Shri Manish Madhav Malpani, Sangamner V. Asst. CIT, Central Circle 1(1), Pune

ITA 1090/PUN/2013

• Counselvise Citation: [2015] 121 COUNSELVISE.COM (IT) 1067 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-05-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 16-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Keywords: Reopening of assessment; Capital asset; Business income; Income from undisclosed sources; Revised return; Reason to believe; Reassessment proceedings
• Section: 143(3); 54F; 153A; 139(5); 147; 148; 6; 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER ITA NO.1090/PN/2013 (ASSESSMENT YEAR : 2009-10) SHRI MANISH MADHAV MALPANI, S.NO.150,MALPANI HOUSE, INDIRA GANDHI MARG, NEW NAGAR ROAD, SANGAMNER 422605 DIST : AHMEDNAGAR PAN NO.AAWPM2723N .. APPLICANT VS. ACIT, CENTRAL CIRCLE-1(1), PUNE .. RESPONDENT APPLICANT BY : SHRI NIKHIL PATHAK DEPARTMENT BY : SHRI A.K. MODI DATE OF HEARING : 20-05-2015 DATE OF PRONOUNCEMENT : 22-05-2015 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER D ATED 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 A N 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 INCOM E. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESS ING OFFICER NOTED THAT DURING THE COURSE OF SEARCH IMPOUNDED 2 DOCUMENTS AT OFFICE PREMISES OF MALPANI ESTATES AT 3 RD 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, TH E 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 DURIN G 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 CAP ITAL GAIN ON SALE OF LAND INCLUDING THE ACCOUNTED AND UNACCOUNT ED CONSIDERATION AND ON THE OTHER HAND HE HAS CLAIMED DEDU CTION U/S.54F OF THE ACT AGAINST THE ENTIRE DISCLOSURE OF RS.31,20,000/- TREATING THE SAME AS HIS CAPITAL GAIN AND THE REBY CLAIMING DEDUCTION ON THE SAME. THUS, ACCORDING TO THE ASSESSING OFFICER, THE ASSESSEE HAS NOT OFFERED ANY ADDITIO NAL INCOME TO TAX DURING THE YEAR UNDER CONSIDERATION. ACC ORDING 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 T HE 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.5 4F CAN BE CLAIMED ONLY AGAINST THE CAPITAL GAINS OF THE ASSES SEE WHEREAS THE UNDISCLOSED INCOME DECLARED DURING THE SEARC H 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 D ECISIONS OF HONBLE SUPREME COURT IN THE CASE OF SUN ENGINEERING W ORKS 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 CAPITA L 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 T HE ISSUE HAS TO BE TAKEN TO ITS LOGICAL CONCLUSION AND THE BENEFIT O F 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 YEAR S IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO T HE 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 T O REOPENING OF ASSESSMENTS IN SEARCH CASES. THE ONLY DIFFER ENCE IS THAT NOTICE U/S.148 IS REPLACED WITH NOTICE U/S.153A. HE THEREFORE OBSERVED THAT THE RATIO OF DECISION OF HONBLE A PEX COURT IN THE CASE OF SUN ENGINEERING WORKS PVT. LTD., (SUP RA) AND CHETTINAD CORPORATION PVT. LTD., (SUPRA) WOULD APPLY WIT H EQUAL FORCE TO SUCH PROCEEDINGS ALSO. REJECTING THE VARIO US EXPLANATIONS GIVEN BY THE ASSESSEE AND RELYING ON THE D ECISION OF HONBLE 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 DELH I BENCH OF THE TRIBUNAL IN THE CASE OF CHARCHIT AGARWAL