TMI Blog2012 (7) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... /2007. The assessee was issued notice u/s. 153A of the Act. In response to the notice u/s. 153A, the assessee furnished the return of income for the A.Y. 2003-04, declaring Long Term Capital Gain on the sale of the land at Survey No 895/2 (Nasik Shieer) for ₹ 8,70,017/- and also claiming exemption u/s. 54F of the entire capital gain i.e. ₹ 8,70,017/-. The assessee had 1/5th share in the said property. The A.O has reservation in accepting the claim of assessee in respect of the exemption u/s. 54F. He sought the explanation of the assessee. The assessee stated that he lives in a joint Hindu Family. The plot on which the bungalow is constructed is in the name of the younger generation member of the family and the assessee has contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 54F, however, such no objection which are not based on correct appreciation of the position of law on the subject do not hold good in the appellate proceedings and the appellant has a right to disagree with such no objection expressed by his A.R. before the AO. From the facts on record it is apparent that the plot of land on which the appellant constructed the residential house (bungalow) was in the name of the appellant s son Shri Piyush Kankariya. The AO has accepted the proposition that the appellant has contributed money for the construction of the residential house. Para 17 of the impugned assessment order is as under:- After verification of earlier submission given by the assessee detail discussion with the assessee it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is entitled for exemption u/s. 54F, therefore the impugned addition of ₹ 19,04,530/- is directed to be deleted. This Ground of appeal is allowed. Now the revenue is in appeal before us. 3. We have heard the rival submissions of the parties and perused the record. The assessee has filed a written submission on 5.7.2012 which is more particularly in the context of the decision of the Hon ble High Court of Bombay in the case of Prakash Vs. ITO, 312 ITR 40 which has also been considered. We have also perused all the documents placed in the paper book. The Ld Counsel argues that though the plot is on the name of the son of the assessee, but assessee has made the contribution in the construction of the residential house. The Ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding the son on whose name the residential house stands on. He pleaded for reversing the order of Ld CIT(A). 5. We have also anxiously considered the written submission filed by the assessee on 5.7.2012. In the written submission, the assessee tried to distinguish the facts in the case of the Prakash v/s. ITO (Supra). The first distinction made by the assessee is that in the case of Prakash v/s ITO (Supra), the entire investment was made on the name of the adopted son but in the present case, it is the joint investment. It is further stated that the assessee has never relinquished his right in the said residential house and all the documents and records show that it is the joint property. It is further stated that all the payments towar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aborated in the section. No such benefit is available to a person other than the assessee. It also means the assessee must comply with the conditions strictly as per this provision in all respects. As noted, this exemption will not be available in case where the assessee owns, on the date of transfer of the original asset, any residential house or purchased within the period of one year, after such date or constructs within a period of three years after such date any other residential house. Where an assessee purchases or constructs any other residential house within the period of the aforesaid exemption under the proposed provision, if allowed, shall stand forfeited. The amount of capital gain arising from the transfer of the original asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e undisputed position on the record that the deceased assessee, admittedly, though sold the property owned by him yet purchased the new property in the name of adopted son and paid consideration out of the sale proceeds in question, with clear intention to transfer the property to the adopted son. He, therefore, utilized the sale proceeds to construct a house by transferring the property and submitting plan in the name of the son only. The intention was very clear from the day one to transfer the property even before the construction of residential house to the adopted son. He transferred the property before the prescribed period, as per the scheme of section, and the son becomes the owner of the property for all the purposes. The deceased/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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