Sh. Jangpal Singh Tanwar, Chandigarh V. Pr.CIT-1, Chandigarh

ITA 40/CHANDI/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 4769 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2016-2017
• Appeal Filed On: 19-04-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Audit objection; Principle of natural justice
• Section: 54; 263; 143(3); 54B; 54F; 143(2); 43; 13

Judgement Text

आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरणआयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण,च瀃डीगढ़ 瀈यायपीठ च瀃डीगढ़ 瀈यायपीठच瀃डीगढ़ 瀈यायपीठ च瀃डीगढ़ 瀈यायपीठ , च瀃डीगढ़ च瀃डीगढ़च瀃डीगढ़ च瀃डीगढ़ IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH ‘A’ CHANDIGARH BEFORE: SMT. DIVA SINGH, JUDICIAL MEMBER & SHRI VIKRAM SINGH YADAV, ACCOUNTANT MEMBER आयकर आयकरआयकर आयकर अपील अपीलअपील अपील सं संसं सं./ ITA No. 40/CHD/2021 Assessment Year : 2016-17 Shri Jangpal Singh Tanwar, # 365, Sector 20-A, Chandigarh. बनाम VS The Pr. CIT-1, Chandigarh. 瀡थायी लेखा सं./PAN /TAN No: ABKPT7336H अपीलाथ牸/Appellant 灹瀄यथ牸/Respondent िनधा榁琇रती क琉 ओर से/Assessee by : Shri Tej Mohan Singh, Advocate राज瀡व क琉 ओर से/ Revenue by : Shri Vivek Nangia, CIT-DR तारीख/Date of Hearing : 21.04.2022 उदघोषणा क琉 तारीख/Date of Pronouncement : 22.06.2022 आदेश आदेशआदेश आदेश/ORDER PER DIVA SINGH The present appeal has been filed by the assessee wherein the correctness of the order passed u/s 263 dated 21.03.2021 of Pr.CIT-1, Chandigarh pertaining to 2016-17 assessment year is assailed on the following grounds : 1 . That the Ld. Commissioner of Income Tax has wrongly assumed jurisdiction under section 263 of the Act to set-aside the assessment order dated 07.12.2018 passed by the Assessing Officer in as much as the order is neither erroneous nor prejudicial to the interest of Revenue and as such the assumption of jurisdiction under section 263 of the Act is beyond his competence. 2 . That the Ld. Commissioner of Income Tax has erred in law in issuing notice and thereafter passing the order under section 263 of the Act only on the basis of an audit objection which is not permissible and as such the order passed is illegal, arbitrary, unjustified which merits annulment. 3 . That the Ld. Commissioner of Income Tax has failed to consider that the case of the assessee was picked up for limited scrutiny and the issues in that regard including ITA 40 /CHD/2021 A.Y. 2016-17 Page 2 of 19 sale/purchase of property, indexed cost, etc. were thoroughly looked into and as such the assessment order passed was neither erroneous not prejudicial. 4 . That the Ld. Commissioner of Income Tax has erred in failing to consider the various replies and submissions placed on record in proceedings before her in the correct perspective which is arbitrary and unjustified. 5 . That the assessment order having been passed by the Assessing Officer after due application of mind and taking into consideration the various replies and material on record, the action resorted to by the Commissioner of Income Tax is unwarranted and uncalled for. 6 . That the order of Commissioner of Income tax is erroneous, arbitrary, opposed to the facts of the case and is unsustainable in law. 2. The relevant facts of the case are that the assessee e-filed his return on 05.08.2016 declaring an income of Rs.4,21,230/-. The income as per the assessment order passed u/s 143(3) and had been declared under the head ‘salaries’ and "income from other sources" . The said returned income was accepted by the AO. This order was set aside by ld. PCIT u/s 263. The record shows that the ld. PCIT makes a reference to the fact that the assessee's case was selected for limited scrutiny on the following issues : “Whether investment and income relating to properties are duly disclosed.” 3. After issuing Show Cause Notice to the assessee, the ld. PCIT after hearing the assessee set aside the assessment. The ld. PCIT held that the AO failed to examine assessee's eligibility for exemption u/s 54. The AO was directed to pass a fresh order after making necessary verifications/enquiries. 