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TMI Blog2013 (12) TMI 1411X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 determining the capital gain of Rs.33,19,314/-.The AO further noted that the assessee claimed exemption u/s.54F to the extent of Rs.33,19,314/-. It was found that the assessee claimed exemption on account of new asset of the house property, which was constructed with a ground plus four floors on the plot bearing NO.7 Friends Co.op Society, JVPD Mumbai. In this property 50% share belongs to the assessee and the other 50% belongs to Mukesh Choudhary HUF. The AO found that assessee spent year-wise Rs.1,06,04,654/- in FY.2003-04, Rs.41,39,942/- in FY.2004-05 and Rs.8,28,596/- in FY.2005-06. The AO observed that the assessee started construction activity in FY.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 CIT Vs. V.R.Desai, reported in [2011] 197 Taxman 52 (Ker.), copies of which have also been filed. 8. Learned counsel of the assessee stated that in fact, the AO could not understand the facts in right perspective. However, learned CIT(A) has considered the facts in details which were filed before him. It was explained that the assessee entered into an agreement of sale on 25-11-2000 with advance of Rs.6,50,000/- was received by the assessee and possession of the property was given to the purchaser. Thereafter certain dispute arose between the assessee and the buyer and the buyer filed a suit against the assessee before the Civil Court of Panvel. In turn as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el 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 Officer it is complete only with the registration of conveyance deed on 1.9.2005. According to the appellant the transfer was complete with the order of Civil Court on 16.4.2005. The High Court had already held that the purchasers are permitted to carry out activities on the property to be sold by the appellant with the undertaking that if the final decision of Civil Court is ordered in favour of the appellant the constructions will be demolished by them at their own cost and that the amount will be claimed by the appellant from the court. Accordingly the matter was referred to Civil Court, Panvel and the purchaser deposited a sum of Rs.197 lakhs. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 the date of the order of the civil court was the date of transfer of the property. Learned CIT(A) has observed that the possession of the property has already been given by the assessee. Since there was certain dispute between the assessee and the purchaser, therefore, mater went to the civil court and the civil court decided the issue on 16-4-205, which is the date of transfer also because on that date the court has finalized the issue in favour of the purchaser. Accordingly, the registration which was made on 1-9-2005 was a formality and, therefore, the crucial date of transfer has to be taken into consideration as 16-4-2005. Even an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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