TMI Blog2022 (4) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... of granting exemption u/s 54 as well as 54F. Accordingly, we direct the AO to grant exemption u/s 54F of the Act to each assessee and as per their choice. On record, assessee prefers to get penthouse occupied by his daughter as exemption u/s 54F and by legally AO should allow this penthouse as exemption u/s 54F Thus we hold that the assessee is eligible for exemption under section 54F of the Act, hence, ground of appeal by assessee is allowed for parity of reasons. Long Term Capital Gains - Sale of society flat - proportionate portion of land in the society - AO rejected the contention of assessee that sale consideration includes consideration for land - as argued agreement entered into by the assessee with the buyers of flats does not state that ownership of the land has been transferred to the buyers - HELD THAT:- CIT(A) allowed assessee s claim of Long Term Capital Gains is to be charged on sale of land. We find that there is no contrary material to dislodge the findings of CIT(A). Further this issue has been considered by the Co-ordinate Bench in the case of Late Shri Sunil Dutt, father of the assessee. The assessee and Late Shri Sunil Dutt were having joint ownership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Ram Nath Sahu Ors vs. Gobardhan Sao reported as 2002 AIR 1201(SC) has held that while dealing with application seeking condonation of delay, acceptance of explanation furnished should be the rule and refusal an exception, more so when no negligence or inaction or want of bonafide can be imputed to the defaulting party. Taking pedantic and hyper technical view of the matter for rejecting the explanation furnished would cause enormous loss and irreparable injury to the party against whom the lis terminates. Thus, in view of the facts of the case and the law expounded by the Hon ble Apex Court, delay in filing of appeal is condoned and the appeal is admitted to be heard and decided on merits. 4. Shri Stany Saldana appearing on behalf of the assessee submitted at the outset that the only issue he is pressing in this appeal is with respect to denial of exemption u/s.54F of the Act. The property sold was jointly owned by the assessee with his father Late Shri Sunil Dutt in the ratio of 27:73. The Tribunal in the case of assesse s father in ITA No.2972/Mum/2012 for assessment year 2004-05 decided on 10/12/2019 has held that the assessee therein is eligible to claim exemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of 73:27 between them and it is clear that there exist 2 penthouses and two individual assessees. Therefore, each assessee will get separate exemption u/s 54F of the Act. This benefit is legally available to both the assessees. There are catena of cases in which courts have held that when there exists two portion of flats with one kitchen then the whole combined portion of the area will be treated as one single unit for the purpose of granting exemption u/s 54 as well as 54F. Accordingly, we direct the AO to grant exemption u/s 54F of the Act to each assessee and as per their choice. On record, assessee prefers to get penthouse occupied by his daughter as exemption u/s 54F and by legally AO should allow this penthouse as exemption u/s 54F of the Act. Accordingly, this ground raised by the assessee is allowed. Taking into consideration undisputed facts of the case and the decision of Coordinate Bench, we hold that the assessee is eligible for exemption under section 54F of the Act, hence, ground No.7 of appeal by assessee is allowed for parity of reasons. 7. In so far as other issues raised in grounds of appeal, no submissions were made by the ld. Authorized Representat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, wherein it was held that as per the above ratio, the flat owners will get right of possession as well as right on portion of the undivided share in the land. We notice that as per the proportionate area of flats occupied by him in respect of the total area of the building i.e. undivided share, the owner of the flat will get an automatic membership in the cooperative society in proportion to the undivided share. Since cooperative society owns the total area of the land and being a member of the society, he gets the ownership of the undivided share. As per the sale deed, it is clear that assessee gets a membership on the cooperative societies, it does mean that flat owners not only owns a super structure and also ownership right on the undivided share, therefore we are inclined to accept the findings of Ld. CIT(A) in distributing the sale proceeds into sale proceeds attributable to the land and super structure. Accordingly, we reject the contentions of the revenue and dismiss the grounds of appeal raised by the revenue. The Revenue has not been able to controvert the aforesaid findings. Thus, in view of undisputed facts of the case and the aforesaid decision by the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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