Income-tax Officer, V. Shri Anirudha Ashok Jajoo, Nashik

ITA 1924/PUN/2013

• Counselvise Citation: 192424514 RSA 2013
• Duration Of Justice: 1 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 30-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Gift; Source of fund; Cost of acquisition
• Section: 54F; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 1924/PN/2013 (ASSESSMENT YEAR : 2009-10) ITO, WARD-1(3), NASHIK .. APPELLANT VS. SHRI ANIRUDHA ASHOK JAJOO, 401, 4 TH FLOOR, RUSHIRAJ REGENCY, OPP : MAMA MUNGI KARYALAY, VIDYA VIKAS CIRCLE, GANGAPUR ROAD, NASHIK-422005 .. RESPONDENT ASSESSEE BY : SHRI PRAMOD SHINGTE REVENUE BY : SHRI RAJESH DAMOR DATE OF HEARING : 22-01-2015 DATE OF PRONOUNCEMENT : 23-01-2015 ORDER PER R.K.PANDA, AM : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 26-08-2013 OF THE CIT(A)-I, NASHIK RELATING T O ASSESSMENT YEAR 2009-10. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS A PRACTICING CHARTERED ACCOUNTANT AND FILED HIS RETURN OF INCOME ON 30-09-2009 DECLARING TOTAL INCOME OF RS.93,920/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTED THAT THE ASSESSEE HAS SHO WN INCOME FROM CAPITAL GAINS. FROM THE VARIOUS DETAILS FURNISHED BY THE ASSESSEE THE AO NOTED THAT THE ASSESSEE HAS SOLD PLOT NO. 40 AT GAT NO.229, MHASRUL ON 23-03-2009 FOR RS.8,21,000/-. THE INDEXED COST OF ACQUISITION WAS 2 WORKED OUT AT RS.4,11,678/- AND THE CAPITAL GAIN WA S SHOWN AT RS.4,09,322/-. THE ASSESSEE CLAIMED DEDUCTION U/S. 54F TO THE EXTENT OF RS.4,11,316/- ON INVESTMENT OF RS.8,25,000/- WITHIN ONE YEAR FROM OR TO THE DATE OF TRANSFER TOWARDS PURCHASE OF RESIDENTIA L PROPERTY. 2.1 THE AO FURTHER NOTED THAT THE ASSESSEE HAS PURC HASED A FLAT NO. B-402 IN RUSHIRAJ HEIGHTS APARTMENT, GANGAPUR ROAD, NASHIK FOR RS.20,04,500/- FROM M/S. RUSHIRAJ BUILDERS PVT. LTD . THE AGREEMENT TO SALE WAS MADE ON 25-09-2006 VIDE REGISTRATION NO.05 872 WITH JOINT SUB-REGISTRAR, NASHIK. SALE DEED WAS MADE ON 10-08 -2007 AND THE COMPLETION CERTIFICATE WAS RECEIVED BY THE BUILDER ON 09-02-2007. 2.2 FROM THE VARIOUS DETAILS FURNISHED BY THE ASSES SEE, THE AO CAME TO THE CONCLUSION THAT THE CONDITIONS U/S.54F ARE N OT FULFILLED FROM THE FOLLOWING SEQUENCE OF EVENTS : - AGREEMENT TO SALE OF NEW PROPERTY MADE ON 25-09-2006 - COMPLETION CERTIFICATE RECD. BY BUILDER 09-02-2 007 - SALE DEED (DEED OF APARTMENT) MADE ON 10-08-200 7 - POSSESSION OF FLAT GIVEN BY BUILDER ON 10-08-2007 - DATE OF SALE OF PLOT NO.40, MHASRUL - (LONG TERM CAPITAL ASSET FOR THE PURPOSE OF SECTION 54F) 23-03-2009 2.3 FROM THE ABOVE, THE AO NOTED THAT SINCE THE ASS ESSEE HAS PURCHASED THE FLAT MUCH BEFORE THE DATE OF TRANSFER OF LONG TERM CAPITAL ASSET, THEREFORE, THE CLAIM OF DEDUCTION U/S.54 IS INCORRECT. ACCORDINGLY, HE DISALLOWED THE CLAIM OF DEDUCTION OF LONG TERM C APITAL GAIN OF RS.4,09,322/-. 