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2005 (10) TMI 231 - ITAT DELHI-GClaim of exemption u/s 54F - Capital gains - new property let out for commercial use - Additional Evidence - Voluntary Disclosure of Income Scheme, 1997 ('VDIS') - Whether the new property constructed by the assessee is a residential house or not - HELD THAT:- Mere non-residential use would not render a property ineligible for s. 54F benefit, if it otherwise is a residential house. On this aspect, we do not find any positive finding by the lower authorities and neither is there any relevant material before us to arrive at a finding. Thus, for this limited purpose, the issue is restored to the file of the AO. If the assessee is found to have constructed a residential house, whatever may be the use it has been put to, the assessee can be said to have fulfilled the conditions envisaged u/s 54F. Quantum of deduction - In case the assessee is found to have constructed a residential house, next issue is with regard to the quantum of deduction under s. 54F. We find that the AO allowed the same at Rs. 81,300 on the ground that only such amount has been incurred during the year, and there is no evidence of balance spending. Apart from that, the only evidence which the assessee has been able to substantiate is the certificate under vms evidencing the investment of Rs. 1,50,000 towards construction of the new building. To that extent, in our view, the assessee can be construed to have discharged its onus of proving appropriation of money towards construction of the new building. Therefore, we consider it fit and proper to set aside the order of the CIT(A) and direct the AO to allow further benefit of s. 54F to the extent of Rs. 1,50,000 if the assessee is otherwise found eligible for s. 54F benefit as the abovestated verification exercise. However, if as a result of the verification to be carried out by the AO, the assessee is found not to have constructed a residential house, no deduction shall be allowable to the assessee and the AO shall be at liberty to pass such orders as is in accordance with law. Thus, the assessee partly succeeds on this ground, as above, for statistical purposes. In the result, the appeal of the assessee is treated as partly allowed.
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