VS. A CIT REPORTED IN 129 TTJ 438 HE UPHELD THE ACTION OF THE A SSESSING 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 T O 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 A SSESSEE AGAINST THE LONG TERM CAPITAL GAINS DECLARED DURING T HE COURSE OF ASST. U/S 153 A OF THE ACT. 1.1] THE LEARNED CIT(A) ERRED IN HOLDING THAT TH E 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 APPLYIN G 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 TH E ASSESSEE WAS NOT ELIGIBLE TO MAKE A CLAIM EXEMPTION U/S 54F EV EN 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 INC OME 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 THA T IN THE ORIGINAL RETURN, THE ASSESSEE HAD NOT DECLARED ANY INCOME UNDER THE HEAD LONG TERM CAPITAL GAINS AND ONLY AFTER THE SEARCH, TH E ASSESSEE HAD DECLARED THE SAID INCOME AS LONG TERM CAPITAL GAINS AG AINST WHICH THE EXEMPTION U/S 54F WAS CLAIMED AND HENCE, THE CLAI M 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 ORI GINAL RETURN, THE ASSESSEE HAD NO OCCASION TO CLAIM THE EXEMPTION U/S 54F I N THE ORIGINAL RETURN AND THEREFORE, THE LEARNED CIT(A) W AS 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 RE TURN FILED U/S 153 A AND THERE WAS NO BAR ON THE ASSESSEE. B. THE CONDITIONS LAID DOWN U/S 54F WERE DULY C OMPLIED WITH BY THE ASSESSEE AND HENCE, THE CLAIM OF EXEMPTION U/S 54F SH OULD HAVE BEEN ALLOWED. C. AN INCOME WHICH IS EXEMPT UNDER THE PROVISIO NS 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 DE NY THE EXEMPTION U/S 54F CLAIMED BY THE ASSESSEE AGAINST SUCH INC OME. 2.3] THE LEARNED CIT(A) FAILED TO APPRECIATE THA T 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 OTHERW ISE, SINCE THE CLAIM OF EXEMPTION U/S 54F PERTAINED TO THE ADDITION AL INCOME DISCLOSED IN THE COURSE OF SEARCH, THE SAID CLAIM WAS ALL OWABLE EVEN IN VIEW OF THE SAID DECISION OF HON'BLE APEX COURT. 2.4] THE LEARNED CIT(A) ERRED IN NOT APPRECIATIN G THAT THE VARIOUS DECISIONS RELIED UPON BY HER WERE DISTINGUISHABLE ON FA CTS AND HENCE, THE SAME WERE NOT APPLICABLE TO THE CASE OF T HE ASSESSEE AND THEREFORE, THE CLAIM OF THE ASSESSEE COULD NOT BE DENIE D. 3] THE LEARNED CIT(A) FURTHER ERRED IN NOT APP RECIATING THAT THE GAIN ON SALE OF LAND WAS ASSESSABLE AS CAPITAL GAINS AND HE NCE, THE EXEMPTION U/S 54F WAS ALLOWABLE TO THE ASSESSEE. 3.1] THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATE D THAT THE UNACCOUNTED INCOME EARNED BY THE ASSESSEE WAS AGAINST TRA NSFER OF CAPITAL ASSET AND HENCE, IT WAS LONG TERM CAPITAL GAI N 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 TH E FACT THAT THE UNACCOUNTED INCOME OF RS.31,20,000/- WAS EARNED ON AC COUNT 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 O THER SOURCES AND THUS, THE EXEMPTION U/S.54F WAS ALLOWABLE TO THE A SSESSEE IN RESPECT OF THE SAME. