TMI Blog2022 (4) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Respondents : T. Sunil Goutam ORDER Per Bench These assessee's and Revenue's twin cross-appeals each for A.Y. 2008-09 (ITA Nos. 215 and 217/Hyd/2019) and A.Y. 2010-11 (ITA Nos. 216 and 218/Hyd/2019) arise from the CIT(A)'s separate orders; both dated 30.10.2018 passed in case Nos. 88 87/15-16/DCIT CC-1(2)/CIT(A)-11 Hyd, assessment year wise, respectively; in proceedings u/s. 143(3) r.w.s. 147 of the Act. Heard both the parties. Case files perused. 2. Learned authorized representative appearing at the assessee's behest states that he pressed for her identical sole substantive grounds in A.Y. 2008-09 on merits that both the lower authorities have erred in law and on facts in treating the correspondi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nowhere surrendered or transferred her right or title or claim in favour of the developer since she had herself made it clear that the same could not be treated as an instance of part-performance in light of the foregoing statutory provisions. We thus hold that the learned lower authorities have erred in law and on facts in treating the former assessment year herein 2008-09 as the year of chargeability of the consequential capital gains arising from the joint development agreement dt. 14.09.2017. The assessee succeeds in her latter substantive grounds as well as in main appeal ITA No. 215/Hyd/2019 to this effect. All other pleadings therein are rendered academic. Coming to the assessee's latter appeal ITA No. 216/Hyd/2019, learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this was the predominant view of all High Courts on this issue including that of jurisdictional High Court/ITAT in respect of eligibility of deduction under section 54F, the same is binding on the Assessing Officer. It was submitted that although there was an amendment section 54 and 54F substituting the word a with 'one' with effect from 01/04/2015 the same is prospective as held in the case of CIT v. Karpagam 226 Taxman 197 (Mad). In this regard, the appellant submits as under: This is a case in which the AO was of the opinion that capital gain is assessable in the year of development agreement taking into account the notional value as deemed consideration for working out 'full value of consideration for computing ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of computation of income as mandated by the Act would fail. At this stage it is profitable to refer to the interpretation of a deeming provision as reported in ITR 129 440 (SC). In this judgment the court followed the observation of Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council [1952] AC 109 at p. 132 observed as under: If you are bidden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents which, if the putative stat of affairs had in fact existed, must inevitably have flowed from or accompanied it; and if the statute says that you must imagine a certain state of affairs, it cannot be interpreted to mean that having done so, you must cause or permit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5/2006 relevant to assessment year 2007-08, Although the assessee was to get the constructed houses, the Hon'ble Court allowed deduction under section 54F in respect of all flats. In the case of Vishal Dutta v. ITO (2016) 68 taxmann.com 337 (Bombay), it was held that completion of construction or occupation is not requirement of law, and, therefore, exemption cannot be denied merely because house is not yet complete. In view of the above judicial precedents, completion of construction is not a requirement to claim deduction under section 54F, Even otherwise, these views being favourable to the appellant, the same may be adopted as decided by Supreme Court in the case of CIT v. Vegetable Products Ltd. [1973] 88 ITR 192 318. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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