TMI Blog2019 (11) TMI 1137X X X X Extracts X X X X X X X X Extracts X X X X ..... Kaur carried on any business as a builder as claimed by the assessee. The statement of the assessee is not supported by her conduct.In this set of facts and circumstances, we are not inclined to believe the genuineness of the agreement to sell dated 30.3.2012. If this agreement is taken out of consideration, there is nothing on record to suggest that at any time prior to 9.7.2015, the assessee invested the amount for purchase of the residential house or that she had taken possession thereof within the time stipulated for the purpose of investment under law. It is unsafe to place reliance on the agreement of sale dated 30.3.2012 to hold that as on such date there was a transaction of purchase of the entire ground floor of the property or that any amount was paid under such an instrument on that day, but only because the basic structure of the building was not complete as on the date, possession was taken subsequent to the expiry of the period of 3 years when the sale deed dated 9.7.2015 was executed. With this view of the matter, we do not find anything illegal in the conclusions reached by the authorities below. - Decided against assessee. - ITA.No 5364/Del/2016 - - - Dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the completion of the finishing work; that a formal agreement of sale to this effect was executed on 30/3/2012; and that the sale deed was executed on 9/7/2015 in favour of the assessee by Smt. Jaspreet Kaur. Based on this, the assessee contended before the ld. Assessing Officer that the conditions required under section 54F of the Act are complied with and the capital gains are exempt. It was further contended that since the whole amount of sale consideration was invested in purchase of the property, it is immaterial whether the possession of the property was received or not, and completion of construction of property has nothing to do with the claim of exemption. 5. Learned Assessing Officer, however, on a consideration of the entire material before him, observed that at no point of time the assessee declared the long term capital gains, so also Smt. Jaspreet Kaur did not declare any short term capital gains. He further observed that Smt. Jaspreet Kaur was not carrying on the business as builder under the head income from business profession and had not shown any income under such a head. Learned Assessing Officer, therefore, while not believing the plea take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin stipulated period, it would meet the requirement of section 54F of the Act and the assessee would be entitled to get benefit of section 54F of the Act. 8. Per contra, it is the submission on behalf of the Revenue that in this case the plea of assessee to have purchased the residential house from Smt. Jaspreet Kaur is only an afterthought because if it were true, both the assessee and Smt. Jaspreet Kaur would have declared the transactions at least the materialisation of the sale of residential house in favour of the assessee. Further,except the self-serving unregistered sale deed dated 30.3.2012, there is no material whatsoever to support the claim of the assessee. Further, when the sale consideration was received by the assessee in respect of the original asset by way of cheque, there is no reason as to why the payment for purchase of the new asset was received by way of a cheque. She further submitted that nothing prevented the assessee from getting the sale deed registered at the earliest point of time in view of the fact that the entire sale consideration in respect of the original asset stood invested in the purchase of the new asset. She submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn of income. 13. When a sum of ₹ 1.23 crores was paid by way of agreement of purchase, nothing prevented the parties from getting such an instrument registered so as to establish that, as a matter of fact, on a particular date there took place some investment which entitles the assessee to claim exemption under section 54F of the Act. 14. It is only when the case was selected for scrutiny and the Assessing Officer had confronted the assessee regarding the sale of plot, the assessee came forward with the explanation that she had purchased the upper ground floor from Mrs Jaspreet Kaur to whom she had sold the plot for the very same price. 15. It could also be seen that when the Assessing Officer verified the income tax return of Mrs. Jaspreet Kaur, who has been assessed to tax vide PAN AANPM9447K, he found that she filed return of income declaring income of ₹ 6,85,570/-in Form ITR 2 and the examination of the schedule of capital gains revealed that she has not declared income under the head capital gains either long-term or short-term. It is the observation of the learned Assessing Officer that since Mrs. Jaspreet Kau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the vendors to purchase back any portion of the building that is to be constructed on such plot. 19. The sale deed dated 9.7.2015 is clearly beyond the period of 3 years from the date of sale of property since the period of 3 years expires by 29.4.2014. Except the self-serving statement of the assessee that there was an intervening agreement of sale dated 30.3.2012, absolutely there is no evidence to establish such a transaction. It is stated in the sale deed dated 9.7.2015 that the entire consideration amount of ₹ 1.23crores was received by the vendors thereunder on 30.3.2012 itself. However by way of an insertion, by hand, it is stated that by transfer of book entry. We do not know what sort of book entry the parties had made and what is the occasion there for. Further, the sale deed dated 9.7.2015, the consideration was received on 30.3.2012 whereas the agreement dated 30.3.2012 does not read that the amount was received under such an instrument but it was already received. Recital regarding the book entries is conspicuously absent in this agreement to sell or in the sale deed executed in favour of Smt. Jaspreet Kaur. When the sale deed dated 29.4.2011 is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