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND O R DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 6. THE LD. COUNSEL FOR THE ASSESSEE STRONGLY OPPOSED T HE 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 A S ON-MONEY AND AN AMOUNT OF RS.16 LAKHS WAS RECEIVED BY CHEQUE. THE ENTIRE AMOUNT OF RS.31,20,000/- WAS NOT DISC LOSED IN THE ORIGINAL RETURN. DURING THE COURSE OF SEARCH DOCUM ENTS RELATING TO THE SALE OF LAND WAS FOUND AND THE ASSESSEE IN HIS STATEMENT RECORDED DURING THE COURSE OF SEARCH HAD OFFE RED TO TAX THE GAIN ON SUCH SALE OF LAND. REFERRING TO PAGE 63 O F THE PAPER BOOK THE LD. COUNSEL FOR THE ASSESSEE DREW THE A TTENTION 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 C APITAL 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 RE SIDENTIAL HOUSE AND CLAIMED THE LONG TERM CAPITAL GAIN AS EXEMPT FRO M 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 CHE QUE NO.368116 DATED 20-09-2008 DRAWN ON HDFC BANK LTD. TOWARDS DUPLEX NO.C-19, TOWER-3, ON 21 ST AND 22 ND 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, H E 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 ENC LOSED THE RELEVANT PARTICULARS. IT WAS ALSO STATED THEREIN THA T THE ASSESSEE DID NOT OWN MORE THAN ONE RESIDENTIAL HOUSES O THER THAN THE NEW ASSET ON THE DATE OF TRANSFER OF THE RES IDENTIAL ASSET. THE ASSESSEE HAS NOT PURCHASED ANY RESIDENTIAL HOUSE OTHER THAN THE NEW ASSET WITHIN A PERIOD OF ONE YEAR A FTER THE DATE OF TRANSFER OF THE ORIGINAL ASSET AND HAS NOT CONSTRU CTED ANY RESIDENTIAL HOUSE OTHER THAN NEW ASSET WITHIN A PERIOD O F 3 YEARS AFTER THE DATE OF TRANSFER OF THE RESIDENTIAL ASSET. HE SUBMITTED THAT THE ASSESSING OFFICER REJECTED THE CONTEN TION OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAS NO T DECLARED CAPITAL GAIN IN THE ORIGINAL RETURN OF INCOME AND THEREFORE, IN VIEW OF THE DECISIONS OF THE HONBLE 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 TH E ASSESSING OFFICER BY OBSERVING THAT THE PROVISIONS OF SECTIO N 153A ARE AKIN TO THE PROVISIONS OF SECTION 147. HE SUBM ITTED THAT THERE IS A MATERIAL DIFFERENCE BETWEEN THE LANGUAGE U SED IN PROVISIONS OF SECTION 147 AND PROVISIONS OF SECTION 153A. H E SUBMITTED THAT AS PER PROVISIONS OF SECTION 147 IF THE ASS ESSING OFFICER HAS REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR HE MAY SUBJE CT TO THE PROVISIONS OF SECTION 148 TO 153 ASSESS OR REASS ESS 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 1 53A IN CASE OF A PERSON WHERE SEARCH IS INITIATED U/S.132 THE AS SESSING OFFICER SHALL ISSUE NOTICE TO SUCH PERSON TO FURNISH THE RE TURN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS AND ASSESS OR REASSESS THE TOTAL INC OME OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS C ONDUCTED OR REQUISITION MADE. HE SUBMITTED THAT THE ASSESSMENT Y EAR INVOLVED IN THE INSTANT CASE IF A.Y. 2009-10 AND THE ASSESS EE HAS FILED HIS RETURN OF INCOME ON 28-09-2009. HAD THERE BEEN NO SEARCH THE ASSESSEE COULD HAVE FILED A REVISED RETURN AN D COULD HAVE MADE A FRESH CLAIM. 6.3 REFERRING TO THE DECISION OF THE PUNE BENCH OF THE TR IBUNAL 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 DECISIO N HAS 9 HELD THAT ASSESSEE WAS COMPETENT TO RAISE A FRESH CLAIM IN THE CONTEXT OF THE ORIGINAL JURISDICTION VESTED WITH THE ASSES SING OFFICER THOUGH IT WAS NOT RAISED IN THE RETURN OF INCOME ORIGINALLY FILED. THEREFORE, THE ASSESSEE CAN MAKE A NEW C LAIM IN PENDING ASSESSMENT. WHILE DOING SO, THE TRIBUNAL HAS FOLLOWED THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CAS E 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 TR IBUNAL IN THE CASE OF MALPANI ESTATES VS. ACIT REPORTED IN 64 S OT 105(PUNE) HE