9911796707
TMI Blog2018 (12) TMI 1584X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the circumstances of the case and in law, the Ld. AO and Ld. CIT(A) erred in disallowing the deduction under section 54F of the Act amounting to INR 11,33,45,140 by treating the purchase of new residential flat as a case of " construction" and not "purchase" on the ground that the payment was made by the Appellant in instalments to the builder for the flat. 3.Without prejudice to the above, even if the said property purchased by the Appellant is treated as a construction for the purpose of granting exemption under section 54F of the Act, relief under Section 54F should be available as the construction completed within the stipulated time period as provided under the provisions of sections 54F of the Act. 4.Without prejudice to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf Course Road Gurgaon; rest of the amount was offered for taxation. The case of the assessee was selected for scrutiny. The A.O. completed the assessment wherein out of the total claim for exemption u/s 54F amounting to Rs. 14,67,21,892/-, he allowed a deduction of only Rs. 3,33,76,752/- and disallowed Rs. 11,33,45,140/- and assessed the income of the assessee at Rs. 26,56,56,260/-. Against the assessment order, assessee appealed before the Ld. CIT(A), who vide his impugned order dated 13.1.2016 has dismissed the appeal of the assessee. 3. Ld. counsel for the assessee lead us through the facts of the case. He stated that it is a matter of record that the assessee entered into Apartments Buyers Agreement on 19.01.2010 with DLF Universal Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available to the assessee. As per him in the present case the appellant initially went for booking of raw apartment and made payment for the same in the impugned property, which was before the arising of the capital gain and therefore all payments made wihin a period of one year prior to the capital gain would be applicable in his case. And that subsequently the appellant has made payment in installments for construction of the said residential property to the builder and therefore all payment made for such construction , either to the builder or to other parties directly by the appellant would also qualify to be payments for the construction of residential house and for which the period of 3 years from the date of arising of capital gain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to an agreement with DLF only for construction of a Flat. Since as per the AO Section 54F delineates the issues of construction of new assets and purchase of new assets and provides separate time limits for the two, it is important to identify the actual course of action taken. Since he held the agreement to be " Construction " in nature, consequently as per law, he held that the assesee gets three after the sale of the original assets and no time before the sale. He further curtailed the time available to the assessee by holding that as per Section 54 F (4), in case the new assets has not been purchased by the due date of filling of the return and money had not been deposited in the SBI Capital Gain Scheme, the assesee forfeits his claim f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e act of purchasing semi-finished apartment. So it is difficult to say that what he purchased initially was not a residential house. In fact the subsequent act of construction merges into the act of purchase. As held by on Hon'bleCalcullta High Court B.B. Sarkar vs. CIT (Supra) "Section 54 does not contemplate two kinds of relief; it only contemplates fulfilment of two alternative conditions. If both the conditions are satisfied within the time stipulated, the assessee does not become disentitled to the relief if the other conditions are fulfilled. If a floor is constructed to the new house or if it is renovated it remains as one house only, especially when there is no evidence that two different houses bearing two different municipal numbe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of A.O not allowing the claim of Investment/Expenditure incurred in" constructing" of residential house as a new asset, for the period beyond 01/08/2010 on the ground that such Investment / expenditure would have qualified for it, only if the capital gains on shares had been deposited in Capital Gain Scheme.The CIT(A) has upheld the A.O's view.He rejected the assesse's stand that due date referred to in the concerned section included the due date for filing of the return u/s 139 (4 ) as well. 4.5 Before us, the learned AR drew our attention to a number of case laws to argue that the due date of filing of return u/s 139, referred to in section 54F(4) is available for the entire extended period, when such a return can be filed i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