4. The assessee is aggrieved by the said order. ITA 40 /CHD/2021 A.Y. 2016-17 Page 3 of 19 5. The ld. AR inviting attention of the Bench to the Paper Book filed, made detailed submissions on each and every ground raised before the ITAT. 5.1 Vehemently arguments were advanced on ground No. 1 which is seen to be the over-arching ground which we propose to address a little later. Vehement arguments were also made in respect of ground No. 2 raised before the ITAT. Attention of the Bench was invited to various efforts made and ultimately information made available to the assessee under the RTI etc. so as to argue that the order was bad in law as Audit Objection was the reason for the ld. PCIT to set aside the validly passed assessment order. 5.2 Arguments in respect of ground No. 3 were also advanced. The remaining grounds seem to be in support of ground No.1, were also addressed. 5.3 In the course of the hearing, it need be noted that position of law as canvassed on behalf of the assessee was addressed at length by the ld. AR. Arguments addressing the legal position as considered by the ld. PCIT were also advanced. Distinction on facts qua the law applicable and considered was heavily debated, infact by both the sides. On giving our thoughtful consideration thereto, we deem it appropriate to first address ITA 40 /CHD/2021 A.Y. 2016-17 Page 4 of 19 the arguments on facts as advanced by both the parties and available on record. 6. The ld. AR has vehemently argued that the order passed by the AO was passed after making due enquiries. It was his submission that in the facts of the present case, the assessee is not dependent or relying upon what was argued in the physical hearing before the AO as in the facts of the present case, the detailed submissions of the assessee are available on the e-portal of ITBA. The present case, it was submitted, is the case wherein hearings have taken place via e-proceedings. Inviting attention to the Paper Book available on record, it was submitted, that various notices issued by the AO on different dates in the e-proceedings are available. The replies of the assessee similarly are also available on the e-portal. It was submitted that these are supported with Annexures and copies of these queries with replies with documentary evidences are all available from pages 4 to 161. At pages 1 to 3 of the Paper Book, it was submitted, is the copy of the return filed by the assessee and the computation of total income. At pages 162 onwards is the copy of the notices issued by the ld. PCIT; replies of the assessee and copies of online request under RTI; Copy of the order u/s 7(1) of RTI Act 2005; copy of online appeal under RTI and reply thereto are all available from pages 169 to 186 at Sr.Nos. 30 to 34. In the very same Paper Book ITA 40 /CHD/2021 A.Y. 2016-17 Page 5 of 19 from Sr.No. 2 to Sr.No. 26 i.e. page 4 to page 161 is the evidence of the queries raised in the e-proceedings.; the queries raised and replies made to the AO. Accordingly, on the basis of this evidence on record, it was his submission that there can be no doubt in the minds of anyone about the fact that all necessary and due enquiries made by the AO before the passing of the order. Inviting attention to Paper Book page 4 to 7, it was submitted that the AO has issued notice u/s 143(2) dated 19.09.2017. It was highlighted that the case was picked up by CASS (Computer Aided Scrutiny Selection) for limited scrutiny for “Whether investment and income relating to properties are duly disclosed.” It was submitted that this fact has been noticed by the ld. PCIT also. Inviting attention to Paper Book page 8, the assessee's response on the e-portal of the Income Tax Department was relied upon. A perusal of the same reads as under : Refer to notice no ITBA/AST/S/143(2)/2017-18/100642 9276(1) dated 19/9/2017. In this regard we hereby submitted that we had fully disclosed all investment and income details in the income tax return filed on 05/08/2016 vide acknowledgement no 3852989300 50816 for the AY 2016-17. 7. Attention was invited to Paper Book page 9 and 10 which is copy of the notice issued electronically dated 10.04.2018 requiring the assessee to file his submissions on or before 16.04.2018 on the following issues : ITA 40 /CHD/2021 A.Y. 2016-17 Page 6 of 19 8. It was his submission that the proceedings continued. Attention was invited to Paper Book page 11 which is the response to the notice dated 10.04.2018. In the remarks column, the assessee had made the following explanation available to the Assessing Officer : “Respected Sir Refer to Notice under section 142( 1) In this regard we are submitting the following information I .Computation of income in the attach- ment. 2.Sale Deed in the attachment. 