9911796707
TMI Blog2020 (8) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... e pointed out that the original asset being shares were transferred by the assessee on 03.03.2012 as noted by CIT (A) in Para 2.3 of his order. He also pointed out that in para 5.2 of his order, this is also noted by the CIT (A) that the assessee has claimed deduction u/s 54F in respect of residential property purchased by him at 183, Binanmangala, 2nd Stage, Bangalore. He submitted that entire sale proceeds of shares held in joint names of the assessee and his wife was deposited in joint account held by the assessee along with his wife but the payment for purchase of this residential property was made by the assessee on or before 29.03.2011 being the date of purchase of this property which is before the date of sale of the original asset on 03.04.2012 and although, in the purchase deed, name of the wife of the assessee is also there along with the name of the assessee but this is the claim of the assessee that he is the sole owner of this property and for entire investment in this property, deduction u/s 54F should be allowed to the assessee. He submitted a synopsis of income declared in the return of income by the assessee and his wife Smt. Alka Dev and pointed out that the sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in joint name with her husband Shree Anil Dev and (ii) Plot No. 350, Door No. 1, 17th Street, Miligaipoo Nagar, Ashok Nagar, Chennai - 78 and these two properties are in addition to the new asset for which deduction u/s 54F is claimed by her i.e. the residential property at 180, NGEF Quarters, Binnamangala I Stage, Bangalore purchased on 11.06.2012 in joint name with her husband Shree Anil Dev. He submitted a copy of the order of CIT (A) in her case and pointed out that as per this order, learned CIT (A) has allowed deduction u/s 54F to her by holding that the Chennai Property is a commercial property and not a residential property and the residential property at 183, Binanmangala, 2nd Stage, Bangalore in joint name with her husband Shree Anil Dev is fully owned by her husband and the second residential property being the property at 180, NGEF Quarters, Binnamangala I Stage, Bangalore purchased on 11.06.2012 in joint name with her husband Shree Anil Dev is fully owned by her and therefore, deduction u/s 54F is to be allowed to her in respect of this property at 180, NGEF Quarters, Binnamangala I Stage, Bangalore purchased on 11.06.2012 in joint name with her husband Shree Anil De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (4), where in the case of an assessee being an individual or a Hindu undivided family], the capital gain arises from the transfer of any long-term capital asset, not being a residential house (hereinafter in this section referred to as the original asset), and the assessee has, within a period of one year before or [2000][two years] after the date on which the transfer took place purchased, or has within a period of three years after that date [2001]constructed, one residential house in India] (hereinafter in this section referred to as the new asset), the capital gain shall be dealt with in accordance with the following provisions of this section, that is to say, - (a) if the cost of the new asset is not less than the net consideration in respect of the original asset, the whole of such capital gain shall not be charged under section 45; (b) if the cost of the new asset is less than the net consideration in respect of the original asset, so much of the capital gain as bears to the whole of the capital gain the same proportion as the cost of the new asset bears to the net consideration, shall not be charged under section 45 : [Provided that nothing contained In this su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of three residential properties because these are in joint names of the assessee and his wife. These three properties in joint names are (1) 183, Binanmangala, 2nd Stage, Bangalore, (2) 180, NGEF Quarters, Binnamangala I Stage, Bangalore and (3) Plot No. 350, Door No. 1, 17th Street, Miligaipoo Nagar, Ashok Nagar, Chennai - 78. Now, at this juncture, we reproduce relevant paras from pages 2 to 4 of the order dated 28.09.2018 passed by CIT (A) u/s 154 in the case of Smt. Alka Dev, wife of the assessee and joint owner of these three properties. The same read as under:- "4.3 Deduction u/s 54F 'Having Considered the submissions and the record, I observe the following pertinent facts in the matter: "The appellant and her husband Mr. Anil Dev were shareholders of the company (VTS i Air systems Pvt. Ltd) in which 40,97,023 shares were sold jointly by them during the AY 2013-14. As per the provisions of the company law requirements, minimum two shareholders are required for Incorporation of a Company. Therefore, both Appellant and her husband had invested 50% of their shares each in the* company and acquired the shares in the aforesaid Company. Thus, when these shares were sold, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r factual reason should not stand in the way of the deduction legitimately accruing to the assessee Based on the above decisions in line with the Karnataka high court decision supra, the property No. 180, NGEP Quarters, Binnamangala I Stage, Bangalore, is completely owned by the appellant and the property No 183, Binamangala II Stage, Bangalore is 'completely owned by appellant's spouse Anil Dev. The appellant was also questioned about the applicability of Bangalore ITAT decision in 2018 (3) TMI 581-ITAT BANGALORE Shri Raghuram P Nambyar and Smt. Veena NanlbYar" Versus Asst. Commissioner of Income Tax, Circle 1 (2) and Dy. Director of Income Tax (Intl. Taxation) , Circle 1 (1) , Bangalore which provides as follows: Bangalore ITAT rejects assessee-individuals' (husband and wife) claim that long term capital gains ('LTCG') arising out of sale of property (registered in the name of husband) during AY 20-10 should be split equally in their hands and taxed accordingly for AY 2009-10, rejects assessees' stand that they were co-owners of the property and rejects their exemption claim u/s. 54EC / 54F; Assessee argued that though the purchase and sale deeds only r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and not a residential house and the remaining two properties are residential properties out of which one being S. No. 2 above is fully owned by Smt. Alka Dev, the wife of the present assessee and one being S. No. 1 above is fully owned by the present assessee. This order of CIT (A) has attained finality because the appeal filed by the revenue against this order of CIT (A) has been dismissed by the tribunal because of low tax effect. Therefore, the objections of the AO and CIT (A) does not survive. 7. Moreover, this is not the case of the revenue that the wife of the assessee Smt. Alka Dev does not have the funds to buy this property as her own property. As per the details available on page 143 of the paper book, the wife of the assessee Smt. Alka Dev has made a payment of Rs. 299,47,500/- for acquiring this property and this payment is made by her from the joint account No. 1604 except Rs. 11 Lacs, which was paid by her from her individual bank account No. 2724 and an amount of Rs. 20 lacs was deposited by her in Capital gain Account Scheme out of the same joint account No. 1604. Hence total payment by her from this joint account No. 1604 is Rs. 308,47,500/- and total deposit in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