2.4 THE AO SIMILARLY NOTED THAT ASSESSEE HAS TAKEN THE HOME LOAN FROM HDFC OF RS.8,66,000/- WHICH HAS BEEN APPLIED F OR INVESTMENT IN 3 PURCHASE OF NEW ASSET. RELYING ON THE DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF MILAN SHARAD RUPAREL VS . ACIT REPORTED IN 27 SOT 61, HE HELD THAT EXEMPTION U/S.54F IS NOT AL LOWABLE WHERE THE ASSESSEE HAS PURCHASED NEW HOUSE OUT OF FUNDS BORR OWED FROM BANK. THEREFORE, HE ALSO REJECTED THE ALTERNATE CLAIM OF DEDUCTION U/S.54F. 2.5 THE AO FURTHER NOTED THAT THE ASSESSEE HAS MADE CLAIM U/S.54D OF CAPITAL GAIN ON SALE OF BUNGALOW AT PLOT NO.9, S.NO .38/1C AT KAMATWADE, NASHIK. THE SAID BUNGALOW WAS SOLD BY T HE ASSESSEE FOR RS.35 LAKHS AND THE SALE DEED WAS REGISTERED ON 16- 05-2008 WITH THE JOINT SUB-REGISTRAR, NASHIK. ACCORDING TO THE AO, THE PROVISIONS OF SECTION 54D ARE APPLICABLE IN CASE OF COMPULSORY A CQUISITION OF LANDS AND BUILDINGS. HOWEVER, HERE THERE WAS NO SUCH COM PULSORY ACQUISITION. THEREFORE, HE REJECTED THE CLAIM OF DEDUCTION OF RS .18,64,689/- MADE U/S.54D OF THE I.T. ACT. THUS, EFFECTIVELY, THE AO DISALLOWED THE LONG TERM CAPITAL GAIN ON SALE OF PLOT NO.40 CLAIMED U/S .54 AMOUNTING TO RS.4,09,322/- AND THE CLAIM OF DEDUCTION U/S.54D AM OUNTING TO RS.18,64,689/-. 3. BEFORE CIT(A) THE ASSESSEE SUBMITTED THAT THE A SSESSEE HAS PURCHASED A NEW RESIDENTIAL PROPERTY BY WAY OF DEED OF AGREEMENT ON 10-08-2007 AND TOOK THE POSSESSION ON THE SAME DATE WHICH IS VERY WELL WITHIN A PERIOD OF ONE YEAR BEFORE THE SALE OF HOUS E PROPERTY. RELYING ON VARIOUS DECISIONS IT WAS SUBMITTED THAT THE CLAIM O F DEDUCTION BY THE ASSESSEE HAS TO BE ALLOWED U/S.54. DUE TO AN INADV ERTENT TYPOGRAPHICAL ERROR THE WRONG SECTION WAS MENTIONED. HOWEVER, TH E ASSESSEE 4 OTHERWISE FULFILS ALL THE CONDITIONS OF SECTION 54 FOR CLAIMING THE DEDUCTION. 4. BASED ON THE ARGUMENTS ADVANCED BY THE ASSESSEE THE LD.CIT(A) ALLOWED THE CLAIM OF DEDUCTION U/S.54 AMOUNTING TO RS.18,64,689/- AND SUSTAINED THE ADDITION OF RS.4,09,322/-. THE ASSES SEE IS NOT IN APPEAL AGAINST THE SAID ADDITION. THE RELEVANT OBSERVATION OF THE CIT(A) FROM PARA 6 TO 6.4 READS AS UNDER : 6. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE, THE SUBMISSIONS OF THE APPELLANT, THE POSITION OF LAW AND THE MATERI AL AVAILABLE ON RECORD. AT THE OUTSET IT IS INTERESTING TO NOTE THAT THE APPEL LANT IS A PRACTICING CHARTERED ACCOUNTANT YET HE HAS FALTERED IN CLAIMING DEDUCTION UNDER THE CORRECT PROVISIONS OF THE I.T. ACT. IN THE ORIGIN AL ASSESSMENT PROCEEDINGS, THE DEDUCTION WAS CLAIMED UNDER 54D OF T HE I.T. ACT WHICH WAS STATED TO BE A TYPOGRAPHICAL MISTAKE. IN THE GROUN DS OF APPEAL THE DEDUCTION WAS CLAIMED U/S 54F OF THE I.T.ACT AND DURI NG THE APPELLATE PROCEEDINGS IT WAS CORRECTED TO SEC. 54 OF THE I.T.AC T. 6.1 IT IS SEEN THAT THE AO HAS REJECTED THE APPELLANT' S CLAIM OF DEDUCTION OF RS.18,64,689/- U/S 54D OF THE ACT STATING THAT SEC. 54D REQUIRES COMPULSORY ACQUISITION OF THE PROPERTY. THE A PPELLANT VIDE HIS SUBMISSION BEFORE ME HAS CORRECTED THE MISTAKE IN THIS RE GARD, I.E. HAS CLAIMED DEDUCTION U/S 54 OF THE ACT. THE HON'BLE ITA T, INDORE IN THE CASE OF PARAMJEET SINGH CHHABRA V. ITO (2013) 35 TAXMANN .COM 612 INTREALIA HAS HELD AS UNDER:- 1) EVEN IF A WRONG SECTION WAS MENTIONED BY THE ASSESSEE IN THE RETURN, IT WAS DUTY OF THE AO TO ASSIST THE TAXPAYER IN A REASONABLE WAY AND PROVIDE THE RELIEF IF DUE TO THE ASSESSEE. THIS ATTITUDE RATHER WOULD HELP THE REVENUE IN ASSESSING THE INCOME C ORRECTLY; 2) A CORRECT ADVICE BY THE DEPARTMENT WOULD INSPI RE THE CONFIDENCE OF PUBLIC AT LARGE. EVEN IDENTICAL GUIDELINES OR INST RUCTIONS HAVE BEEN ISSUED FROM TIME-TO-TIME BY THE CBDT TO ITS OFFIC ERS; 3) IF DUE TO IGNORANCE A WRONG SECTION HAD BEEN MENTIONED BY THE ASSESSEE, AO OUGHT TO HAVE ADVISED THE ASSESSEE ABOUT THE CORRECT CLAIM AND ASSESSED THE TAX LEGITIMATELY. THIS W AS THE CLEAR INTENTION OF THE LEGISLATURE. 6.2 IN THE ABOVE BACKGROUND I HAVE CONSIDERED AND AD MITTED THE APPELLANT'S SUBMISSION IN REGARD TO CLAIM OF DEDUCTION U/S 54 OF THE ACT. THE APPELLANT VIDE SUBMISSION DATED 26/08/2013 HAS NOT PRESSED FOR DELETION OF ADDITION OF RS. 4,09,322/- ON ACCOUNT OF L.T.C.G. ON SALE OF PLOT NO.40, MHASRUL. THIS ADDITION IS, THEREFORE, CONFIRMED . AS REGARDS CLAIM OF DEDUCTION OF RS. 18,64,689/- U/S 54 OF THE I.T. AC T. I HAVE GONE THROUGH THE RELEVANT PROVISIONS OF SECTION 54 AND THE FACTS OF THE APPELLANT'S CASE. 5 THE APPELLANT HAS SOLD A BUNGALOW AT PLOT NO.9, KAMAT HWADA FOR RS.32,00,000/- VIDE SALE DEED REGISTERED ON 16/05/2008 . THIS BUNGALOW WAS RECEIVED BY THE APPELLANT AS A GIFT FROM HIS FATH ER WHO HAD ACQUIRED THE SAID PROPERTY ON 20/12/2000. THE APPELLANT VIDE SALE DEED DATED 10/08/2007 PURCHASED A RESIDENTIAL FLAT FROM M/S RUSHIR AJ BUILDERS PVT. LTD. FOR RS. 2,00,04,500/-. THE APPELLANT HAD ENTERE D INTO AN AGREEMENT FOR PURCHASE OF THE SAID FLAT VIDE SALE AGREEMENT REGI STERED ON 25/09/2006 AND HAD PAID THE STAMP DUTY OF RS. 85,600/ - AT THE TIME OF REGISTRATION OF THE ABOVE AGREEMENT. THE APPELLANT, THEREAFTER, MADE THE FOLLOWING PAYMENTS TO THE SELLER. DURING THE COURSE OF APPELLATE PROCEEDINGS IT WAS REVE ALED THAT THE APPELLANT