TMI Blog2014 (4) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... Decided in favour of assessee. - ITA No.1774/Hyd/12 - - - Dated:- 21-1-2014 - SHRI CHANDRA POOJARI AND SMT. ASHA VIJAYARAGHAVAN, JJ. For the Appellant : Shri P.Murali Mohan Rao For the Respondent: Shri Solgy J.Kottaram DR ORDER Per Smt. Asha Vijayaraghavan, Judicial Member: This appeal by the assessee is directed against the order of the Commissioner of Income-tax(Appeals) Vijayawada dated 18.7.2012 for the assessment year 2003-04. 2. Effective grievance of the assessee in this appeal relates to disallowance of assessee s claim for relief under S.54F of the Act. It is also the grievance of the assessee in this appeal that the Assessing Officer was not justified in treating the entire sale consideration for the transfer as the capital gains liable to be in the hands of the assessee. 3. Facts of the case in brief are that the assessee, an individual, has not filed his return of income for the assessment year 2003-04. From the information received from DDIT(Inv), it came to light that the assessee has earned capital gains, which were not disclosed, and consequently, within the meaning of S.147 of the Act, the Assessing Officer, held the view that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccording to the Assessing Officer, the long term capital gain worked out to Rs.55,75,661 of which the assessee s share came to Rs.27,87,831, which was assessable to tax in the assessment year 2001-02. Since the assessee had not declared any capital gains in the returns of income filed for any of the assessment years, the Assessing Officer came to the conclusion that the income chargeable to tax has escaped assessment to the extent of Rs.27,87,831. The Assessing Officer, therefore, referring to the case-law in the form of decisions of the Tribunal on the point, and in the absence of any explanation from the assessee to the proposed action of assessing the capital gains in the year under appeal, completed the assessment, on a total income of Rs.27,87,831, which is the amount of capital gains worked out as above, vide order of assessment dated 10.12.2008 passed under S.143(3) read with S.147 of the Act. 4. On appeal before the CIT(A), the assessee raised various contentions, besides filing written submissions, to the effect that the Assessing Officer should have given due cognizance to the cost of acquisition of the land; cost of construction; cost of improvement and exemption unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring in different periods of time. The co-ordinates of the site as in the approved plan match with the co-ordinates in the Google Earth relating to Ohris Hotel, Banjara Hills in D.No.8-2-682/3, during the impugned period when the appellant is supposed to have constructed the residential house. Since the property built is a commercial property and not a residential property, there is no justification for claiming deduction under S.54F on the ground that a residential house has been built within 3 years. Accordingly, the appellant s claim made during the appeal proceedings for allowance for exemption u/s. 54F of the Act, is hereby rejected. Aggrieved by the rejection of his claim for relief under S.54F of the Act, assessee is in this appeal before us. 5. The learned counsel for the assessee reiterating the contentions urged before the lower authorities submitted that the assessee is very much entitled for relief under S.54F of the Act. He submitted that the assessee has given land for development and got in return constructed residential property, which is eligible for relief under S.54F of the Act. He further submitted that the land was given by the assessee to the develope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a) Perusal of the sale deed shows that the property was a residential property especially the narration at para 10 at Page 14 of the deed, which has been reproduced by the CIT(A) at page 4 at para 2.4 of his order. b) The plan attached to the sale deed shows the construction of bed room, Kitchen, study etc., showing that the property is residential one. c) The MCH permission dated 10.05.2000 has approved the property as residential complex d) The bank guarantee for security deposit given by State Bank of India to MCH also refers to the property as residential complex. e) Permission / No objection certificate given by the Fire Service Department also refers to the property as residential complex f) The memorandum of understanding dated 14.01.2001 entered for the joint development and construction of the said property also refers to the construction of residential complex. We find no infirmity in the view taken by the CIT(A) as to the residential nature of the property purchased by the assessees, considering the factual aspects noted above. Even though the property was subsequently leased out to M/s.APP Lab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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