3.Name of the is Sh Amrik Singh S/O Sh Moti Ram and address of the seller is House no. 547 Siver City main Zirkpur Dist SAS Nagar Mohali. 4.Market price for the purpose of stamp duty was Rs 18200000/-. 5.The Mode of payment is as under i. Rs 50,00,0000 vide cheque no 408096. ii. Rs 50,00,0000 vide cheque no 408096. iii. Rs.50,00,0000 vide cheque no 408096. iv. R s 2818.” ITA 40 /CHD/2021 A.Y. 2016-17 Page 7 of 19 9. The e-proceedings, it was submitted, continued as is evident from the replies of the assessee available on e-portal, copies at pages 12 to 13; alongwith annexures which included copy of e-Proceedings Response Acknowledgement dated 15.04.2018 (Paper Book page 12-13) alongwith the following annexures: 10. Attention was invited to Paper Book page 35 wherein the assessee has made available, Copy of the Sale Deed dated 21.12.2015 vide acknowledgement dated 15.04.2018. This is available from pages 36 to 43 before us. Attention was also invited to copy of the notice dated 10.05.2018 also issued u/s 142(1) of the Act requiring the assessee to make h is reply on the issues. These are appended at pages 44-45 wherein reply is at paged 46. The following reply of the assessee was highlighted : “Dear sir, Please condone the delay in replying the notice as i am busy in some family matters. I am Jangpal singh is retired pensioner and do not have any business so do not have any books of accounts. i have already deposited the all documents demanded by you in my last submission on 16 april 2018.” 11. Similarly, it was submitted that the e-proceedings continued wherein the entire details and annexures enquired a. Computation of total income for a.y. 2016-17. b. Copy of the Bank account statements. c. Certificate dated 13.04.2018 issued by the State Bank of India in respect of sanction f home loan of Shri Sukhbir Singh s/o of Shri Jangpal Singh. d. Payment details and source for purchase of property. 14-15 16-32 33 34 ITA 40 /CHD/2021 A.Y. 2016-17 Page 8 of 19 into were made available which go on upto page 161 of the Paper Book. 12. In the said factual background, ld. AR submitted that the entire details and record has been taken into consideration by the AO before the passing of the order. It was his submission that merely because the order is brief in the face of the detailed evidences on record, it cannot be said that the relevant record has not been looked into. 13. On facts, it was his submission that the presumption drawn by the ld. PCIT that 1/3 rd share in the newly purchased property belonged to the assessee is unjustifiable, arbitrary and a whimsical conclusion drawn as in the Purchase Deed, there is no such mention of any specific allotment of shares in the names of the family members. It was argued that no doubt, the assessee has purchased the property in his own name being a retired pensioner alongwith his wife and son wherein entire investment amounting to the LTCG available to the assessee was fully made by the assessee. The new purchase in Chandigarh was with an investment cost of Rs.1.15 Cr odd whereas Long Term Capital Gain available to the assessee for claiming deduction u/s 54F was only to the tune of Rs.97,78,721/-. The entire amount has been invested in the newly purchased residential premises. Before the AO as well as the ld. PCIT, it had also been submitted that the son had ITA 40 /CHD/2021 A.Y. 2016-17 Page 9 of 19 obtained housing loan of this very property. These facts are not in dispute. The calculations made by the department that 1/3 rd share of the newly purchased property belonged to the assessee and the remaining 1/3 rd to his wife and son was without any basis. It was clarified on query that neither the wife nor the son have claimed any exemption u/s 54 nor has the Revenue considered it to be so. The arbitrary conclusion drawn, it was submitted, is the reason for the arbitrary conclusion of holding that 1/3 rd of Rs.1.82 Crore comes to Rs.60,66,666/-. This presumption drawn by the ld. PCIT it was argued is contrary to facts. 