,20,000/- was not disclosed

in the original return. During the course of search documents

relating to the sale of land was found and the assessee in his

statement recorded during the course of search had offered to

tax the gain on such sale of land. Referring to page 63 of the

paper book the Ld. Counsel for the assessee drew the attention

of the Bench to the computation of long term capital gain for the

impugned assessment year which has been shown at

Rs.30,61,545/-. However, the assessee has declared the capital

gain of Rs.31,20,000/- being 40% share of the total

consideration received at Rs.78 lakhs. The Ld. Counsel for the

assessee submitted that the assessee has booked a residential

house and claimed the long term capital gain as exempt from tax

u/s.54F.

7

6.1 Referring to page 120 of the paper book he submitted that

the assessee has paid an amount of Rs.58,50,000/- by cheque

No.368116 dated 20-09-2008 drawn on HDFC bank Ltd.

towards Duplex No.C-19, Tower-3, on 21st and 22nd floor at

Project Castel Royale Magnifique, Bopodi, Pune. Referring to the

copy of the agreement for purchase of flat dated 30-03-2010 a

copy of which is placed at paper book pages 82 to 169, he

submitted that the agreed value of the flat is Rs.5,99,47,500/-.

Referring to letter dated 22-11-2011 addressed to the Assessing

Officer, a copy of which is placed at pages 10 to 14 of the paper

book he submitted that the assessee during the course of

assessment proceedings has stated before the Assessing Officer

that as against the capital gain of Rs.31,20,000/- for the A.Y.

2009-10 the assessee has claimed deduction u/s.54F. As a

proof towards payment of Rs.58,50,000/- made to Shri

Shashbindu Constructions Pvt. Ltd. the assessee has enclosed

the relevant particulars. It was also stated therein that the

assessee did not own more than one residential houses other

than the new asset on the date of transfer of the residential

asset. The assessee has not purchased any residential house

other than the new asset within a period of one year after the

date of transfer of the original asset and has not constructed any

residential house other than new asset within a period of 3

years after the date of transfer of the residential asset. He

submitted that the Assessing Officer rejected the contention of

the assessee on the ground that the assessee has not declared

capital gain in the original return of income and therefore, in

view of the decisions of the Hon'ble Supreme Court in the case of

Sun Engineering Works Pvt. Ltd., (Supra) and Chettinad

Corporation Pvt. Ltd., (Supra) the assessee cannot make a new 8

claim which was neither claimed nor allowed in the original

assessment.

6.2 He submitted that the Ld.CIT(A) upheld the action of the

Assessing Officer by observing that the provisions of section

153A are akin to the provisions of section 147. He submitted

that there is a material difference between the language used in

provisions of section 147 and provisions of section 153A. He

submitted that as per provisions of section 147 if the Assessing

Officer has reason to believe that any income chargeable to tax

has escaped assessment for any assessment year he may subject

to the provisions of section 148 to 153 assess or reassess such

income and also any other income chargeable to tax which has

escaped assessment and which comes to his notice

subsequently. However, as per the provisions of section 153A in

case of a person where search is initiated u/s.132 the Assessing

Officer shall issue notice to such person to furnish the return of

income in respect of each assessment year falling within six

assessment years and assess or reassess the total income of six

assessment years immediately preceding the assessment year

relevant to the previous year in which such search is conducted

or requisition made. He submitted that the assessment year

involved in the instant case if A.Y. 2009-10 and the assessee has

filed his return of income on 28-09-2009. Had there been no

search the assessee could have filed a revised return and could

have made a fresh claim.

6.3 Referring to the decision of the Pune Bench of the Tribunal

in the case of B.G. Shirke Construction Vs. ACIT vide ITA Nos.

727 to 730/PN/2012 for A.Yrs. 2003-04, 2006-07, 2007-08 and

2008-09 he submitted that the Tribunal in the said decision has 9

held that assessee was competent to raise a fresh claim in the

context of the original jurisdiction vested with the Assessing

Officer though it was not raised in the return of income

originally filed. Therefore, the assessee can make a new claim in

pending assessment. While doing so, the Tribunal has followed

the decision of the Special Bench of the Tribunal in the case of

All Cargo Global Logistics Ltd. Vs. DCIT reported in 137 ITD 287.