SUBMITTED THAT THE TRIBUNAL IN THE SAID DECIS ION HAS HELD THAT THE CHARACTER OF THE INCOME DOES NOT CHA NGE BECAUSE OF THE SEARCH. ACCORDINGLY, THE ON-MONEY RECEIV ED BY THE ASSESSEE ON ACCOUNT OF SALE OF FLATS OF THE HOUSING PR OJECT WAS HELD TO BE BUSINESS INCOME AND CORRESPONDINGLY ASS ESSEES 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 C HARACTER REMAINS SAME. SINCE THE ASSESSEE COMPLIED WITH THE CONDIT IONS LAID DOWN IN PROVISIONS OF SECTION 54F OF THE I.T. ACT, THER EFORE, THE ASSESSEE SHOULD BE ALLOWED TO DEDUCTION U/S.54F TO T HE EXTENT OF RS.31,20,000/-. 7. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND 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 TH E CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HA VE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. THERE IS NO 10 DISPUTE TO THE FACT THAT DURING THE COURSE OF SEARCH DO CUMENTS RELATING TO SALE OF LAND WAS FOUND FROM THE BUSINESS CUM RESIDENTIAL PREMISES OF THE ASSESSEE ACCORDING TO WHICH AS SESSEE 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 LAN DED PROPERTY. ALTHOUGH THE ASSESSEE HAS FILED HIS ORIGINAL RET URN 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.15 3A DECLARED THE LONG TERM CAPITAL GAIN AND SIMULTANEOUSLY CLAI MED DEDUCTION OF RS.31,20,000/- U/S.54F ON ACCOUNT OF PURCHAS E OF A FLAT. IT IS THE CASE OF THE REVENUE THAT SINCE THE PRO CEEDINGS U/S.153A ARE AKIN TO THE PROVISIONS OF SECTION 147, I.E. REASSESSMENT PROCEEDINGS, THEREFORE, THE ASSESSEE CANNO T 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, TH EREFORE, 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 T HE PROVISIONS OF SECTION 153A ARE DIFFERENT FROM THE PROVISIONS OF SECTION 147 AND THE ASSESSEE CAN MAKE A NEW CLAIM IN TH E PENDING ASSESSMENT WHICH HAS NOT ABATED. SINCE THE ASS ESSEE OTHERWISE FULFILS THE CONDITIONS PRESCRIBED U/S.54F, THEREFORE, THE ALLOWABLE BENEFIT WHICH OTHERWISE IS AVAILABLE TO THE ASSE SSEE CANNOT BE DENIED ON TECHNICAL GROUNDS. 9. THE PAYMENT OF RS.58,50,000/- BY CHEQUE DATED 20-0 9- 2008 BY THE ASSESSEE TOWARDS BOOKING OF DUPLEX AT THE PROJECT CASTEL ROYAL MAGNIFIQUE AT BOPODI IS NOT IN DISPUTE. IT IS A LSO 11 NOT IN DISPUTE THAT THE AGREED VALUE OF THE DUPLEX IS RS.5,99,47,500/-. THE ONLY DISPUTE IS REGARDING THE ALLOWABILIT Y 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 W AS 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 AD MITTED BY THE PARTNER OF THE ASSESSEE FIRM. THE ASSESSEE REFLEC TED 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 AC T IN RELATION TO SUCH ADDITIONAL INCOME. THE CLAIM OF THE ASSESSE E WAS DENIED BY THE ASSESSING OFFICER WHICH WAS UPHELD BY TH E CIT(A). ON FURTHER APPEAL THE TRIBUNAL ALLOWED THE CLAIM OF TH E 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 80 IB(10) OF THE ACT IN THE COURSE OF AN ASSESSMENT MADE U/S 153A(1)(B) O F THE ACT. ON THIS ASPECT, THE LEARNED DEPARTMENTAL REPRESENTATIV E SUBMITTED THAT THE ASSESSMENT IN CASES OF SEARCH ACTION OR REQUISITI ON ARE MADE U/S 153A OR 153C OF THE ACT IN ORDER TO ASSESS UNDE CLARED 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 M ADE 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 B EEN 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 