TMI Blog2010 (2) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... nue are therefore, rejected. - ITA No.3582/Mum/2009 - - - Dated:- 17-2-2010 - SHRI D.K. AGARWAL, AND SHRI R.K. PANDA, JJ. Appellant by: Shri Mohd. Usman Respondent by: Shri Paras Savla and Shri Rangesh Banka ORDER Per D.K. AGARWAL (JM). This appeal preferred by the revenue is directed against the order dated 12.3.2009 passed by the ld. CIT(A) for the Assessment Year 2004-05. 2. Briefly stated facts of the case are that the assessee is an Indian origin and settled in Canada since 1994. The assessee had purchased a flat in April, 1984 in Mumbai under the BHDB scheme for Rs.1,31,401/-. This flat was sold for Rs.16,00,000/- on 16.12.2003. The cost of index was claimed to be at Rs.4,83,556/-. The cost of improveme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50 C(3) of the Act. The Assessing Officer computed cost of indexation u/s.48(ii)(a) at Rs.4,83,556/- worked out by the assessee. The Assessing Officer also computed cost of improvement at Rs.1,46,308/- (Rs.39,500 x 463/125) and Rs.53,740/- (48,000x 463/406). The claim of expenses of Rs.97,000/- was examined by the Assessing Officer. The Assessing Officer is of the view that a sum of Rs.25,000/- claimed on account of professional fees Rs.25,000/- being paid to Chartered Accountant was not allowable as the said expenses does not fall u/s.48(i) of the Act. Thus the Assessing Officer calculated long term capital gain as under: Sale Value as per section 50C(3) of the Act. Rs.21,11,560 Less: (i) Purchase price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o doubted that whether cent per cent of the capital gains proceeds have been utilized in new acquired property. With regard to Mumbai Tribunal decision in Prema P. Shah vs. ITO (282 ITR (AT) 211), the Assessing Officer has observed, with due respect to the honourable Tribunal, that this decision has not been accepted by the department and an appeal u/s.260A is filed for which it needs no comments. The Assessing Officer, however, placed reliance on the decision in Leena J. Shah vs. ACIT Cir.1(2), Baroda (ITA No.2467/Ahmd/2000 (dated 10.11.2005) wherein it has been held that since this Act is applicable in India the provision of this Act are also applicable in India, same are required to be read accordingly. Thus, section 54F is also require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.32.37 lacs, thus, the whole consideration has been utilised in the purchase of new assets and hence capital gain is not chargeable u/s.45 of the Act. He further observed that section 54F does not specify that the new asset should be situated in India. Therefore, in view of there being no specific restriction on location of new asset, the benefit of sec. 54F cannot be denied, provided if all other considerations are satisfied. Since the appellant has fulfilled all other conditions of sec.54F, the ld. CIT(A) was of the view that the appellant is entitled to benefit of sec.54F of the Act. The ld. CIT(A) while observing that the appellate authorities are bound to follow ratio laid down by the Jurisdictional Tribunal as held in Om Prakash Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed of the appeal vide order dated 11.12.2007 after observing that the tax incidence is less than Rs.4.00 lacs. He also placed on record the said decision of Hon ble High Court. He therefore, submits that the order passed by the ld. CIT(A) be upheld. 7. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that the facts are not in dispute inasmuch as there is no dispute that the assessee is a Non-Resident Indian. The assessee sold his flat for Rs.16.00 lacs on 16.12.2003 which was purchased in April, 1984 and has shown the net capital gain at Rs.7,97,801/- and claimed that since he has purchased a house in Canada for Indian Rs.64,75,000/- after repatriating the sale consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Leena J. Shah (supra), copy of which is not available to us, we find that in that case deduction u/s.54F was considered whereas in the case before us the status of the assessee is Non Resident Indian and the issue is with regard to the deduction u/s.54 of the Act. Further, the order of the Jurisdictional Tribunal has more binding effect. Therefore, the decision relied on by the revenue is not applicable to the facts of the present case. 11. That being so and keeping in view that it is settled law that if there are two views, the court has to adopt that interpretation which favours the assessee vide CIT vs. Vegetable Products (1973)88 ITR 192(SC) we are of the view that the assessee is entitled to deduction under section 54 of the Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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