TMI Blog2007 (5) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... sold flat No. 201 in Picasso Co-operative Hsg. Society for a total consideration of Rs. 63 lakhs on 27-11-2000. The assessee had claimed exemption under section 54 of the IT Act on account of long-term capital gain arising on the sale of Picasso flat against purchase of Flat No. 702 in "Rushabh" Apartment at Khar, Mumbai. The assessee claims to have purchased the said flat for a total consideration of Rs. 68 lakhs vide agreement dated 19-9-2001. 4. The Assessing Officer while going through the assessment records for the earlier year found that the assessee had claimed exemption under section 54 of the Income-tax Act on sale of flat No. 94 of Tirupati Towers in assessment year 1998-99 by showing the investment in flat No. 702, Rushabh Apartment at Khar, wherein the assessee had 1/3rd share. Accordingly on capital gains of Rs. 1,61,372 on sale of flat in Tirupati Towers exemption was claimed to the extent of Rs. 22,70,000 being 1/3rd share in Rushabh Apartments. The assessee during the course of assessment proceedings was requisitioned to explain why the claim under section 54 of the Income-tax Act was again made in the year under consideration. In reply, the assessee state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hase of flat No. 702 in Rushabh in assessment year 1998-99 against sale of residential flat at Tirupati Towers. Rejecting the claim of the assessee that she has withdrawn her claim of exemption under section 54 by paying additional taxes for assessment year 1998-99, the CIT(A) held that the same was not in order as the return could not be revised after one year from the end of the relevant assessment year. The assessee had revised her return of income on 11-2-2003 which is well beyond time and is non est return. The CIT(A) also observed that the capital gains arising out of sale of two houses could not be claimed by investing in one flat. The assessee is aggrieved and hence this appeal. 6. Ms. Arati Vissanji appeared for the assessee and Mr. Ravindra Kumar appeared for the revenue and put forward their rival contentions. 7. We have heard the rival contentions and perused the records including the copies of agreement and other relevant documents filed by the assessee by way of Paper Book during the course of hearing. 8. The assessee had sold flat No. 201 in Picasso and the long-term capital gains arising on the said flat was claimed as exempt under the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-2-2000 2,00,000 13-2-2000 2,00,000 23-5-2000 1,00,000 11-12-2000 8.00,000 Total consideration paid 68,00,000 11. The mode of payment was by way of cheque issued on Vijaya Bank by the assessee. 12. The details of payment made by the assessee are furnished at page 146 of the Paper Book along with the mode of payment at page 147 of the Paper Book. 13. The occupancy certificate for the said building was issued by the Municipal Corporation of Greater Bombay on 22-7-1999 as per the letter No. CE/012/WS/AH. The Copy of certificate is furnished at page 139 of the Paper Book. 14. The assessee is filing her return of income for the previous years along with the balance sheet. The assessee files the balance sheet as on the close of the year. In the balance sheet filed as on 31-3-1998, the value of flat at Khar has been shown at Rs.18 lakhs being the amount paid to Parashar Thakkar. The said balance sheet is placed at page 148 of the Paper Book. In the balance sheet as on 31-3-1999 the said investment has been shown at Rs. 38 lakhs as per the copy of the balance sheet filed at page 149 of the Paper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment but no credit for the same has been allowed to the assessee. On a specific query from the Bench, the Ld. AR for the assessee admitted that there is no provision of the Income-tax Act which empowers the assessee to file the revised return after the completion of the assessment under section 143(3) of the Income-tax Act. The Ld. DR for the revenue pointed out that the assessment under section 143(3) for assessment year 1998-99 was completed on 3-11-2000 and the revised return was filed by the assessee on 11-2-2003. Accordingly, the revised return filed by the assessee on 11-2-2003 for assessment year 1998-99 withdrawing its claim under section 54 of the Income-tax Act is a non est return and the same is rejected. 17. The assessment before us is assessment year 2001-02 which ends on 31st March, 2001 and the return of income for the year under consideration was filed on 23-2-2002 wherein the claim of set off of purchase of flat No. 702 at Rushabh against sale of flat in Picasso under section 54 of the Income-tax Act was made. The revised return for assessment year 1998-99 was filed as late as 11-2-2003, i.e., even after the filing of return of income for the year un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d into an agreement to purchase the said flat No. 702 in Rushabh Apartments as per the letter of allotment dated 1-10-1977, pursuant to which the instalments were paid by the assessee ranging between the period 30-12-1996 to 23-5-2000. The last instalment of Rs. 8,00,000 was paid on 11-12-2000. The assessee has shown the said flat to be in her self-occupation in the balance sheet filed as on 31-3-2000. Accordingly, the assessee had been put into possession of the property prior to 31-3-2000. The conveyance of the agreement entered on 19-9-2001 also recognizes the assessee has been put into possession of the property on 9-3-2000, though the parties referred to a tenancy agreement between the vendor and purchaser. Reference is invited to clause 20 of the agreement dated 19-9-2001 at page 103 of the Paper Book and reproduced in the paras hereinabove. The clause 20 of the Agreement clearly states that the draft of the tenancy Agreement was submitted at a date which is not clear, but approved by the Society on 4-9-1999. This clearly proves that apartment was ready for occupation prior to 4-9-1999. 21. The provisions of section 2( 47 )of the Income-tax Act were amended with effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Apex Court in Mysore Minerals Ltd. v. CIT had in turn relied on the decision of Apex Court in CIT v. Podar Cement (P.) Ltd. 26. The provisions of the Income-tax Act are to be read in harmony though the decision of the Apex Court in Podar Cement (P.) Ltd. is for the purpose of taxation of income under the head "Income from property" but similar amendments were made in the definition of transfer by way of insertion of clause ( v ) to section 2( 47 ) of the Income-tax Act wherein the definition of transfer was amended. 27. The occupancy certificate was issued on 22-7-1999, draft for tenancy Agreement was approved by Society on 4-9-1999 and possession was allegedly provided by the builder by 9-3-2000 as referred hereinabove. The agreement for sale dated 19-9-2001 is an agreement executed on the date of registration and has no relevance in view of the provisions of clause ( v ) to section 2( 47 ) of the Income-tax Act. The possession letter dated 19-9-2001 is a fabricated document between the parties and has no relevance to the possession being handed over on the said date. The assessee was put in possession of the said property during the financial year 1999-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
