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TMI Blog2012 (8) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... e of deduction u/s 54 of the IT Act on the ground that the assessee has not made investment within the time limit specified under section 54 of the Act.; ii) Whether in the facts and circumstances of the case, the Commissioner of Income Tax(Appeals) is justified in confirming the addition on account of commission paid of Rs.39,550/-. 3 First issue is regarding deduction u/s 54 of the I T Act. 3.1 During the year the assessee has sold a property at Safalya Jeevan Co-op Housing Society Ltd, Ghatkopar. The assessee was a co-owner and had 50% share in the said property and the balance 50% was of her husband. The assessee admitted capital gain on transfer of this property and claimed the deduction u/s 54 on account of investment of Rs.12,07,8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d flat vide possession letter dated 29.4.2005. Therefore, the ld AR has submitted that the assessee has acquired the new flat subsequent to the sale of the old flat and the date of purchase of the new flat is within the period as prescribed u/s 54 of the I T Act. He has pointed out that the assessee has made the final payment of the purchase consideration on 1.2.2005. He has further submitted that in the case of the husband of the assessee, the Commissioner of Income Tax(Appeals) has allowed the claim u/s 54 on identical facts and the revenue has not challenged the order of the Commissioner of Income Tax(Appeals) in the case of the assesee's husband. He has filed a copy of the order of the Commissioner of Income Tax(Appeals) in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was entered into by the parties, the flat in question was not in existence; but was to be constructed by the builder. The assessee has filed the possession letter dated 29.4.2005. As per the provisions of sec. 2(47)(v) of the I T Act, the transaction of transfer is deemed to be completed at the time when the conditions u/s 53A of the Transfer of Property Act are fulfilled. As per the deeming provisions, it is not absolute transfer by way of executing the sale deed or transfer of legal title; but the transaction is deemed to be a transfer of capital asset, if the conditions, as enumerated u/s 53A of Transfer of Property Act are fulfilled. One of the essential conditions is handing over of the possession and part payment of consideration. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been brought before us by the revenue to show that the order of the Commissioner of Income Tax(Appeals) in the case of the husband of the assessee was not accepted by the revenue. The Commissioner of Income Tax(Appeals) in the case of the husband of the assessee vide order dated 30.11.2008 has decided the issue in para 2 .3 are as under: "2.3 I have considered the submission of the ld counsel and in view of the two decisions of the Jurisdictional High Court cited above viz CIT vs Geetadevi Pasari 17 DTR(Bom) 280 and Hon'ble Mumbai High Court in Chaturbhuja vs CIT 260 IR 491 (Bom), I allow the appeal of the assessee by holding that the crucial date for calculation of the date of transfer for capital gains will be 28.5.2005 (26.4.2005 as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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