HAD TAKEN A SUBSTANTIAL LOAN FROM HDFC BA NK FOR PURCHASING THE ABOVE REFERRED FLAT. WHILE THE SALE AGREEMENT WAS MAD E ON 25/09/2006, SUBSTANTIAL PAYMENTS WERE MADE FROM 13/07/2006 TO 07/0 4/2007. HOWEVER, THE POSSESSION OF THE FLAT WAS GIVEN BY THE BUI LDER TO THE APPELLANT ON 10/08/2007 I.E. THE DATE WHEN THE SALE DEED [DEED OF APARTMENT] WAS REGISTERED. THE APPELLANT, THEREFORE , GOT THE POSSESSION OF THE RESIDENTIAL FLAT WITHIN A PERIOD OF ONE YEAR PRI OR TO THE DATE OF SALE OF BUNGALOW (16/05/2008). WHILE FOR THE PURPOSE OF SEC TION 54 DATE OF REGISTRATION OF SALE DEED FOR PURCHASE IS NOT RELEVANT [CIT VS. R.L. SOOD (2000) 245 ITR 727 (DEL.)], DATE OF TAKING OVER POS SESSION OF PROPERTY PURCHASED IS RELEVANT FOR COMPUTING THE PRESCRIBED TI ME LIMIT. [CIT V. MRS. SHAHZADDA BEGUM (1988) 173 ITR 397(AP). IN VIEW OF THE FACTS OF THE CASE AND THE LEGAL POSITION IN THIS MATTER IT IS H ELD THAT THE APPELLANT PURCHASED THE NEW RESIDENTIAL FLAT WITHIN THE TIME PR ESCRIBED IN SECTION 54 OF THE ACT. AS REGARDS UTILIZATION OF THE CAPITAL GAINS IN PURCHASING THE NEW HOUSE, THE RELEVANT PROVISIONS OF SECTION 54 ARE AS UNDER:- 54. (1) SUBJECT TO THE PROVISIONS OF SUB-SECTION (2), W HERE, IN THE CASE OF AN ASSESSEE BEING AN INDIVIDUAL OR A HINDU UNDIVIDED FA MILY, THE CAPITAL GAIN ARISES FROM THE TRANSFER OF A LONG-TERM CAPITAL A SSET, BEING BUILDINGS OR LANDS APPURTENANT THERETO, AND BEING A RESIDENTIAL HOUSE, THE INCOME OF WHICH IS CHARGEABLE UNDER THE HEAD INCOME FROM HO USE PROPERTY (HEREAFTER IN THIS SECTION REFERRED TO AS THE ORIGINAL ASSET), AND THE ASSESSEE HAS WITHIN A PERIOD OF ONE YEAR BEFORE OR TWO YEARS AFTER THE DATE ON WHICH THE TRANSFER TOOK PLACE PURCHASED, OR HAS WITHIN A PERIOD OF THREE YEARS AFTER THAT DATE CONSTRUCTED, A RESIDENT IAL HOUSE, THEN, INSTEAD OF THE CAPITAL GAIN BEING CHARGED TO INCOME- TAX AS INCOME OF THE PREVIOUS YEAR IN WHICH THE TRANSFER TOOK PLACE, IT SHA LL BE DEALT WITH IN ACCORDANCE WITH THE FOLLOWING PROVISIONS OF THIS SECTIO N, THAT IS TO SAY, (I) IF THE AMOUNT OF THE CAPITAL GAIN IS GREATER THAN THE COST OF THE RESIDENTIAL HOUSE SO PURCHASED OR CONSTRUCTED (HEREAFTER IN THIS SECTION REFERRED TO AS THE NEW ASSET), THE DIFFERENCE BETWEEN THE AMOUNT OF THE CAPITAL GAIN AND THE COST OF THE NEW ASSET SHALL BE CHA RGED UNDER SECTION RS.50,000/- BY CHEQUE NO. 1971 71 UTI BANK DATED 13/07/2006 RS. 50.000/ BY CHEQUE NO. 193331 JALGAON JANTA CO-OP BANK LTD. DATED 13/07/2006 RS. 17,94,605/- BY CHEQUE NO. 7408 7 5 HDFC BANK DATED 10/10/2006. RS. 75.000/ BY CHEQUE NO. 15 1482 THE THANE JANATA SAHAKARI BAN K DATED 07/04/2007. RS. 34895A BY CHEUQE NO. 15 1498 THE THANE JANATA SAHAKARI