13.1 Inviting attention to copy of the Show Cause Notice, which has been extracted in para 3 of the impugned order and copy of the same is also available in the Paper Book filed at pages 162 to 165. Referring to this, it was his submission that repeatedly the ld. PCIT uses the word “ f r o m th e S a l e D e e d it is presumed that you we r e h o l d i n g 1 / 3 r d s h a r e ” In response thereto, the assessee's reply has been extracted at page 4 of the impugned order wherein the assessee has responded in para 3 of the said reply stating that the presumption drawn that the assessee is holding 1/3 rd share in the property is incorrect on facts. This presumption of the department has been stated to be contrary to facts. In the reply, the assessee has claimed that the assessee had invested the entire net sale consideration ITA 40 /CHD/2021 A.Y. 2016-17 Page 10 of 19 in purchasing the new house. This submission on facts has not been rebutted. The said claim, it was submitted, had been supported by bank statements made available to the AO as well and were also made available before the ld. PCIT. The reliance placed upon the position of law on the allegation that 1/3 rd share belonged to the assessee only, it was submitted, is a presumption contrary to record. All these submissions on facts it was submitted, have been ignored and infact instead of looking into the matter and the issue under consideration, the ld. PCIT passes a casual order duly taking note of the fact that investment of the assessee has been claimed to be of Rs.1,15,18,000/- at page 6 para 5 of the order and housing loan of Rs.40 lacs has been taken in the name of the son. Apart from this, loan to the tune of Rs.23 lacs has been taken from friends etc. and then without making any effort to upset these facts, the PCIT digresses to hold that the AO has failed to examine the eligibility of exemption u/s 54 since the property has been purchased in the joint ownership. 14. Accordingly, it was his submission that the exercise of power is arbitrarily exercised as no evidence has been referred to hold that 1/3 rd share belonged to the assessee. Referring again to the copy of the Show Cause Notice issued by the ld. PCIT, copy available at pages 162-163 dated 06.03.2021. The ld. PCIT has put the assessee to notice of the following facts : ITA 40 /CHD/2021 A.Y. 2016-17 Page 11 of 19 “3.1 On perusal of the assessment record, it has been observed that you have sold a residential plot No. 227 in Mansa Devi Complex, Sector 6, Urban Estate, Panchkula for a consideration of Rs. 1,28,50,000/- on 14.12.2015. The said plot was allotted to you on 10.12.2010 by HUDA for Rs. 10,83,815/-. As per the computation of income placed on assessment records, you have earned capital Gain of Rs. 97,78,721/- on this property and claimed it exempt u/s 54F of the I. T. Act, 1961. During the assessment proceedings, you have filed a sale deed regarding purchase of H. No. 365, Sector-20A, Chandigarh. On perusal of the sale deed, it is noticed that you have purchased the H. No. 365, Sector 20A, Chandigarh on 18.12.2015 jointly in your own name alongwith in the name of your wife Smt. Sumitra & son Sh. Sukhbbir Singh for a consideration of Rs. 1,82,00,000/-. From the sale deed it is presumed that you was holding 1/3 rd share of the property as the share allocation of the purchasers in the sale deed is not mentioned. Thus, you have invested Rs. 60,66,666/- only for purchase of this house. 3.2 In view the above facts, it is held that you have claimed excess claim of exemption u/s 54F at Rs. 98,78,721/- instead of Rs. 46,16,671/-. The calculation of amount of exemption u/s 54F is worked out as under: Total sale consideration : Rs. 1,28,50,000/- LTCG shown by the assessee : Rs. 97,78,721/- Deduction u/s 54F claimed by you : Rs. 97,78,721/- Eligible deduction u/s 54F = investment made * Capital Gain /Sale price 6066666 *9778721 /12850000 Rs. 46,14,671/- Excess exemption claimed by you Rs. 51,62,050/- 4. In view of the above facts, the order passed u/s 143(3) of the Income Tax Act, 1961 in your case is erroneous and prejudicial to the interest of the Revenue. You are therefore requested to show cause as to why the aforesaid order of assessment may not be revised under the provisions of Section 263 of the Income Tax Act, 1961. (emphasis supplied) 15. Attention was again invited to another notice issued by ld. PCIT on 13.03.2021 treating it to be the last opportunity. Attention of the Bench was again invited to the assessee's reply on facts available at Paper Book page 167. For ready reference, the same is reproduced hereunder : “Refer to your DIN & Notice No: ITBA/REV/F/REV 1/2020-21/1031461029(1) Dated 13-03-2021 relevant to AY 2016-17 to PAN Number ABKPT7336H. ITA 40 /CHD/2021 A.Y. 2016-17 Page 12 of 19 In this regard I am submitting my Representation as follows. 