TMI Blog2018 (2) TMI 1209X X X X Extracts X X X X X X X X Extracts X X X X ..... tial house properties . Claim of being charged to tax as long term capital gain on sale of shares of private limited company instead of it being short term capital gain as claimed in the return of income filed by the assessee with Revenue - Held that:- Since the assessee filed the claim before the AO as well before learned CIT(A) to bring to tax capital gains as long term capital gain on sale of shares of Private Limited Company instead of short term capital gain as declared in the return of income we admit the said claim filed by the assessee , however , we are remitting the matter back to the file of the A.O for considering the aforesaid additional claim raised by the assessee on merits after hearing the contention of the assessee and evaluating evidences filed/to be filed by the assessee on merits in accordance with law. A.O will consider the claim of the assessee on merits in accordance with law. The assessee is directed to appear before the A.O. and file necessary contentions, explanation and evidences before the A.O. w.r.t. aforesaid additional claim which shall be evaluated by the AO on merits in accordance with law. The AO shall provide proper and reasonable opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l mentioned above at or before the time of final hearing. 3. The Brief facts of the case are that the assessee is an individual having income from house property , capital gains and income from other sources. The controversy in this case revolves around computation of capital gains on sale of 50% share in Terrace at Arcadia Premises Co-Op Society Ltd., Nariman Point, NCPA Marg, Mumbai. It is the say of learned counsel for the assessee that if the assessee is found entitled for deduction u/s 54F on investment made by him in a residential flat in Dubai, UAE , the whole controversy will be set at rest as the capital gains as computed by the AO as per methodology used and valuations adopted by the AO will become eligible for deduction u/s 54F and consequently all other related issues will become adademic. The assessee had invested in residential property in Dubai, UAE for which the assessee claimed deduction u/s 54F from the capital gain arising from sale of 50% share in Terrace at Arcadia Premises. The claim of the assessee for deduction of u/s. 54F was denied by the AO to the assessee as said residential house bearing flat no. 1906, Laguna Towers, Dubai, UAE was situated outside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of section 54F of the Income-tax Act before its amendment was that the assessee should invest capital gain in a residential house. It is only after the amendment to section 54F of the Income-tax Act by the Finance (No. 2) Act, 2014, which came into effect with effect from 1.4.2015 that the assessee should invest the sale proceeds arising out of sale of capital asset in a residential house situated in India within the stipulated period. Thus on a plain reading of section 54F of the Income-tax Act before its amendment by the Finance (No. 2) Act leaves no room for any doubt that the assessee should restrict her investment within India or outside India. The only condition was that the assessee should invest in a residential house. The Tribunal has wrongly interpreted section 54F of the Income-tax Act by holding that the assessee should purchase the residential house situated in India. Prior to amendment to section 54F of the Act, the only condition stipulated was investment in a residential house. When the section 54F of the Income-tax Act was clear and unambiguous, there is no scope for importing into the statute the words which are not there. Such importation would be not to constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 54F 54F of the Act is pari-materia, inter- alia, requiring the assessee to make investment in a new residential house in order to avail the exemption on the capital gains earned. As per the Hon'ble High Court, prior to the amendment the only stipulation was to invest in a new residential property and that there was no scope for importing the requirement of making such investment in a residential property located in India. On similar analogy, in the present case too, we do not find any reason to uphold the stand of the Assessing' Officer that the exemption under section 54 of the Act is to be allowed only if the investment Is made in residential property in India. Considered in the aforesaid light and in the absence of any contrary decision, the parity of reasoning laid down by the Hon'ble Gujarat High Court has to prevail and we find no reason to distract from the conclusion arrived at by the CIT(A). Accordingly, the order of the CIT(A) is hereby affirmed and Revenue fails in its appeal. The Mumbai-tribunal in the above case of Mr Nishant Lalit Jadhav(supra) has followed the decision of Hon ble Gujarat High Court in the case of Smt. Leena Jugalkishore Shah(S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a residential house within the stipulated time. There was no condition in section 54F of the Income-tax Act at the relevant time that the capital gain arising out of transfer of capital asset should be invested in a residential house situated in India. The language of section 54F of the Income-tax Act before its amendment was that the assessee should invest capital gain in a residential house. It is only after the amendment to section 54F of the Income-tax Act by the Finance (No. 2) Act, 2014, which came into effect with effect from 1.4.2015 that the assessee should invest the sale proceeds arising out of sale of capital asset in a residential house situated in India within the stipulated period. Thus on a plain reading of section 54F of the Income-tax Act before its amendment by the Finance (No. 2) Act leaves no room for any doubt that the assessee should restrict her investment within India or outside India. The only condition was that the assessee should invest in a residential house. The Tribunal has wrongly interpreted section 54F of the Income-tax Act by holding that the assessee should purchase the residential house situated in India. Prior to amendment to section 54F of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... methodology adopted and valuation of the property used for computation of capital gains by the AO have become academic and did not require adjudication and hence we refrain from adjudicating the same. We order accordingly. 6. The assessee has also raised ground no. 4 in memo of appeal filed with the tribunal with respect to the claim of being charged to tax as long term capital gain on sale of shares of private limited company , instead of it being short term capital gain as claimed in the return of income filed by the assessee with Revenue . The assessee had claimed to have filed revised computation of income with respect to the chargeability of long-term capital gain on sale of shares of Private Limited company before the AO as well learned CIT(A) by filing letter instead of making the said additional claim by way of filing revised return of income . The said claim was not allowed by the lower authorities as the same was not filed by the assessee by filing revised return of income but instead the said claim was raised for the first time by the assessee before the AO by filing revised computation of income. The decision of Hon ble Supreme Court in the case Goetze (India) Ltd., ..... X X X X Extracts X X X X X X X X Extracts X X X X
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