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TMI Blog2013 (11) TMI 1714X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Ld.CIT(A) regarding the taxability of the capital gains and allowing the exemption claimed by the assessee u/s 54 of the Income Tax Act. 3. Briefly stated, the assessee, an individual came to be the owner of the property situated at Chembur through a process involving inheritance by succession and gift. The assessee desired to demolish the then dilapidated structure in the said property and reconstruct a multi storied building consisting of basement, grounds floor and upper floors by utilising the permissible FSI. The assessee entered into a development agreement dated 16.07.2004 with the developer namely M/s. Bhawanji S. Bhadra. As per the term of the agreement, the developer agreed to construct a building 'Jai Sai' and hand over th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e action of the Ld.CIT(A) in allowing the exemption claimed by the assessee u/s 54 of the Act. 4. Firstly, as regards the claim of the assessee raised in his appeal that the gains arising from the transfer vide agreement dated 16.07.2007 in respect of the property is not taxable under the Act, it is the contention of the assessee that the possession of the property has never been parted by him and therefore there is no transfer as envisaged in the provisions of capital gains and the Transfer of Property Act. However, we are inclined to concur with the findings of the Ld.CIT(A) that the contentions of the assessee lack merit in view of the fact that as regards the construction relevant to the additional FSI of 11,658 sq.ft, being the flats ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been held that residential flats constitute 'a residential house' for the purpose of section 54, where profit on sale of property is used for residence and further held that four residential flats cannot be construed as four residential houses for the purpose of section 54, when all are situated in the same building. It has to be construed only as 'a residential house' and the assessee is entitled to the benefit accordingly. As regards the contention of the Revenue placing the reliance on the decision of the Punjab & Haryana High Court in the case of Pawan Arya v. CIT reported in 2011-TIOL-01-HC- P&H-IT, it is pertinent to mention that the assessee, in the said case, has claimed exemption in respect of two independent residential house ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchased under separate sale deeds. The High Court of Andra Pradesh in the said case has agreed with the findings of the decision of the High Court of Karnataka in the case of CIT v. D. Anand Basappa (Supra). Therefore, considering the totality of the facts and circumstances in the light of consistent view of different High Courts, we are of the view that the Ld.CIT(A) has correctly decided that the assessee is entitled for exemption under section 54 of the Act as regards the investments/cost of construction claimed by the assessee in respect of all the flats. In view of that matter, we do not find any justifiable reason to interfere with the decision of the Ld.CIT(A) on this count and the same is upheld. 6. In the result, the appeals filed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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