PROVISI ONS RELATING TO ASSESSMENTS TO BE MADE IN CASES WHERE SEARCH IS INITIATE D U/S 132 OR A REQUISITION IS MADE U/S 132A OF THE ACT AFTE R 31ST MAY, 2003. CLAUSE (B) OF SUB-SECTION (1) OF SECTION 153A PO STULATES ASSESSMENT OR RE-ASSESSMENT OF TOTAL INCOME OF SIX ASSESSMENT YEARS PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PRE VIOUS 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 HERE BY DECLARED THAT, (I) SAVE AS OTHERWISE PROVIDED IN THIS SECTION, SECTION 153B AND SECTION 153C, ALL OTHER PROVISIONS OF THIS ACT SHALL APP LY 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 PROVI DED 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 SECTI ON 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 ENUM ERATED IN CHAPTER VIA OF THE ACT ARE TO BE CONSIDERED IN MAKIN G 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 TH E '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 TH E ACT. THE MOOT POINT IS AS TO WHETHER THE AFORESTATED POSITION P REVAILS IN AN ASSESSMENT MADE U/S 153A(1)(B) OR NOT? IN OUR CONSIDERED OPINION, HAVING REGARD TO THE EXPRESSION 'ALL OTHER P ROVISIONS OF THIS ACT SHALL APPLY TO THE ASSESSMENT MADE UNDER THIS SECT ION' IN EXPLANATION (I) OF SECTION 153A OF THE ACT, IT CLEAR LY IMPLIES THAT IN ASSESSING OR REASSESSING THE 'TOTAL INCOME' FOR THE ASSESSMENT YEARS SPECIFIED IN SECTION 153A(1)(B) OF THE ACT, THE IMPOR T 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 CO URSE SUBJECT TO FULFILLMENT OF THE RESPECTIVE CONDITIONS. THEREFORE, WE ARE UNABLE TO SUBSCRIBE TO THE STAND OF THE CIT(A) TO THE EFFECT THA T THE BENEFITS OF CHAPTER VIA OF THE ACT, WHICH INTER-ALIA INCLUDE SEC TION 80IB(10) OF THE ACT, ARE NOT APPLICABLE TO AN ASSESSMENT MADE UNDE R 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 I S REJECTED. THEREFORE, ASSESSEE'S CLAIM FOR DEDUCTION U/S 80IB(10) O F THE ACT EVEN WITH REGARD TO THE ENHANCED INCOME WAS WELL WIT HIN THE SCOPE AND AMBIT OF AN ASSESSMENT U/S 153A(1)(B) OF THE ACT A ND THE ASSESSING OFFICER WAS OBLIGATED TO CONSIDER THE SAME AS PER LAW. 15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 PV T. 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 F OR THE BENEFIT OF THE REVENUE. IN THE CASE BEFORE THE HON'B LE SUPREME COURT, ASSESSEE WANTED TO SET-OFF LOSS AGAINST THE ESCAPED I NCOME WHICH WAS TAXED IN THE RE- ASSESSMENT PROCEEDINGS AND THE CLAIM OF SUCH SET-OFF WAS NOT MADE IN THE RETURN OF INCOME ORIG INALLY FILED. ACCORDING TO THE HON'BLE SUPREME COURT, THE CLAIM W AS NOT ENTERTAINABLE BECAUSE THE SAID CLAIM NOT CONNECTED WI TH THE ASSESSMENT OF ESCAPED INCOME. IN-FACT, THE JUDGMENT OF T HE HON'BLE SUPREME COURT IN THE CASE OF SUN ENGINEERING WORKS PV T. LTD. (SUPRA) IS NOT AN AUTHORITY TO SAY THAT ASSESSEE CANNOT RA ISE A CLAIM PERTAINING TO AN ISSUE WHICH IS CONNECTED TO THE ASSESSMEN T OF ESCAPED INCOME. IN-FACT, IF A CLAIM WHICH IS CONNECTE D TO THE ESCAPED INCOME IS SET-UP BEFORE THE ASSESSING OFFICER IN T HE COURSE OF RE-ASSESSMENT PROCEEDINGS, THE SAME IS LIABLE TO BE CON SIDERED AND THE JUDGMENT OF THE HON'BLE SUPREME COURT IN TH E CASE OF SUN A.YS. 2008-09 TO 2010-11 ENGINEERING WORKS PVT. L TD. (SUPRA) ONLY PRECLUDES SUCH NEW CLAIMS BY THE ASSESSEE WHICH ARE UNCONNECTED WITH THE