9911796707
TMI Blog2015 (4) TMI 1255X X X X Extracts X X X X X X X X Extracts X X X X ..... an individual, had filed the return of income for the year under consideration declaring total income at The AO during the assessment proceedings noted that the assessee had sold property at South Mumbai for a consideration of Rs. 1,42,80,000/-. After deducting the indexed cost of acquisition etc., the taxable gain was arrived at Rs. 1,52,66,271/-. The assessee had claimed exemption under section 54F amounting to Rs. 66,66,491/- on account of investment of the part of the above stated capital gains. The assessment was completed under section 143(3) of the Act and the claim of the assessee under section 54F was allowed by the Assessing Officer vide order dated 12.11.2008. Subsequently, the Commissioner of Income Tax ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn of income, appellant has disclosed all the material facts with respect to the conditions of the property and these facts are not in dispute. The appellant had booked a residential flat together with covered car parking in the building Om Sadan, on 15th January 1981. The said society filed a suit in the Bombay High Court against the original builder, which it seems is still pending. The Hon. Bombay High Court appointed the committee of receiver with a direction to complete the construction. Vide agreement dated 31st October 2005, appellant sold the said 'under construction' unit resulting in taxable long term capital gains in her hands. Appellant also submitted notice dated 17th February 2011 issued by the Committee of court recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccupied for residence or being capable of put to use for residence. This test has to be applied on the date of transfer of the capital asset. If on the date of transfer of capital asset the property is fit or residence, though not actually used as such, it will be a transfer of residential house, but if on the date of transfer, asset cannot be put to use for residence, then what is transferred is the right with respect to a property, and not a residential house. Similar view has also been approved by the Hon Punjab a Haryana High Court in the case of Ms. Neena Jain while deciding Wealth Tax Appeal No 17 of 2008 decided on 19 February 2010. 3.3 In view of the facts that appellant transferred a flat under construction, I have no hesit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm Capital Asset, enumerated in the said Section, no such Income being 'Annual Value' chargeable U/s. 22 of the Act, is chargeable, since the 'Capital Asset', which is subject matter of the impugned Long Term Capital Gain, is under construction from 1981 till date and the property can not be reasonably expected to be let for determination of Annual Value U/s. 23" The Exemption U/s. 54 of the Act, be Allowed, on Merits, in the alternative." 5. We have considered the rival contentions of the Ld. Representatives of both the parties and have also gone through the records. The Ld. CIT(A) has categorically discussed the factual position of the case that the assessee had booked a residential flat on 15.01.1981. The b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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