TMI Blog2021 (8) TMI 1201X X X X Extracts X X X X X X X X Extracts X X X X ..... see has purchased two adjacent residential houses, according to us the assessee is entitled to deduction u/s 54 of the Act on the amount invested in both the houses. Addition u/s 69 - Unexplained investment in purchases of property - HELD THAT:- Source of the fund is available with the assessee for payment to the builder and further the medical exigencies are meet by the Govt is not denied, We found that in absence of any other evidences contrary , benefit of cash available on hand should be granted four source of investment of ₹ 1 lakh with the builder. Accordingly, we direct the ld AO to delete the addition - Decided in favour of assessee. Adopting indexed cost of acquisition shown by the assessee - HELD THAT:- AO has considered the indexed cost of acquisition without giving any reason that why he is not agreeing with the indexed cost of acquisition shown by the assessee of ₹ 6,991,206 as shown in the computation of income. Therefore we agree with the argument of the learned authorised representative. We direct the ld AO to consider the cost of acquisition of the property sold/transferred for computation of capital gain. Thus, Ground is allowed. - ITA No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining residential units upto the due date of filing the return). 4. That the learned CIT(A) has erred in law and in facts in sustaining the addition of ₹ 50,000/- under section 69 of the Act on account of unexplained investmentson an adhoc basis merely on assumptions and without considering the documents filed by the appellant in this behalf. 5. That the learned CIT(A) has erred in sustaining the order of the learned Assessing Officer wherein he has inadvertently considered the indexed cost of acquisition at ₹ 69,21,021/- instead of ₹ 69,91,206/- (as per the Income Tax Return filed by the appellant for the year under consideration) without there being any disallowance in this respect. 2. The brief facts of the case shows that the assessee is an individual who filed her return of income on 07.07.2011 at ₹ 1,17,163/- against which the assessment was framed by the ld AO assessing the total income of the assessee at ₹ 2,17,163/- and also determined long term capital gain at ₹ 24,61,878/-. 3. During the course of assessment proceedings it was found that the assessee has sold a property at D-135, Sector-40, Noida at ₹ 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of investment made by the assessee with the builder found that assessee has made investment on 15.03.2011 of ₹ 1 lakh in cash . The source of this sum was questioned. The assessee submitted that the assessee and her husband has kept withdrawal at home and source of ₹ 1 lakh is withdrwal from Punjab National Bank withdrawan on 13.03.2010. The ld AO noted that such withdrawal could have used by the assessee for health expenditure and therefore, same could not have been available with the assessee for investment in the house. Therefore, he did not grant the credit for the same. Consequently, the ld AO computed the capital gain considering the sale consideration as per section 50C of ₹ 1,59,31,035/- and granted deduction of index cost of acquisition of ₹ 69,21,021/- and thus computed long term capital gain of ₹ 90,10,014/-. The assessee was also granted deduction u/s 54EC of ₹ 50 lakhs, however, deduction u/s 54 was restricted to ₹ 15,48,136/-. Thus, long term capital gain chargeable to tax computed at ₹ 24,61,878/-. The sum of ₹ 1 lakhs was added in the hands of the assessee u/s 69C of the Act. Thus, the assessment order wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions and find that the introduction of the 3rd proviso to section 50C has been held by three different coordinate benches as retrospective in nature. The coordinate benches in Maria Fernandes Cherly v. ITO (IT )(2021) 187 ITD 738/ 123 Taxmann.com 252 /209 TTJ 850 /198 DTR 137/ 85 ITR 674 (Mum)(Trib), Chadra Prakash Jhunjhunwala Vs. DCIT 113 Taxmann.com 246 and Sandeep Patil Vs. ITO in ITA No. 924/Banglore/Del/2019 has held so. Therefore, we find that issue is squarely covered in favour of the assessee, accordingly, we hold that as the difference between stamp duty valuation u/s 50C is just 8.98 % higher than the actual sale consideration. Only actual sale consideration should be taken for working out capital gain. Accordingly, additional ground raised by the assessee is allowed. 9. Ground No. 1 is general in nature and therefore, it is dismissed. 10. Ground No. 2 is with respect to the adoption of stamp duty value as sale consideration has already been decided by us in the additional ground raised by the assessee in favour therefore, this ground do not survive, hence dismissed. 11. Ground No. 3 is with respect to the fact that whether the deduction u/s 54 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emergency of her husband, which was not utilized , therefore, as the cash was available same was deposited with the builder for purchase of property. The ld AR further stated that the medical expenditure of the husband of the assessee are meet by Govt under CGHS Scheme, however, the said cash was not utilized for any other purposes and kept at home, so was used for paying to builder. She also submitted the details of family member of the assessee. It was also stated that out of ₹ 1,60,000/- available with the assessee only ₹ 1 lakh was used for payment to the builder and therefore, the assessee has enough cash on hand and hence addition should not have been made at all. The learned authorised representative further submitted that the learned CIT A has also confirmed the addition to the extent of ₹ 50,000 without any basis. 14. The ld DR supported the orders of the lower authorities. 15. We have carefully considered the rival contentions and perused the orders of the lower authorities. The fact shows that the assessee has withdrawn ₹ 1,60,000/- from her bank account, undisputedly, Out of the above sum only ₹ 1 lakh has been utilized for paym ..... X X X X Extracts X X X X X X X X Extracts X X X X
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