BAN K DATED 26/07/2007. TOTAL RS. 20,04, 500/ - 6 45 AS THE INCOME OF THE PREVIOUS YEAR; AND FOR THE PU RPOSE OF COMPUTING IN RESPECT OF THE NEW ASSET ANY CAPITAL GAIN ARISING FR OM ITS TRANSFER WITHIN A PERIOD OF THREE YEARS OF ITS PURCHASE OR CONST RUCTION, AS THE CASE MAY BE, THE COST SHALL BE NIL; OR (II) IF THE AMOUNT OF THE CAPITAL GAIN IS EQUAL T O OR LESS THAN THE COST OF THE NEW ASSET, THE CAPITAL GAIN SHALL NOT BE CHARGED U NDER SECTION 45; AND FOR THE PURPOSE OF COMPUTING IN RESPECT OF THE NEW ASSE T ANY CAPITAL GAIN ARISING FROM ITS TRANSFER WITHIN A PERIOD OF THREE YEA RS OF ITS PURCHASE OR CONSTRUCTION, AS THE CASE MAY BE, THE COST SHALL BE RED UCED BY THE AMOUNT OF THE CAPITAL GAIN. (2) THE AMOUNT OF THE CAPITAL GAIN WHICH IS NOT APPROPRIATED BY THE ASSESSEE TOWARDS THE PURCHASE OF THE NEW ASSET MADE WITHIN ONE YEAR BEFORE THE DATE ON WHICH THE TRANSFER OF THE ORIGIN AL ASSET TOOK PLACE, OR WHICH IS NOT UTILISED BY HIM FOR THE PURCHASE OR CO NSTRUCTION OF THE NEW ASSET BEFORE THE DATE OF FURNISHING THE RETURN OF IN COME UNDER SECTION 139, SHALL BE DEPOSITED BY HIM BEFORE FURNISHING SUCH R ETURN [SUCH DEPOSIT BEING MADE IN ANY CASE NOT LATER THAN THE DUE DATE APPLICABLE IN THE CASE OF THE ASSESSEE FOR FURNISHING THE RETURN OF IN COME UNDER SUB- SECTION (1) OF SECTION 139] IN AN ACCOUNT IN ANY SUC H BANK OR INSTITUTION AS MAY BE SPECIFIED IN, AND UTILISED IN ACCORDANCE WITH, ANY SCHEME WHICH THE CENTRAL GOVERNMENT MAY, BY NOTIFICATION IN THE OFFICIAL GAZETTE, FRAME IN THIS BEHALF AND SUCH RETURN SHALL BE ACCOMPANIED BY PROOF OF SUCH DEPOSIT; AND, FOR THE PURPOSES OF SUB-SECTION (1), THE AMOUNT, IF ANY, ALREADY UTILISED BY THE ASSESSEE FOR THE PURCHASE OR CONSTRUCTION OF THE NEW ASSET TOGETHER WITH THE AMOUNT SO DEPOSITED SHALL BE DEEM ED TO BE THE COST OF THE NEW ASSET: PROVIDED THAT IF THE AMOUNT DEPOSITED UNDER THIS SU B-SECTION IS NOT UTILISED WHOLLY OR PARTLY FOR THE PURCHASE OR CONSTRUCTION OF THE NEW ASSET WITHIN THE PERIOD SPECIFIED IN SUB-SECTION (1), THEN, (I) THE AMOUNT NOT SO UTILISED SHALL BE CHARGED UNDER SECTION 45 AS THE INCOME OF THE PREVIOUS YEAR IN WHICH THE PERIOD OF T HREE YEARS FROM THE DATE OF THE TRANSFER OF THE ORIGINAL ASSET EXPIRES; AND (II) THE ASSESSEE SHALL BE ENTITLED TO WITHDRAW SUCH AMO UNT IN ACCORDANCE WITH THE SCHEME AFORESAID. 