TMI Blog2019 (12) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... age 21-31 of the Paper Book and change of developer as Silverglades Pvt. Ltd. sold the project to other developer Orris Infrastructure. In such circumstances, we are of the view that benefit of deduction cannot be denied to the assessee. We hold that assessee is entitled to the exemption claimed by her and, therefore, delete the disallowance in dispute by allowing the appeal of the assessee. - ITA No. 1402/Del/2016 - - - Dated:- 13-12-2019 - Shri H.S. Sidhu, Judicial Member And Dr. B.R.R. Kumar, Accountant Member For the Assessee : Sh. Ridhi Karan Aggarwal, CA For the Department : Ms. Ashima Neb, Sr. DR. ORDER PER H.S. SIDHU, JM This appeal by the Assessee is directed against the Order dated 04.1.2016 of the Ld. Commissioner of Income Tax (Appeals)-18, New Delhi pertaining to assessment year 2012-13. 2. The grounds of appeal raised in the assessee s appeal read as under:- 1. That the Commissioner of Income-tax (Appeals) [in short CIT(A) ] on the facts and in law in confirming the addition made by the assessing officer aggregating ₹ 81,66,515/- i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts of the case are that the assessee is an individual having income from business or profession, house property, capital gain and other sources during the assessment year 2012-13. The assessee filed her return of income on 24.09.2012 declaring an income of ₹ 73,32,060/-. The case of the assessee was selected for scrutiny through CASS. Accordingly, notice u/s. 143(2) of the Income Tax Act, 1961 (in short Act ) was issued on 06.8.2013 and served upon the assessee. Subsequently, notice u/s. 142(1) of the Act alongwith questionnaire was issued and served upon the assessee. In response to the same, the AR of the assesee attended the proceedings from time to time. During the under consideration, assessee sold residential property situated at 28/28, East Patel Nagar, New Delhi for a total consideration of ₹ 300 lacs, however, assessee s share was 1/3rd in the said residential property which comes to ₹ 100 lacs and accordingly claimed the deduction of entire capital gain under section 54 of the Act for ₹ 81,66,515/- by investing ₹ 1,14,51,375/- in residential plot of Greenbay Gold Village GB Nagar UP for the purpose of construction of residential house. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have erred in in understanding the provisions of section 54 of the Act where in case of any failure to fulfill the conditions for investment in construction of house property within stipulated time the utilized amount shall be taxable in the previous year in which period of three years expire and therefore not in the year of capital gain. In support of his contention, he filed the copy of the ITAT, A Bench decision dated 18.11.2019 passed in the case of Abodh Borar vs. ITO in ITA No. 5114/Del/2016 (AY 2013-14) and stated that the issue in dispute in hand is squarely covered by the aforesaid decision wherein exactly similar issue has been adjudicated by the Tribunal in favour of the assessee and against the revenue by following the ITAT, Delhi Bench decision in the case of Varun Seth vs. ACIT 47(1) (2019) 107 taxmann.com 133 (Delhi Trib.). In view of above, he requested that the disallowance made and confirmed by the lower authorities may kindly be deleted and appeal of the assessee may be allowed. 5. On the contrary, Ld. DR relied upon the order of the authorities below and stated that the Ld. CIT(A) has passed a well reasoned order which does not need any interf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt within the prescribed period. This payment was made to the developer Omaxe Chandigarh Extension Developers Pvt. Ltd. Consequent to that, the developer issued allotment letter and also entered into an agreement dated 05.07.2011. As per the agreement the developer was supposed to hand over the possession of plot within 18 months from the date of allotment letter. However, the developer did not deliver the possession. Hence, the assessee could not complete the construction within the prescribed period of 3 years. This delay in construction was not attributable to the assessee. Thus, the AO and the CIT (A) have denied the exemption in view of the provision of section 54 and 54F of the Act. Further, the AO and the CIT (A) both have ignored the fact that the assessee has made a full payment to the developer and such payment was more than the amount of the deduction claimed by the assessee. Since, the delay was not on the part of the assessee but on the part of the developer and thus it was beyond the control of the assessee. In such circumstances, we are of the view that benefit of deduction cannot be denied to the assessee. Our view is supported by the judgment of coordinate bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he intention of the Legislature to give relief in the matter of payment of tax on the long-term capital gain, relevant observation of their Lordships reads as under: - 22. In addition to the fact that the term transfer has been defined under section 2(47) of the Act, even if looked at the provisions of section 54 of the Act which gives relief to a person who has transferred his one residential house and is purchasing another residential house either before one year of the transfer or even two years after the transfer, the intention of the Legislature is to give him relief in the matter of payment of tax on the long term capital gain. If a person, who gets some excess amount upon transfer of his old residential premises and thereafter purchases or constructs a new premises within the time stipulated under section 54 of the Act, the Legislature does not want him to be burdened with tax on the long-term capital gain and, therefore, relief has been given to him in respect of paying income-tax on the long-term capital gain. The intention of the Legislature or the purpose with which the said provision has been incorporated in the Act, is also very clear that the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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