ASSESSMENT OF ESCAPED INCOME. IN TH E PRESENT CASE, WE ARE DEALING WITH AN ASSESSMENT U/S 153A OF THE A CT AND THE SCOPE OF SUCH AN ASSESSMENT HAS ALREADY BEEN EXAMINED BY US IN THE CONTEXT OF THE RELEVANT SPECIFIC PROVISIONS, WH ICH DO NOT LEAVE ANY SCOPE FOR AMBIGUITY. THE JUDGMENT OF THE HON'BL E 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 WER E TO IMPORT THE REASONING RAISED BY THE LEARNED DEPARTMENTAL REPR ESENTATIVE 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 T HE IMPUGNED ADDITIONAL INCOME DECLARED IN THE RETURN FILED IN R ESPONSE TO NOTICE U/S 153A(1)(A) OF THE ACT. IN THE PRESENT CASE, THE CL AIM OF DEDUCTION U/S 80IB(10) OF THE ACT WAS MADE IN THE RET URN 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 CLAI M. 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 ASSESSM ENTS WERE PENDING ON THE DATE OF INITIATION OF SEARCH, AN D 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 WHE THER 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 ASSESSE E'S PLEA TO EXCLUDE INCOME ON ACCOUNT OF RETENTION MONEY, CO NSIDERING THE FACT THE RETURNS OF INCOME FILED BY THE ASSESSEE FOR ASSESSM ENT YEARS 2007-08 AND 2008-09 U/S 139(1) OF THE ACT DID N OT CONTAIN ANY SUCH CLAIM. IN THE ASSESSMENTS U/S 153A(1)(B) OF THE A CT, ASSESSEE CLAIMED THAT INCOME ON ACCOUNT OF RETENTION MO NEY BE EXCLUDED IN THE YEARS WHEN THE CUSTOMERS HAD WITHHELD THE RETENTION MONEY AND INSTEAD TAX IT IN THE YEAR OF IT S ACTUAL RECEIPT. NO DOUBT, THE SAID CLAIM DOES NOT PERTAIN A.Y. 2003-0 4, 2006-07, 2007-08 & 2008-09 TO ANY INCRIMINATING MATERIAL FOU ND IN THE COURSE OF SEARCH, SO HOWEVER, ON ACCOUNT OF THE FACT T HAT 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 FI RST 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 VESTE D 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 CL AIM IN THE CONTEXT OF THE ORIGINAL JURISDICTION VESTED WITH THE ASSESSING OFFICER, THOUGH IT WAS NOT RAISED IN THE RETURNS OF I NCOME ORIGINALLY FILED. 13. WE MAY ALSO CONSIDER THIS FROM ANOTHER ANGLE. AS O N THE DATE OF INITIATION OF SEARCH I.E. 18-12-2008, THE RE TURNS OF INCOME FILED BY ASSESSEE U/S 139(1) OF THE ACT FOR ASSESSMENT YEAR S 2007- 08 AND 2008-09 WERE PENDING FOR ASSESSMENT AND THE IMPU GNED CLAIMED WAS NOT MADE IN THE RETURNS OF INCOME ORIGINA LLY FILED. SO, HOWEVER, U/S 139(5) OF THE ACT, ASSESSEE WAS COMPETENT T O 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 AC QUIRES JURISDICTION TO MAKE ADDITIONS BASED ON THE INCRIMINAT ING MATERIAL BUT ALSO RETAINS THE ORIGINAL JURISDICTION, AS EXPLAINE D BY THE SPECIAL BENCH OF TRIBUNAL IN THE CASE ALL CARGO GLOBAL LOGIST ICS 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 H AS BEEN JUSTIFIABLY MADE BY THE ASSESSEE. CONSIDERING THE ENTIRET Y 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 C LAIM 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 REMA INS LONG TERM CAPITAL GAIN AND THE ASSESSEE CAN MAKE A NE W CLAIM 15 IN THE PENDING ASSESSMENT WHICH HAS NOT ABATED. SINCE T HE ASSESSEE OTHERWISE FULFILS THE CONDITIONS LAID DOWN IN PROVISIO NS 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 T HE 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: 22 ND 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