TMI Blog2011 (4) TMI 1376X X X X Extracts X X X X X X X X Extracts X X X X ..... t the restricted allowable deduction as allowed by AO of ₹ 15,31,060/- 2. On the facts and circumstances of the case, the ld. CIT(A) had erred in allowing transfer fees of ₹ 1,35,000/- while arriving at the cost of original asset 3. The grounds of appeal no.1 is regarding exemption u/s 54 against capital gain of ₹ 45,85,860 from sale of the property. 3.1 The assessee computed its long term capital gain on ₹ 45,85,860/- from sale of the property. The assessee claimed deduction at ₹ 45,92,480 u/s 54 of the Act as the assessee purchased the new residential unit at Neperol tower. The AO allowed the deduction of ₹ 15,31,060/- u/s 54 of the Act because the assessee purchased the new resid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d son of the assessee has been included in the purchase agreement only for conveyance. Therefore, when the investment by the assessee is not in dispute in purchase of the new house then the assessee is entitled for deduction u/s 54 at least to the extent of the investment made. He has referred the provisions of section 45 of Transfer of Property Act and submitted that the share of the assessee in the property will depend on the amount contributed by the assessee in the purchase consideration. He has further contended that since the wife of the assessee has not contributed anything in the purchase consideration she cannot have interest in the property and the share of the son will be to the extent of payment made by him. He has relied upon a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her will have no right, title or interest therein and the purchase consideration with expenses will be borne by the assessee. Under these circumstances, we are of the view that the assessee can be treated as purchaser of the property in terms of Section 54. Our view is further fortified by the Hon'ble Supreme Court judgment in the case of Podar Cement Pvt. Ltd. cited supra for the proposition that the concept of constructive ownership has to be applied to income-tax proceedings. The issue before Hon'ble Supreme Court was of depreciation. Nevertheless, it lays down a general proposition of law that in income-tax proceedings the concept of constructive ownership can be applied considering the facts of the case. We are of the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein and the purchase consideration with expenses will be borne by the assessee. Under these circumstances, we are of the view that the assessee can be treated as purchaser of the property in terms of Section 54. Our view is further fortified by the Hon'ble Supreme Court judgment in the case of Podar Cement Pvt. Ltd. cited supra for the proposition that the concept of constructive ownership has to be applied to income-tax proceedings. The issue before Hon'ble Supreme Court was of depreciation. Nevertheless, it lays down a general proposition of law that in income-tax proceedings the concept of constructive ownership can be applied considering the facts of the case. We are of the view that the facts of the present case con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e note that the CIT(A) has decided the issue after considering the details in paragraphs 14 of his order which reads as under : 14. The last ground is that the AO has erred in disallowing transfer fees of ₹ 1,35,000/- while arriving at the cost of original asset. It further pleads that all the details were filed before the AO and files a copy of the letter to the AO which was filed during the assessment proceedings. The appellant also produced copies of payment to cooperative housing society. The copies of the receipt shows that two payments were made on 29.05.2001. There as payment of ₹ 25,000/- towards transfer fee of flat No.83. The other amount of ₹ 2,60,000/- was towards society s structural repairs and amenit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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