1. I had sold a residential Plot No .227 in Mansa Devi Complex, Sector 6 Urban estate Panchkula in consideration of Rs 1,28,50,000/- The said plot was allotted to me by HUDA on 10-12-2010 for Rs 10, 83,815/- 2. As per computation, I had earned LTCG of Rs 97,78,721/- which was claimed as exempt u/s 54F as the entire Net Consideration had been invested in purchasing the Residential House No 365, Sector 20-A, Chandigarh and got it registered on three names vis Jangpal Singh (Myself), Sumitra (my wife) and Sukhbir Singh (My Son). The full purchase price of the house is Rs 1,82,00,000/- 3. In your notice you have presumed that I am holding l/3 rd share of the property and as per tills presumption, invested only Rs 60,66,666 which is 1/3 of the total purchase price (1,82,00,000). In this regard I would like to bring to your kind notice that I had invested the entire net sale consideration in purchasing the new house and got it registered in the names of three family members including me. I had already submitted the supporting documents (bank statements) at the time of previous assessment, same is also available at online portal. 4. Regarding the presumption of considering the l/3 rd share which is the basis of your notice, as per the various case laws decided by the various Honorable High Courts, it is well established fact that for claiming full Exemption u/s 54F entire net consideration must be invested with in the prescribed time limits in the house property and there is no restriction on including the names of family members in new house. The reference of a few case laws decided on this fact are as follows:............” (emphasis supplied) 16. Referring to the said reply, it was submitted that various case laws were relied upon in support of these submissions; namely; CIT Versus Ravinder Kumar Arora (High Court of Delhi) dated 27 September 2011; CIT -XII Versus Kamal Wahal (High Court of Delhi) dated 11 January 2013 ; CIT Versus Gurnam Singh (High Court of Punjab and Haryana) dated 01/04/2008 and CIT Versus Dinesh Verma (High Court of Punjab and Haryana) dated 06/07/2015 were relied upon by the assessee. Attention was again invited to the aforesaid reply where finally the assessee pleads “unnecessary harassment to an old age person like me.” On account of incorrect presumptions on facts. The specific reply extracted in the order was highlighted: ITA 40 /CHD/2021 A.Y. 2016-17 Page 13 of 19 “On the basis of rulings given by high courts in above case laws, it can be deduced that the presumption of considering the l/3 rd share instead of the extent of investment made in purchase of new property from the sale proceeds of earlier property is erroneous. The revision of order passed u/s 143(3) of the Income Tax Act 1961 in my case on the basis of such erroneous presumption on which the legal position is already cleared by various high courts may be detrimental to the natural justice and bring lots of unnecessary harassment to an old age person like me.” 17. The ld. AR also made submissions on information sought under the Right to Information Act and inspection of file and the reply, on the basis of which it was his submission that the Revisionary powers were exercised on the basis of Audit Objections etc. These documents are available from page 169 onwards. On the basis of these facts, various arguments were advanced on the fact that the Revisionary powers were exercised on the grounds of audit objection. However, on the merits of the order passed, even otherwise it was his submission on a reading from the Sale Deed that the presumption that the assessee's wife and son had 1/3 rd share each is an inference based on no facts. It was submitted that the assessee being a retired pensioner has included the names of his wife and son in the property in order to ensure safety and convenience etc. for the family members in the event of demise of any one. Though various other arguments have been raised by the parties, however, we are of the view that in the peculiar facts of the present case, those arguments for the moment can be ignored. However, we shall address these subsequently. ITA 40 /CHD/2021 A.Y. 2016-17 Page 14 of 19 18. The ld. CIT-DR Shri Vivek Nangia heavily relying upon the impugned order submitted that a reasoned order has been passed by the ld. PCIT after giving full opportunity to the assessee to advance his case. 19. The ld. CIT-DR objected to the inferences drawn by the assessee that the re-opening was done on the basis of an Audit objection. The Show Cause Notice issued by the ld. PCIT, it was submitted, is very clear and it does not made any mention of the reason being Audit Objection. The arguments advanced on the issue, it was submitted, have no basis. 