TMI Blog2020 (2) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... ee is not claiming deduction u/s 54F in respect of any of these 24 flats but since even these 9 unsold flats can be considered as a part of new asset for deduction u/s 54F, the proviso (a) (i) to section 54F is not applicable because in addition to these 9 flats and one residential house purchased by the assessee for which the assessee is claiming deduction u/s 54F, the assessee is owning only one residential house being self-occupied house and hence, this proviso is not applicable. As per paper book where the Revised Computation of Income and Original Computation of Income is available, the assessee is showing Income from Let Out House Property but the objection of the AO that the assessee is owning more than one residential house as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r because remaining 15 flats were already sold and even if the assessee has not received possession of those 9 flats, the assessee is owner of the same and therefore, deduction u/s 54F is not allowable to the assessee. He pointed out that before the AO, reliance was placed by the assessee on the Judgment of Hon ble Karnataka High Court rendered in the case of CIT vs. Rukminamma, 331 ITR 211 as noted by the AO on page 7 of the assessment order but he has not properly considered this judgment and held that this judgment does not help the case of the assessee. He placed reliance on this judgment and submitted that the amendment in section 54F is by Finance (No. 2) Act, 2014 w.e.f. 01.04.2015 and hence not applicable in the present year. Learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a property in koramangla. The objection of the AO is this that the assessee owns a self-occupied house property and these nine unsold flats and therefore, as per proviso a (i) to section 54F (1), the assessee is not eligible for deduction u/s 54F. Now, we reproduce the relevant proviso below sub section (1) to section 54F for ready reference. The same reads as under:- Provided that nothing contained in this sub section shall apply where (a) The assessee, - (i) owns more than one residential house, other than the new asset on the date of transfer of the original asset; It is seen from this proviso that holding of residential house other than new asset as on the date of transfer of the original asset is relevant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the capital gain for taxation in the present year (not in A. Y. 2009 10) and the revenue has also accepted this and this issue is not open before us. But for the purpose of this proviso, date of transfer of original asset is important which is 16.09.2008 being the date of JDA. Even if we take 01.04.2011 (i.e. First Day of the Previous year relevant to present assessment year 2012 13) as the date of transfer because Capital gain is being taxed in the present year, this is not a finding of the AO that on this date, these flats were owned by the assessee because ownership of flats will be there only when the construction is completed. As per letter dated 04.03.2015 submitted by the Developer to the AO, copy on page 44 of the paper book, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee and the remaining 52 per cent representing another four flats is the share of the builder. So, the consideration for selling 52 per cent of the site is four flats representing 48 per cent. All the four flats are situate in a residential building. These four residential flats constitute a residential house'' for the purpose of s. 54. Profit on sale of property is used for residence. The four residential flats cannot be construed as four residential houses for the purpose of s. 54. It has to be construed only as a residential house and the assessee is entitled to the benefit accordingly. 6. Out of these 24 flats, 15 flats are already sold in the present year and remaining 9 flats are likely to be sold within the peri ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