6.4 Referring to the decision of the Pune Bench of the Tribunal

in the case of Malpani Estates Vs. ACIT reported in 64 SOT

105(Pune) he submitted that the Tribunal in the said decision

has held that the character of the income does not change

because of the search. Accordingly, the on-money received by

the assessee on account of sale of flats of the housing project

was held to be business income and correspondingly assessee's

claim of deduction u/s.80IB(10) with regard to the enhanced

income was allowed. He submitted that the assessee has sold

the land and long term capital gain was derived. There is no

reason to tax it as "income from other sources". The character

remains same. Since the assessee complied with the conditions

laid down in provisions of section 54F of the I.T. Act, therefore,

the assessee should be allowed to deduction u/s.54F to the

extent of Rs.31,20,000/-.

7. The Ld. Departmental Representative on the other hand

heavily relied on the order of the CIT(A).

8. We have considered the rival arguments made by both the

sides, perused the orders of the Assessing Officer and the CIT(A)

and the Paper Book filed on behalf of the assessee. We have also

considered the various decisions cited before us. There is no 10

dispute to the fact that during the course of search documents

relating to sale of land was found from the business cum

residential premises of the assessee according to which assessee

has received an amount of Rs.15,20,000/- in cash and Rs.16

lakhs in cheque being 40% share of his holding in the landed

property. Although the assessee has filed his original return of

income on 28-09-2009, however, no capital gain on account of

such sale of land was declared in the original return. The

assessee in the return filed in response to notice u/s.153A

declared the long term capital gain and simultaneously claimed

deduction of Rs.31,20,000/- u/s.54F on account of purchase of

a flat. It is the case of the revenue that since the proceedings

u/s.153A are akin to the provisions of section 147, i.e.

reassessment proceedings, therefore, the assessee cannot make

a new claim which was not there in the original return of

income. According to the revenue since the reopening of

assessment could only be for the benefit of revenue, therefore,

the assessee could not claim deduction which was neither

claimed nor allowed in the original assessment proceedings. It is

the submission of the Ld. Counsel for the assessee that the

provisions of section 153A are different from the provisions of

section 147 and the assessee can make a new claim in the

pending assessment which has not abated. Since the assessee

otherwise fulfils the conditions prescribed u/s.54F, therefore,

the allowable benefit which otherwise is available to the assessee

cannot be denied on technical grounds.

9. The payment of Rs.58,50,000/- by cheque dated 20-09-

2008 by the assessee towards booking of duplex at the project

Castel Royal Magnifique at Bopodi is not in dispute. It is also 11

not in dispute that the agreed value of the duplex is

Rs.5,99,47,500/-. The only dispute is regarding the allowability

of the claim u/s.54F out of the additional income declared

during the course of search being sale proceeds of landed

property.

10. In the case of Malpani Estates (Supra) the assessee was a

partnership firm engaged in construction business which was

subject to a search action u/s.132(1) of the Act. During the

course of search, certain undisclosed income in relation to the

housing project undertaken by the assessee firm was admitted

by the partner of the assessee firm. The assessee reflected such

additional income in the return of income filed as profits from its

housing project which was eligible for deduction u/s.80IB(10) of

the Act and claimed such deduction u/s.80IB(10) of the Act in

relation to such additional income. The claim of the assessee

was denied by the Assessing Officer which was upheld by the

CIT(A). On further appeal the Tribunal allowed the claim of the

assessee u/s.80IB(10) in respect of the additional income

declared during the course of search by observing as under :

"12. Now, coming to the point as to whether such 'business income' qualifies to be eligible for deduction u/s 80IB(10) of the Act in the course of an assessment made u/s 153A(1)(b) of the Act. On this aspect, the learned Departmental Representative submitted that the assessment in cases of search action or requisition are made u/s 153A or 153C of the Act in order to assess undeclared incomes and such provisions are for the benefit of the Revenue and therefore a claim u/s 80IB(10) of the Act cannot be considered in such proceedings, especially when such a claim was not made in the return of income originally filed under section 139 of the Act. In this regard, the learned Departmental Representative has referred to the judgment of the Hon'ble Supreme Court in the case of CIT vs. Sun Engineering Works Pvt. Ltd., 198 ITR 297 (SC) to point out that even in the cases of re-assessment u/s 147/148 of the Act fresh claims cannot be raised by the assessee. Secondly, it is pointed out by the learned Departmental Representative that even if the claim was to be considered then it was not allowable because the requisite condition that the return of income has to be accompanied by the prescribed audit report has not been complied 12

with by the assessee. On the basis of aforesaid reasons, the claim of the assessee has been opposed.