20. Heavy reliance was placed upon the Show Cause Notice issued by the ld. PCIT. It was also his submission that the reply of the assessee and the facts have been taken into consideration. It was his submission that when this is read alongwith the brief assessment order, it clearly demonstrates that no enquiry had been made. It was submitted that merely because number of hearings have taken place at the assessment stage this fact cannot lead to the presumption that the claim of exemption u/s 54F has been correctly examined. 21. The case law relied upon by the ld. AR was stated to be not relevant or applicable, on the other hand reliance was placed upon decision of the jurisdictional High Court in the case of Kamal Kant Kamboj Vs ITO 397 ITR 240(P&H). ITA 40 /CHD/2021 A.Y. 2016-17 Page 15 of 19 22. We have heard the rival submissions and perused the material available on record. On a perusal of the same, we are of the view that in the facts of the present case, the Revenue has failed to demonstrate that the assessee's share in the newly purchased property for which deduction u/s 54F had been claimed was to the tune of 33%. We have taken into consideration the facts as available in the Sale Deed dated 21.12.2015 available at pages 36 to 43 which has been filed in the e-proceedings in response to acknowledgement dated 15.04.2018. A perusal of the same shows that the vendees mentioned in paragraph 2 at page 37 are; “(i) SH. J A N GPAL S IN GH T A NWAR , S /0 SH . BAN I SIN GH , ( ii) SMT . SUM IT RA , W /0 SH. JA N GPA L S IN GH T AN WA R A N D ( iii) SH. SUK HBIR S IN GH, S /0 SH . JA N GPA L S IN G H T A NWAR , A LL R/0 HOUSE N O.1 2 /3 , B A NK C OL ONY , MA N I MA JR A , U.T ., CHA N D IGA R H (her e in af te r r ef e rre d to as th e V e ndee s , wh ic h te r m sh all wh e re the c on te x t so ad mit s in clu de th e ir h e ir s, ass ig n ees, exe cu to r s , succ e ss or s , leg al re pre s en tat ive s and ad min is tr a to rs) of the o the r par t of th is de e d. Possibly on account of this fact, the ld. PCIT has presumed and unilaterally drawn a conclusion that each of the purchaser of the property must necessarily have an equal share. This presumption is arbitrary and de-hors facts. A further perusal of specific para 11 at Paper Book page 40 which is a continuation of the Sale Deed wherein the assessee is a ITA 40 /CHD/2021 A.Y. 2016-17 Page 16 of 19 “purchaser” the understanding of the parties declaring the world at large is that the vendees are absolute owners of 100% share of..........” For the sake of completeness, it is extracted hereunder: “11. That the said Vendees have now become the absolute owners of the 100% SHARE OF FREE HOLD RESIDENTIAL HOUSE NO.365, BUILT ON PLOT NO.5, STREET-P, SECTOR 20-A, CHANDIGARH, MEASURING 198.33 SQ.YDS., RP NO.11863, under sale, in full proprietary rights and the said Vendees are now entitled to apply to the Estate Officer, Chandigarh Administration, U.T., Chandigarh and get the ownership of the said house transferred in their (Vendees) names in the records of the Estate Officer, U.T. Chandigarh.” 23. We have also seen that the copy of the bank account statements available at pages 16-32 of the assessee have been made available to the AO as well as the ld.PCIT (to the AO in response to e-proceedings, response acknowledgement dated 15.04.2018) alongwith computation of total income ((14-15), page 33 it is seen is a certificate issued that in the case of Shri Sukhbir Singh, son of the assessee, housing loan has been granted. All these facts, submissions and evidences have been made available to the ld. PCIT also. We further find that these facts and evidences have not been upset by the ld. PCIT or ld. CIT-DR. Without caring to refer to the error in the evidences available on