TaxTMI 
TaxTMI 
2016 (2) TMI 507
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....t the appellant has transferred all the rights in 1/4th share of the property to Mr. Ramesh Chand Kalra and the possession was handed over on 16.04.2006 vide agreement to sell dated 16.4.2006. (c) The LD CIT(A) has wrongly concluded that the Agreement to sell dated 16.4.2006 is not a genuine document ignoring the fact that even the buyers i.e Ashok Seth and Poonam Seth in sale deed executed on 05.09.2006 has acknowledged that sum of Rs. 20 lacs was paid by Sh. Ramesh Chand Kalra to the applicant Smt. Shashi Gupta who were nominees of Sh. Ramesh Chand Kalra pursuant to agreement dt.16.4.2006. 3 (a) The Ld CIT(A) has erred in concluding that the exemption u/s 54 in respect of amount of Rs. 933950/- representing cost of construction of the new house in finishing the house cannot be allowed as the house was purchased beyond the period of one year before the sale of the old house." 3. Ground No.1 is not pressed so dismissed. 4. Ground No.2 relates to disallowance of Rs. 20,40,600/- representing claim of exemption under section 54 of the Income-tax Act, 1961 (hereinafter 'the Act'). 5. The facts are that the assessee sold her 1/4th share in the residential house at B-30, Geeta....
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.... Shri Mahendra Prakash Gupta, Shri Narendra Prakash Gupta, Shri Shiv Prakash Gupta and Shri Ram Prakash Gupta the other legal heirs on 05.02.1990. There after the said property mutated, transferred and substituted in join name of Shri Om Prash Gupta, Shri Mahendra Prakash Gupta, Shri Narendra Prakash Gupta, Shri Shiv Prakash Gupta and Shri Ram Prakash Gupta on 09.04.1990 and each member has 1I5th undivided share in the said property. (d) On 27.06.1998 Shri Narendra Prakash Gupta died leaving behind Smt. Shashi Gupta (Wife), Mr. Shailendra Gupta, Mr. Nitin Gupta (Sons) and Ms. Seema Gupta (Daughter) the legal heirs. Also on 15.04.1999 Shri Om Prakash Gupta died intestate leaving behind Shri Mahendra Prakash Gupta, Shri Shiv Prakash Gupta, Shri Ram Prakash Gupta (Sons) and Smt Pushpa Aggarwal, Smt Phool Gupta, Smt Veena Gupta, Smt Suman Gupta (Daughters) and Smt. Shashi Gupta (Daughter-in law [wife of predeceased son Shri Narendra Prakash Gupta)], Mr. Shailendra Gupta, Mr. Nitin Gupta (Grand-Sons) and Ms. Seema Gupta (Grand-Daughter) the legal heirs. (e) Mr. Shailendra Gupta, Mr. Nitin Gupta, and Ms. Seema Gupta relinquished/released all their rights, titles, interests, claims an....
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....y / on this date. Now this agreement witness as under: 1. That the second party shall pay the balance sale consideration of Rs. 1 crore 67 lacs 50 thousands to the first party as follows: 1. Shri Mahendra Gupta Rs.46 lacs 2. Shri Shiv Prakash Gupta Rs.46 lacs 3. Shri Ram Prakash Gupta Rs.46 lacs 4. Smt. Shashi Gupta Rs.29.5 lacs 2. That the sale transaction shall be concluded on/or before 01.10.06 by that time, second party shall pay the remaining consideration amount of Rs. 1 Crores 67 Lacs 50 thousands to the first party and the first party shall simultaneously execute the sale deed with respect to the said property in favour of the second party or his nominee(s) and shall also handover the vacant and peaceful % balance possession of the said property to the second party or their nominee(s)." (i) The assessee had ¼ share in the property B-30, Geetanjali Enclave, New Delhi-30 which was sold to Sh. Ramesh Chander Kalra vide agreement dated 16.04.2006. She has already received an advance of Rs. 20,00,000/- vide cheque number 759207 on 16.01.2005 drawn on ICICI Bank, Saket, New Delhi as part consideration for her ¼ share in the property. (j....
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....stered sale deed was signed on 05.09.2006 and the assessee has received the balance sale consideration amount of Rs. 29,50,000/-. Therefore, the sale transaction was within assessment year 2007-08 and hence the assessee had declared it in her return of income and shown Long Term Capital Gain of Rs. 1,53,065/- after taking the benefits as provided in section(s) 54 and 54EC of the Income Tax Act, 1961." 7. On the other hand, the ld. DR supported the order of the ld. CIT (A). 8. We have heard both the parties and perused the record. The facts as emerging and undisputed are that assessee purchased a residential house property B-195, Ramprastha Surya Nagar, Ghazibad for Rs. 20,40,600/- vide registered deed dated 04.08.2005. However, the above purchase of residential house is held to be not entitled to exemption under section 54 of the Act, on the ground that such purchase of property at Ghaziabad happened one year prior to the sale of her share in the residential property at B-30, Geetanjali Enclave, New Delhi - 110 030. The assessee, however, supported the claim on the basis of an agreement for sale dated 16.04.2006, which has not been accepted by the authorities below on the groun....
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.... fact whether the possession regarding 1/4th share of the assessee has been taken possession or not, thus the factum that such an arrangement has any meaning or not is irrelevant. It was for the purchaser to satisfy and having so accepted by the vendee, it cannot be suggested validly that the possession has not been handed over, more particularly when in an affidavit the Vendee has specifically affirmed as under :- "I. R.C. Kalra S/o K.L. Kalra R/o B-49, Shivalik Colony, Malviya Nagar, New Delhi do hereby confirm as under :- 1. That vide agreement to sale dated 16.4.2006 between me and Smt. Shashi Gupta and others for purchase of ¼ share of her portion in the house located at B-30, Geetanjali Enclave, New Delhi. 2. I have taken possession of ¼ share of the house as on 16.4.2006 against consideration as agreed upon detailed in the sale agreement dt.16.4.2006. 3. That I have option to get the sale deed executed in my name or in the name of my nominee as per cl.2 of the referred agreement." The observation of CIT (A) that in the sale deed, the possession of the property was taken on 05.09.2006 cannot be seen in isolation because in the agreement to sale on 16.04....
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....eds to be appreciated here that a hyper technical approach cannot be adopted to an incentive granting provision. Here is a case, where the assessee is a widow who has received advance in June 2005 against sale of her share and thereafter, purchased a residential property in August 2005, but yet exemption is not held eligible on the ground that the sale is in September 2006. According to the Revenue, had the sale deed be executed in August 2006, everything will be in order. We do not subscribe to such a pedantic application of the incentive provision. It was on account of such an approach, the Hon'ble Apex Court in Sanjeev lal & Anr. Vs. CIT & Anr. (supra) has held as above. Thus, in view of the aforesaid, we allow the ground raised by the assessee. 9. Ground No.3 relates to exemption claimed by the assessee u/s 54 of the Act in respect of an amount of Rs. 933950/- representing cost of construction of the new house in finishing the house which was not allowed by the AO on the reason that the said house was purchased beyond the period of one year before the sale of the old house. 10. The ld. CIT (A) had held in respect of the above claim as under :- "The assessee further claimed ....