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Sh. Nand Lal Sharma L/h Shri Mahavir Prasad Versus The ITO

2015 (6) TMI 482 - ITAT JAIPUR

Denial of exemption u/s 54 - deposit of net consideration into capital gain account scheme on 31-03-2009 - Held that:- Section specific reference to sec. 139 cannot be construed only to sec. 139(1) alone but it includes all the sub-section of 139 including 139(4). Therefore, if the sale consideration is utilized for the construction or purchase of a new residential house before due date of filing of return u/s 139(4) i.e. 31-3- 2010 in this case, the same will be eligible for exemption u/s 54. T .....

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tual sale consideration is to be taken into consideration and not the stamp duty valuation u/s 50C. Thus, assessee’s claim of exemption as made in the return of income as raised is allowed. See CIT vs. Smt. Nilofer Singh (2008 (8) TMI 165 - DELHI HIGH COURT ) and Gyan Chand Batra vs. ITO [2010 (8) TMI 528 - ITAT JAIPUR] - Decided in favour of assessee.

Cost of construction of a room and boundary wall disallowed - Held that:- No infirmity in the orders of lower authorities as there is .....

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for the assessment year 2008-09 raising following grounds of appeal: 1. That the ld. CIT(A) has erred in confirming the denial of exemption of ₹ 29.10 lacs by the ld. AO u/s 54 of the I.T. Act, 1961. 2. (a) The ld. CIT(A) has erred in confirming the Long term capital gain of ₹ 45,65,220/- computed by the ld. AO on the basis of value of ₹ 49.95 lacs adopted by the stamp valuation authority, in terms of Section 50C of the I.T. Act, 1961, as against the Long term capital gain of .....

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ld. CIT(A) has erred in confirming the cost of construction of ₹ 20,000/- taken by the ld. AO as against ₹ 30,000/- taken by the assessee, resulting in a reduction of ₹ 55,100/- in the indexed cost thereof. 2.1 At the outset, the ld. Counsel for the assessee did not press Ground No. 2 (a) which is accordingly dismissed as withdrawn. 3.1 Brief facts of the case are that deceased assessee owned a house situate at Plot No. 360C, Talwandi, Kota which was purchased by him in the ye .....

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ng the queries in respect of eligibility of claim u/s 54 as the residential new house was purchased beyond the due date of return u/s 139(1) i.e. 31-07- 2008. Assessee filed its reply on 6-1-2010 making various submissions and relying on case laws in support thereof. Ld. AO however rejected the explanation and adopted the stamp value as sale value as prescribed u/s 50C and worked out taxable LTC gains at ₹ 46,13,220/-. 3.2 Aggrieved, the assessee preferred first appeal which was dismissed .....

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includes the return filed u/s 139(1) of the Act as well as a belated return u/s 139(4) of the Act. Therefore, the purchase of new house or deposit in the capital gain account scheme can be made on or before due date of Section 139(4) to be eligible for exemption u/s 54 of the Act. In assessee s case new residential house is purchased in the month of March 2009 whereas the time limit u/s 139(4) expires on 31-3-2010, thus the purchase of new eligible asset i.e. residential house is before the due .....

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ll the sub-section of 139 including 139(4). Therefore, if the sale consideration is utilized for the construction or purchase of a new residential house before due date of filing of return u/s 139(4) i.e. 31-3- 2010 in this case, the same will be eligible for exemption u/s 54. Respectfully following above judgments, the assessee s claim for exemption is eligible u/s 54 of the Act. This ground of the assessee be allowed. 3.4 Apropos Ground No. 2 (b), the ld. Counsel for the assessee contends that .....

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tion of long term capital gains, Section 48 statutorily provides that what is taxable as capital gain is full value of the consideration received. It does not refer the consideration as deemed u/s 50C or fair market value, the amount of capital gain being defined u/s 48 has to be given the literal meaning. The wording being unambiguous Section 48 referring only to the sale consideration actually received, Section 50C being deeming fiction it cannot be applied to sec. 48 in the absence of any ena .....

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ideration that is used in Section 48 of the present Act does not have any reference to the market value but only to the consideration referred to the sale deeds as the sale price of the assets which have been transferred. It is pleaded that ITAT Jaipur judgment in the case of Gyan Chand Batra vs. ITO (2010) 233 TTJ 482 adopted the similar view and held that for working out exemption u/s 54 the capital gain is to be determined by referring to sec. 48 i.e. by taking actual sales consideration and .....

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nsel for the assessee contends that towards cost of construction of a room and boundary wall, the assessee had claimed an improvement cost of ₹ 30,000/-. The AO held that there was no mention of boundary wall in sale deed and adopted the value of ₹ 20,000/- for indexation purposes. It is pleaded that the assessee was an old man and to protect the property constructed a boundary wall for the security of its house. The cost of improvement as claimed may be allowed. 3.6 The ld. DR suppo .....

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