6.3 AS IS EVIDENT, THERE IS NO REQUIREMENT IN S. 54 THAT THE SALE PROCEEDS OF THE OLD HOUSE HAVE TO BE UTILIZED FOR P URCHASE OF THE NEW HOUSE. THE FACT THAT THE SECTION PERMITS A PURCHASE OF THE NEW HOUSE ONE YEAR BEFORE THE SALE OF THE OLD HOUSE ITSELF MA KES IT CLEAR THAT SUCH UTILIZATION IS NOT EVEN POSSIBLE. ALL THAT THE SECT ION REQUIRES IS THAT THE NEW HOUSE PROPERTY SHOULD BE PURCHASED WITHIN THE T IME PERIOD SPECIFIED. THE SOURCE OF FUNDS IS IRRELEVANT. THE B OMBAY HIGH COURT IN THE CASE OF CIT VS. DR. P.S. PASRICHA HAS HELD AS U NDER:- 'IN THIS CASE ALSO, THE ASSESSEE SOLD A HOUSE AND USED THE SA LE PROCEEDS TO BUY COMMERCIAL PROPERTY. SUBSEQUENTLY (BU T WITHIN THE SPECIFIED PERIOD) HE BORROWED FUNDS AND PURCHASED A NEW HOUSE. THE AO DENIED DEDUCTION U/S 54 ON THE GROUND T HAT THE NEW HOUSE HAD BEEN PURCHASED OUT OF BORROWED FUNDS AN D NOT OUT OF THE CONSIDERATION RECEIVED FOR THE OLD HOUSE. ON A PPEAL, THE TRIBUNAL AND HIGH COURT UPHELD THE CLAIM ON THE GRO UND THAT S. 54 MERELY REQUIRED THE PURCHASE OF THE NEW HOUSE TO BE WITHIN THE SPECIFIED PERIOD. THE SOURCE OF FUNDS FOR THE PURCHASE WAS IRRELEVANT'. 7 THE SAME VIEW HAS BEEN TAKEN BY THE KERALA HIGH COU RT IN K. C. GOPALAN 162 CTR 566. 6.4 IN VIEW OF THE ABOVE FACTS AND IN THE CIRCUMSTA NCES OF THE CASE, THE APPELLANT'S CLAIM OF DEDUCTION OF RS.18,64,689/- U/S 54 IS IN ORDER. THE AO'S ADDITION OF RS.18,64,689/- ON A/C OF LONG TERM CAPITAL GAIN IS UNJUSTIFIED AND IS THEREFORE DELETED. 7. HENCE WHILE THE AO'S ADDITION OF RS. 4,09,322/- I S CONFIRMED, ADDITION OF RS.18,64,689/- IS DELETED. AO IS DIRECT ED ACCORDINGLY. 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE REVE NUE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE, THE LD. CIT(A)-I, NASHIK WAS JUSTIFIED IN OBSERVING THAT THE SALE PROCEEDS OF THE OLD HOUSE WERE UTILIZED FOR PURCHASE OF NEW HOU SE WITHIN ONE YEAR AND THEREBY DELETING THE ADDITION MADE U/S 54D OF RS.18,64,689/-. 2. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A)-I, NASHIK WAS JUSTIFIED IN TREATING THE DEDUC TION CLAIMED UNDER 54D TO SEC. 54 BEING A TYPOGRAPHICAL MISTAKE. 3. IT IS THEREFORE PRAYED THAT THE ORDER OF THE LEA RNED CIT (A) BE VACATED AND THAT OF THE ASSESSING OFFICER ITO WARD 1 (1), NASHIK, BE RESTORED. 4. THE APPELLANT CRAVES LEAVE TO ADD, AMEND AND ALTE R ANY GROUND (S) OF APPEAL. 6. AFTER HEARING BOTH THE SIDES, WE FIND NO INFIRMI TY IN THE ORDER OF THE CIT(A). FROM THE VARIOUS DETAILS FURNISHED BY THE ASSESSEE, IT IS OBVIOUS THAT THE ASSESSEE IS OTHERWISE ENTITLED TO DEDUCTION U/S.54. THE LD. DEPARTMENTAL REPRESENTATIVE ALSO FAIRLY CONCEDE D THAT THE ASSESSEE IS ENTITLED TO CLAIM DEDUCTION U/S.54. HOWEVER, SINCE THE ASSESSEE HAD MADE A CLAIM UNDER THE WRONG SECTION AND PROPER CLA IM WAS NOT MADE BEFORE THE AO, THEREFORE, THE SAME WAS DENIED TO HI M. SINCE THE ASSESSEE FULFILS THE CONDITIONS PRESCRIBED IN SECTI ON 54 FOR CLAIMING THE DEDUCTION, THEREFORE, MERELY BECAUSE THE ASSESSEE H AD MADE A CLAIM UNDER A WRONG SECTION INSTEAD OF THE CORRECT SECTIO N, THE SAME IN OUR 8 OPINION, SHOULD NOT BE A GROUND TO DENY THE BENEFIT OF DEDUCTION OTHERWISE ALLOWABLE TO THE ASSESSEE. 