13. Sections 153A to 153C of the Act contain provisions relating to assessments to be made in cases where search is initiated u/s 132 or a requisition is made u/s 132A of the Act after 31st May, 2003. Clause (b) of sub-section (1) of section 153A postulates assessment or re-assessment of total income of six assessment years preceding the assessment year relevant to the previous year in which such search is conduced or requisition is made. Shorn of other details, it would suffice for us to notice clause (i) of the Explanation below section 153A(2) of the Act, which reads as under:-

"Explanation. - For the removal of doubts, it is hereby declared that,

(i) save as otherwise provided in this section, section 153B and section 153C, all other provisions of this Act shall apply to the assessment made under this section."

14. In terms of the above referred clause (i) of the Explanation, it is evident that all the provisions of the Act shall apply to an assessment made u/s 153A of the Act save as otherwise provided in the said section, or in section 153B or section 153C of the Act. In the background of the expression "all other provisions of this Act shall apply" contained in Explanation (i) below section 153A of the Act, and in the context of the controversy before us, the moot point to be examined is as to whether or not deductions enumerated in Chapter VIA of the Act are to be considered in making an assessment made u/s 153A(1)(b) of the Act. Section 153A(1)(b) of the Act requires the Assessing Officer to assess or reassess the 'total income' of the assessment years specified therein. Ostensibly, section 80A(1) of the Act prescribes that in computing the 'total income' of an assessee, there shall be allowed from his 'total income' the deductions specified in Chapter VIA of the Act. The moot point is as to whether the aforestated position prevails in an assessment made u/s 153A(1)(b) or not? In our considered opinion, having regard to the expression "all other provisions of this Act shall apply to the assessment made under this section" in Explanation (i) of section 153A of the Act, it clearly implies that in assessing or reassessing the 'total income' for the assessment years specified in section 153A(1)(b) of the Act, the import of section 80A(1) of the Act comes into play, and there shall be allowed the deductions specified in Chapter VIA of the Act, of course subject to fulfillment of the respective conditions. Therefore, we are unable to subscribe to the stand of the CIT(A) to the effect that the benefits of Chapter VIA of the Act, which inter-alia include section 80IB(10) of the Act, are not applicable to an assessment made under sections 153A to 153C of the Act. In our considered opinion, the phraseology A.Ys. 2008-09 to 2010-11 of section 153A r.w. Explanation (i) as noted above, does not support the premise arrived at by the CIT(A) and accordingly, the same is rejected. Therefore, assessee's claim for deduction u/s 80IB(10) of the Act even with regard to the enhanced income was well within the scope and ambit of an assessment u/s 153A(1)(b) of the Act and the Assessing Officer was obligated to consider the same as per law.

15. ......................

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13

16. The argument set-up by the learned Departmental Representative on the basis of the judgment of the Hon'ble Supreme Court in the case of Sun Engineering Works Pvt. Ltd. (supra), in our view, is also untenable having regard to the facts of the present case. No doubt the Hon'ble Supreme Court has observed that reopening of an assessment u/s 147/148 is for the benefit of the Revenue. In the case before the Hon'ble Supreme Court, assessee wanted to set-off loss against the escaped income which was taxed in the re- assessment proceedings and the claim of such set-off was not made in the return of income originally filed. According to the Hon'ble Supreme Court, the claim was not entertainable because the said claim not connected with the assessment of escaped income. In-fact, the judgment of the Hon'ble Supreme Court in the case of Sun Engineering Works Pvt. Ltd. (supra) is not an authority to say that assessee cannot raise a claim pertaining to an issue which is connected to the assessment of escaped income. In-fact, if a claim which is connected to the escaped income is set-up before the Assessing Officer in the course of re-assessment proceedings, the same is liable to be considered and the judgment of the Hon'ble Supreme Court in the case of Sun A.Ys.

2008-09 to 2010-11 Engineering Works Pvt. Ltd. (supra) only precludes such new claims by the assessee which are unconnected with the assessment of escaped income. In the present case, we are dealing with an assessment u/s 153A of the Act and the scope of such an assessment has already been examined by us in the context of the relevant specific provisions, which do not leave any scope for ambiguity. The judgment of the Hon'ble Supreme Court in the case of Sun Engineering Works Pvt. Ltd. (supra) has been rendered on a different footing and is strictly not applicable to the present proceedings. So, however, even if one were to import the reasoning raised by the learned Departmental Representative based on the judgment of the Hon'ble Supreme Court, to the present case, yet we do not find that it would debar the assessee from claiming deduction u/s 80IB(10) of the Act on the impugned additional income declared in the return filed in response to notice u/s 153A(1)(a) of the Act. In the present case, the claim of deduction u/s 80IB(10) of the Act was made in the return of income originally filed and in the return filed in pursuance to the notice u/s 153A(1)(a) of the Act, the claim u/s 80IB(10) of the Act is only enhanced and therefore, it is not a fresh claim.

