TMI Blog2015 (11) TMI 1443X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Member For the Appellants : Shri B.Kurmi Naidu For the Respondent : Shri K. A. Saiprasad ORDER Per Bench These seven appeals are by the Revenue against the separate orders of the Commissioner of Income-tax(Appeals) 6, Hyderabad dated 29.7.2015 in this group of seven assessees being co-sharers. The issue involved in these appeals is with reference to the claim of deduction under S.54F on the units allotted to the respective assessees, consequent to the development agreement. Common issues are involved and common grounds raised. Hence, we have heard these appeals together and decide them by this common order. For the sake of discussion, the facts in the case of Shri K.Venu (ITA No.1193/Hyd/2015) are discussed hereinafter. 2. The Assessing Officer initiated proceedings under S.147 of the Income Tax Act,1961 on the assessee alongwith co-owners, as they have transferred a plot of land admeasuring 7,750 sq. yards open land situated at Begumpet, Hyderabad in favour of the developer, M/s. Shreemukh Creators. In the course of assessment proceedings, the following facts were admitted by the assessee- 1. The assessee and his 7 brothers had together acquire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utation of exemption u/s. 54F. The Assessing Officer is directed to recompute the Long Term Capital Gains accordingly. 5. The Learned Departmental Representative reiterated the arguments of the Assessing Officer to submit that the assessee would be entitled for exemption only in respect of one apartment out of the five received by him and submitted that the assessee has restricted the claim made under S.54F to one flat only in the submissions made before the Assessing Officer. He also relied on the judgment of the Hon'ble Punjab and Haryana High Court in the case of Pavan Arya V/s. CIT (ITA No. 613 of 2010 dated 13-12-2010, reported in 2011-TIOL-01-HC). He also relied on the decisions of the coordinate benches in the case of ACIT V/s. Shri D.Sudhakar Ram (2012) 49- SOT 90(Mum) and Bertha T. Almeida V/s. ITO (2012) Tax Pub. (DT) 831 (Mum-Trib). 6. The learned counsel for the assessee in reply, however, placed before us a paper book, bringing on record before us the letters and the declarations filed before the Assessing Officer to submit that the assessee has not restricted the claim to one flat as contended by the Revenue. Further, it was submitted that that the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of sub-section (4), where, in the case of an assessee being an individual or a Hindu undivided family, the capital gain arises from the transfer of any long-term capital asset, not being a residential house (hereafter in this section referred to as the original asset), and the assessee has, within a period of one year before two years after the date on which the transfer took place purchased, or has within a period of three years after that date constructed, a residential house (hereafter in this section referred to as the new asset), the capital gain shall be dealt with in accordance with the following provisions of this section, that is to say,-- (a) if the cost of the new asset is not less than the net consideration in respect of the original asset, the whole of such capital gain shall not be charged under section 45: (b) if the cost of the new asset is less than the net consideration in respect of the original asset, so much of the capital gain as bears to the whole of the capital gain the same proportion as the cost of the new asset bears to the net consideration, shall not be charged under section 45: Provided that nothing contained in this sub-section sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the percentage of the built up area, vis-a-vis, the Undivided Share of Land. 11. In similar circumstances, this Court, by order dated 04.01.2012 in T.C.(A)No.656 of 2005 held as follows: The above provision refers to a residential house meaning thereby that even if there are four different flats and if it is considered for the property assessed as one unit and one door number is given, it should be construed as a residential unit, namely, one unit. In that sense, the said provision is available to the assessee. 12. In the decision reported in (2012) 75 DTR 56 (Dr.(Smt.) P.K.Vasanthi Rangarajan, this Court, while dealing with the benefit of exemption under Section 54F, followed the above-said decision of this Court in T.C.(A)No.656 of 2005 and granted the benefit to the assessee under Section 54F of the Income Tax Act on the investment made in the four flats. 13. Hence, the above-said decisions of this Court make it clear that the property should be assessed as one unit, even though different flats are available 8. The jurisdictional High Court in the case of CIT V/s. Vittal Krishna Conjeevaram (supra), following the decision in the case of CIT V/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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