6.1 THE CBDT CIRCULAR NO.14 (XL-35) DATED 11-04-55 (COPY OF WHICH IS PLACED AT PAPER BOOK PAGE 7) STATES THAT O FFICERS OF THE DEPARTMENT MUST NOT TAKE ADVANTAGE OF IGNORANCE OF AN ASSESSEE AS TO HIS RIGHTS. THE RELEVANT OBSERVATION AT CLAUSE (3) OF THE SAID CIRCULAR READS AS UNDER : 3. OFFICERS OF THE DEPARTMENT MUST NOT TAKE ADVANTA GE OF IGNORANCE OF AN ASSESSEE AS TO HIS RIGHTS. IT IS ONE OF THEIR DUTIES T O ASSIST A TAXPAYER IN EVERY REASONABLE WAY, PARTICULARLY IN THE MATTER OF CLAIMING AND SECURING RELIEFS AND IN THIS REGARD THE OFFICERS SHOULD TAKE THE INITIATIVE IN GUIDING A TAXPAYER WHERE PROCEEDINGS OR OTHER PAR TICULARS BEFORE THEM INDICATE THAT SOME REFUND OR RELIEF IS DUE TO H IM. THIS ATTITUDE WOULD, IN THE LONG RUN, BENEFIT THE DEPARTMENT FOR IT WOULD INSPIRE CONFIDENCE IN HIM THAT HE MAY BE SURE OF GETTING A SQ UARE DEAL FROM THE DEPARTMENT. ALTHOUGH, THEREFORE, THE RESPONSIBILITY F OR CLAIMING REFUNDS AND RELIEFS RESTS WITH ASSESSEES ON WHOM IT IS IMPOSED BY LAW , OFFICERS SHOULD : (A) DRAW THEIR ATTENTION TO ANY REFUNDS OR RELIEFS TO WHICH THEY APPEAR TO BE CLEARLY ENTITLED BUT WHICH THEY HAVE OMITTED TO CLAIM FOR SOME REASON OR OTHER; . . . . . . . . . . . . . . . . . . . . . . . . 6.2 ALTHOUGH, IN THE INSTANT CASE, THE ASSESSEE IS A PRACTICING CHARTERED ACCOUNTANT AND WHO IS SUPPOSED TO BE CONVERSANT WIT H THE LAW, HOWEVER, HE HAS MADE THE CLAIM UNDER THE WRONG SECTION54D IN STEAD OF THE CORRECTION SECTION 54. HOWEVER, HE IS OTHERWISE EN TITLED TO DEDUCTION U/S.54 AS PER THE FACTS OF THE CASE. THEREFORE, IN VIEW OF THE VARIOUS DECISIONS RELIED ON BY THE CIT(A) AND IN VIEW OF TH E CBDT CIRCULAR CITED (SUPRA), WE ARE OF THE CONSIDERED OPINION THA T THE RELIEF WHICH IS OTHERWISE DUE TO THE ASSESSEE SHOULD NOT BE DENIED. IN THIS VIEW OF THE MATTER AND IN VIEW OF THE DETAILED REASONING GIVEN BY THE CIT(A) AND IN 9 ABSENCE OF ANY DISTINGUISHING FEATURES BROUGHT TO O UR NOTICE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A). ACCORDI NGLY, THE SAME IS UPHELD AND THE GROUNDS RAISED BY THE REVENUE ARE DI SMISSED. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. PRONOUNCED IN THE OPEN COURT ON 23-01-2015 SD/- SD/- (R.S.PADVEKAR) (R. K. PANDA) JUDICIAL MEMBER ACCOUNTANT ME MBER PUNE DATED: 23 RD JANUARY, 2015 SATISH COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. THE CIT(A)-I, NASHIK 4. THE CIT-I, NASHIK 5. THE D.R, A PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // ASSISTANT REGISTRAR ITAT, PUNE BENCHES, PUNE