Therefore, in our view, the judgment of the Hon'ble Supreme Court in the case of Sun Engineering Works Pvt. Ltd. (supra) does not help the Revenue in the present case."

11. We find the Pune Bench of the Tribunal in the case of B.G.

Shirke Construction (Supra) has held as under :

"12. Now, in so far as the assessments for assessment years 2007-08 and 2008-09 are concerned, the original assessments were pending on the date of initiation of search, and the same stand abated in terms of the second proviso to section 153A(1) of the Act. Following the reasoning laid down in the case of All Cargo Global Logistics Ltd. (supra), in so far as assessment years 2007-08 and 2008-09 are concerned, the Assessing officer retains the original jurisdiction as well as jurisdiction conferred on him u/s 153A of the Act. In this context, the preliminary issue is as to whether the scope 14

of assessments u/s 153A(1)(b) of the Act for assessment years 2007-08 and 2008-09 can include consideration of assessee's plea to exclude income on account of retention money, considering the fact the returns of income filed by the assessee for assessment years 2007-08 and 2008-09 u/s 139(1) of the Act did not contain any such claim. In the assessments u/s 153A(1)(b) of the Act, assessee claimed that income on account of retention money be excluded in the years when the customers had withheld the retention money and instead tax it in the year of its actual receipt. No doubt, the said claim does not pertain A.Y. 2003-04, 2006-07, 2007-08 & 2008-09 to any incriminating material found in the course of search, so however, on account of the fact that the Assessing Officer retains his original jurisdiction as well in the assessments for the years 2007-08 and 2008-09 to be made u/s 153A(1)(b) of the Act, in our considered opinion, as the following discussion would so, such a claim though made for the first time in the impugned assessment proceeding, would fall within the ambit and scope of impugned assessment carried out u/s 153A(1)(b) of the Act. Pertinently, the original jurisdiction vested with the Assessing Officer for the assessment years 2007- 08 and 2008-09 empowers him to consider the impugned claim; and, to put it in other words, assessee was competent to raise such a fresh claim in the context of the original jurisdiction vested with the Assessing Officer, though it was not raised in the returns of income originally filed.

13. We may also consider this from another angle. As on the date of initiation of search i.e. 18-12-2008, the returns of income filed by assessee u/s 139(1) of the Act for assessment years 2007- 08 and 2008-09 were pending for assessment and the impugned claimed was not made in the returns of income originally filed. So, however, u/s 139(5) of the Act, assessee was competent to furnish a revised return and make such a claim, and thus the Assessing Officer was required to entertain such a claim in the course of exercising his original jurisdiction to make an assessment u/s 143(3) of the Act. Now, consequent to search action, for assessment years 2007-08 and 2008-09, Assessing Officer not only acquires jurisdiction to make additions based on the incriminating material but also retains the original jurisdiction, as explained by the Special Bench of Tribunal in the case All Cargo Global Logistics Ltd. (supra). Thus, the ensuing assessments u/s 153A(1)(b)of the Act for assessment years 2007-08 and 2008-09 would enable the Assessing Officer to consider the impugned claim which has been justifiably made by the assessee. Considering the entirety of circumstances and in law, we, therefore, hold that in so far as the assessments for the assessment years A.Y. 2003-04, 2006-07, 2007- 08 & 2008-09 2007-08 and 2008-09 are concerned, the income-tax authorities erred in not entertaining the impugned claim of the assessee merely because it was made in the course of an assessment u/s 153A(1)(b) of the Act and was not made in the returns of income originally filed u/s 139(1) of the Act."

12. In view of the decisions cited (Supra), we are of the

considered opinion that the character of the income remains

"long term capital gain" and the assessee can make a new claim 15

in the pending assessment which has not abated. Since the

assessee otherwise fulfils the conditions laid down in provisions

of section 54F of the I.T. Act, therefore, we are of the considered

opinion that the assessee is entitled to claim deduction u/s.54F

to the extent of Rs.31,20,000/-. In this view of the matter we set

aside the order of the CIT(A) and allow the appeal filed by the

assessee.

13. In the result, the appeal filed by the assessee is allowed

Pronounced in the open court on 22-05-2015.

Sd/- Sd/- (VIKAS AWASTHY) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER

satish Pune Dated: 22nd May, 2015

Copy of the order forwarded to :

1. Assessee 2. Department 3. CIT(A)-I, Pune 4. CIT-I, Pune 5. The D.R, "B" Pune Bench 6. Guard File

By order

// True Copy //

Assistant Registrar ITAT, Pune Benches, Pune