record, the exercise of power is open to the challenge of being exercised whimsically and arbitrarily. The only factor which as per record has exercised the ld. PCIT to pass the order under consideration is the fact that the names of the assessee’s wife and son have also been appended to in the Purchase Deed. ITA 40 /CHD/2021 A.Y. 2016-17 Page 17 of 19 We find that in the facts of the present case, where there is no dispute that the total purchase price of the specific property was Rs.1,28,50,000/- where we have also seen that the assessee had Long Term Capital Gain of Rs.97,78,721/- and has invested it for the purposes of this property in his name. Thus, the mere fact that his wife’s name is also appended to therein alongwith his name and that of his son who as per record has obtained a housing loan for the stated property, we find that these facts do not erode the claim of exemption of the assessee u/s 54. The fact that this entire amount has been invested in the property is not disputed by the Revenue. We have also seen that it has not been upset by the ld. PCIT in the order. All relevant documents are available on record. What enquiry/investigation the AO should have done in the first round, we find has been left unaddressed. In the face of the consistent stand of the assessee that the entire Long Term Capital Gain from the sale of the property has been applied to the new property. Documents substantiating this claim are available on record and have not been upset. The revisionary power u/s 263 of the Act cannot be allowed to be exercised in a casual arbitrary manner. It is incumbent upon the ld. PCIT to point out the error in the order and that too such an error which can be said to be prejudicial to the interests of the Revenue. In the facts of the present case the Revenue has dismally failed on this count. Accordingly, in the ITA 40 /CHD/2021 A.Y. 2016-17 Page 18 of 19 said factual background where we find no evidence for supporting the conclusion that only 1/3 rd share belonged to the assessee. The exercise of power by the ld. PCIT in these peculiar facts cannot be upheld. The case laws relied upon by the ld. PCIT in the order and the ld. CIT-DR including the one cited by the ld. AR, accordingly, we hold do not warrant any discussion. At the very threshold itself, we have seen that the issue being purely factual, presumptions cannot be allowed to prevail and taint the facts on record. However, since much reliance for the Revenue has been placed upon the decision of the jurisdictional High Court in the case of Kamal Kant Kamboj (cited supra) we find on a careful reading of the same and hold that it does not have any applicability to the facts of the present case. In the facts of the said decision which was rendered by the jurisdictional High Court, the admitted fact available on record was that the assessee had invested in the property exclusively in the name of his wife. As a result thereof, the exemption for Long Term Capital Gain u/s 54B was held to be not allowable as the investment had not been made in the name of the assessee. In the facts of the present case, the new purchase has been made in the name of the assessee but funds largely have flown from the assessee and the said fact is not upset. The mere fact that names of the wife and son also is included, we hold has no relevance for determining in the peculiar facts the issue at hand. In the facts of the ITA 40 /CHD/2021 A.Y. 2016-17 Page 19 of 19 present case, the suspicions entertained by the ld. PCIT have not been translated into facts despite the fact that the entire documents were available. Accordingly, on a consideration of facts and circumstances and position of law, we find that the order deserves to be quashed. Ordered accordingly. 24. In the result, the appeal of the assessee is allowed. Order pronounced on 22 n d June,2022. Sd/- Sd/- (VIKRAM SINGH YADAV) (DIVA SINGH) लेखा लेखालेखा लेखा सद瀡य सद瀡यसद瀡य सद瀡य/ Accountant Member 瀈याियक 瀈याियक瀈याियक 瀈याियक सद瀡य सद瀡यसद瀡य सद瀡य/ Judicial Member “Poonam” आदेश क琉 灹ितिलिप अ灡ेिषत/ Copy of the order forwarded to : 1. अपीलाथ牸/ The Appellant 2. 灹瀄यथ牸/ The Respondent 3. आयकर आयु猴/ CIT 4. आयकर आयु猴 (अपील)/ The CIT(A) 5. िवभागीय 灹ितिनिध, आयकर अपीलीय आिधकरण, च瀃डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड榁 फाईल/ Guard File आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar