TMI Blog2013 (12) TMI 1411X X X X Extracts X X X X X X X X Extracts X X X X ..... n No.44/Mum/2011 for the same assessment year. 2. The cross objection filed by the assessee is in support of the order of the learned CIT(A), therefore, the same does not require any separate adjudication upon. Accordingly, the same is treated as dismissed as having been rendered infructuous. 3. Now, we come to the appeal preferred by the department, wherein the department raises objection in regard to allowing the claim of exemption under Section 54F. 4. Brief facts of the case are that during the year assessee offered receipts of Rs.41,51,196/- on account of sale of Khopoli land. Against this the assessee reduced the indexed cost of acquisition of the property. The difference amount of Rs.33,19,314/- was also claimed as exempt from capital gain u/s.54F of the I.T.Act. The assessee filed a sale agreement of the said plot which was dated 1.9.2005. The AO found that according to Stamp duty authority the registration value of the property was Rs.43,06,000/- in the place of sale consideration of Rs.40,08,556/-. The AO adopted the value determined by stamp duty authorities for the purposes of capital gain. The assessee took the value determined by the Stamp duty authority for det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purchaser on 1.9.2005. It was also argued that since he intended to sell the property way back in 2000 and received advances from the purchaser, he started reconstructing their residence. As stated above, this contention of the assessee, was not accepted by the AO. Accordingly, the claim of the assessee was rejected. 5. Aggrieved by the order of the AO, the assessee preferred appeal before the CIT(A), before whom, detailed submissions were filed, which has been recorded by the learned CIT(A) in para 3.3 at pages 4 to 13 of his order. Learned CIT(A), after considering the submission and perusing the material on record, satisfied with the explanation filed on behalf of the assessee. Accordingly, the issue was decided in favour of the assessee. 6. Hence, the present appeal by the department here before the Tribunal. 7. Learned DR placed reliance on the order of AO. It was further submitted that the assessee has made construction by borrowing funds and, therefore, deduction under Section 54F is not allowable as held by the Tribunal in the case of Milan Sharad Ruparel Vs. ACIT, reported in [2009] 27 SOT 61 (Mum) and the decision of the Hon ble Kerala High Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in [2008] 20 SOT 468 (Mum.), the Tribunal decided the issue in favour of the assessee and this decision of the Tribunal has been confirmed by the Hon ble Bombay High Court while deciding ITA No.1825/2009, vide order dated 7-10-2009. Copies of which have also been filed. Even it was submitted that the funds provided by the individual to the HUF and a journal entry was passed and this copy of balance sheet etc. were also filed before the AO, which were not taken into consideration. Attention of the Bench was drawn on the relevant portion of the order of the AO. 9. We gave our thoughtful consideration to the submissions advanced at the hands of the learned counsel of the assessee as well as learned DR. After considering the submission and perusing the material on record, we found no infirmity in the order of the learned CIT(A). The findings of the learned CIT(A) have been recorded in paras 3.4 3.5, which are as under :- 3.4 I have considered the facts of the case, arguments of the Assessing Officer and the written submissions of the Authorised Representative of the appellant. Issue to be decided is that when the transfer of property was complete. According to the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment of Rs.1,06,04,654/- in the FY.2003-04, an amount of Rs.41,39,942/in FY.2004-05 and an amount of Rs.8,28,596/- in the FY.2005-06. The AO himself has observed that construction work was complete in the month of August 2005 with a last payment made to M/s.Water Proofing Associates on 22.8.2005. Hence, it can be seen that the construction is complete after the date of transfer. The appellant has relied upon various case laws which hold that the commencement of construction can begin before the date of sale. However, a completion of the construction only has to be after the date of transfer and within 3 years. Such a view has been held in the case of CIT Vs. J R Subramanya Bhatt 165 ITR 571 (Kar), H K Kapoor 234 ITR 753 (Alh). As the appellant has invested the entire capital gain in construction of the house property he is eligible for deduction u/s.54F. The addition made by the Assessing Officer amounting to Rs.33,19,314/- is deleted. We have taken into consideration the case laws relied upon by the learned DR as well as learned AR and we found that the learned CIT(A) has considered all the aspects, who categorically noted that registration on 1-9-2005 was only a formality as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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