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TMI Blog2015 (10) TMI 2788X X X X Extracts X X X X X X X X Extracts X X X X ..... 50C of the Act for working out deduction U/s 54F of the Act on the wrong plea that no objection was raised against increasing the sale consideration by A.O. U/s 50C. Such findings are factually incorrect in view of ground of appeal written submission made before the Hon'ble CIT(A). 2. (a) On the facts and in the circumstances of the case the ld CIT(A) has factually and legally erred in confirming the addition of Rs. 54,22,542/- on account of the claim made U/s 54F without appreciating the facts of the case in right perspective. (b) On the facts and in the circumstances of the case the ld CIT(A) has factually and legally erred in rejecting the claim of the appellant U/s 54F of the Act by taking a very narrow meaning of the words "for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minor son Kartik on 23/01/2002 for a consideration of Rs. 3,10,000/- and Rs. 34,000/- were paid as stamp duty expenses. The cost of land to assessee came at Rs. 3,44,000/- whereas the assessee had taken cost of land at Rs. 4,43,160/- and after indexation, it was claimed at Rs. 6,57,458/-. For claim of deduction U/s 54F, the assessee had also submitted some documents/receipts, according to which she had purchased a plot of land at Narayan Vihar (R), Jaipur for a consideration of Rs. 61,08,175/- through auction by JDA. The ld Assessing Officer gave reasonable opportunity of being heard to apply provisions of Section 50C of the Act for computing the capital gain. There was no response on this query from the assessee. The ld Assessing Officer h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A), who had dismissed the assessee's appeal by observing as under:- "4.3 I have considered the facts of the case; assessment order and appellant's written submissions. Appellant claimed deduction under Section 54F in respect of capital gain on sale of capital asset of the ground that it was invested in residential house property. Assessing Officer examined the documents submitted by the appellant and as per that appellant claimed the said deduction on commercial property purchased from JDA. It is not in dispute that the commercial plot purchased by the appellant was only to be used for commercial purposes. Even the map for construction approved by JDA on 26/4/2011 clearly mentioned the plot as commercial. As against this, appellant onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial house. The JDA approved plan is for commercial construction only. 5. Even the photograph of the property submitted by the appellant nowhere indicates that it was residential house. Residential bungalow does not look like the structure created on the commercial plot by the appellant. 6. It is common knowledge that commercial plots are much costlier than residential plots and therefore no sensible person will construct residential house on commercial plot. Even otherwise commercial area developed by JDA cannot have residential house since no such permissible will be allowed by JDA. Considering all the above, it is clear that appellant did not construct residential house property within 3 years of transfer. The entire claim of reside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own in the instrument and valued for the stamp duty purposes. The ld AR further argued that Section 50C for claiming of deduction U/s 54F is not applicable. This issue has been considered by the various ITATs including Hon'ble Jaipur ITAT that deem provision could not be applied beyond intention of Legislature, for which he relied on the decision in the case of Gyan Chand Baira Vs. ITO (2010) 133 TTJ (JP) 482, 45 DTR 41 (2010) 6 ITR 147. The ld AR requested to consider the sale consideration, which has been received by the assessee i.e. at Rs. 60.80 lacs. The assessee had purchased a plot from JDA for Rs. 61,08,175/-. The ld CIT(A) had failed to consider the photographs of building constructed, which was for the purpose of residence. He fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble ITAT has confirmed the order of ld CIT(A). The ld AR on the basis of above argument and case law cited above has prayed to allow the appeal in favour of the assessee. 5. At the outset, the ld DR has vehemently supported the order of the ld CIT(A). 6. We have heard the rival contentions of both the parties and perused the material available on the record. The plot was allotted by the JDA itself shows that it was a commercial plot and on that the assessee constructed some rooms. He also submitted the copy of agreement dated 31/7/2010 made with M/s Kalyani Engineering, Jhotwara, Jaipur for construction as per map provided by the assessee. The total contract amount was Rs. 10.50 lacs. There was a receipt for payment of Rs. 19,281/- f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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