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2019 (12) TMI 143

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..... on on the site purchased by the assessee and therefore the action of the revenue authorities in denying the benefit of exemption u/s. 54 is upheld. Long term capital gain on sale of the flat has to be computed in accordance with the provisions of section 48. The facts which we notice in this regard from the statements filed by the assessee before the CIT(Appeals) is that the flat which was sold by the assessee during the previous year was acquired by the assessee under a joint development agreement dated 7.3.2003. The assessee had 1/3rd share in 2 acres 35 guntas which was given to M/s. Gopalan Enterprises under a joint development agreement and supplementary agreement dated 7.3.2004 and 27.4.2004 respectively. The assessee got 13 flats and .....

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..... artly allowed. - ITA No.985/Bang/2019 (Assessment year : 2012-13) - Dated:- 13-11-2019 - SHRI N V VASUDEVAN, VICE PRESIDENT AND SHRI A K GARODIA, ACCOUNTANT MEMBER Appellant by: Shri V. Srinivasan, Advocate Respondent by: Shri Sunil Kumar Agarwal, Addl.CIT(DR)(ITAT), Bengaluru. ORDER Per N V Vasudevan, Vice President This appeal by the assessee is against the order dated 29.03.2019 of the CIT(Appeals), Bangalore-9, Bangalore relating to assessment year 2012-13. 2. The assessee is an individual. For the AY 2012-13, he filed a return of income declaring an income of ₹ 33,94,370 which was income from house property. The AO noticed that during the previous year, the assessee sold property being Flat B-105, Habitat Splendour, for a sale co .....

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..... . 54 of the Act. This plea was rejected by the CIT(A) for the reason that the assessee did not satisfy the condition that construction should be completed within a period of three years from the date of sale of the flat and this condition was mandatory u/s. 54 of the Act to claim exemption. 5. The next submission made by the assessee before the CIT(A) was that the AO was not justified in bringing to tax the entire sale consideration on sale of the flat and that u/s. 48 of the Act, capital gain has to be computed by reducing from the full value of construction received on transfer, cost of acquisition of the property and expenses incurred in connection with the transfer. The assessee gave the following computation of long term capital gain b .....

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..... 8377; 1200 per sft. He was of the view that ₹ 1200 per sft. was on the higher side. He directed the AO to consider the comparable sale deeds or comparable joint development agreements of the corresponding year and if that is not possible, adopted the guideline value as published by the State Govt. for arriving at the cost of construction in Bangalore for the FY 2005-06. 8. As far as revised computation of capital gain filed by the assessee before the CIT(Appeals) in which Nil capital gain was computed, the CIT(A) has not given any specific finding, but directed the AO to compute the long term capital gain after factual verification. Aggrieved by the order of CIT(A), the assessee has preferred the present appeal before the Tribunal. 9. .....

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..... l gains directed to be brought to tax ought to have taken at NIL. 5. Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG, the appellant denies himself liable to be charged to interest a/s. 234-B and 234-C of the Act, which under the facts and in the circumstances of the appellant's case and the levy deserves to be cancelled. 6. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs. 10. We have heard the rival submissions. As far as exemption claimed by the assessee .....

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..... the appellant S.No. Flat No. SBA (in Sft) UDI 1. H-302 2,020 708 2. C-208 1,840 472 3. C-M08 1,290 472 4. A-M10 1,290 472 5. H-L02 1,290 472 6. D-M07 1,290 472 7. A-M13 1,290 472 8. D-002 1,265 472 9. B-105 1,315 472 10. C-M03 1,265 472 11. D-M02 1,265 472 12. D-007 1,275 472 13. A-304 2,545 708 14. Basement 250 - Total 18,975 6,608 2. Extent of land transferred to the developer. 111,367 3. Fair Market Value (FMV) of the above @ ₹ 500 per sft. 55,683,500 4. Cost per Sft of the Super built-up area, being the exchange value 2,930 13. As far as the aforesaid computation of long term capital gain is concerned, the same is a second computation of the long term capital gain filed by the assessee before the CIT(A) and this is not supported b .....

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