TMI Blog2023 (4) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... new facts namely, registration of sale deed dt.01.12.2021. In view of the above, we are of the opinion that the matter is required to be remanded back to the file of the Assessing Officer for examining afresh. Essential for the assessee to prove that she does not have more than a residential house at the time of claiming deduction u/s 54F - The documents produced before us clearly mentions the address of the assessee as 133A, Road No.15, Jubilee Hills, Hyderabad, Telangana 500003. This aspect has not been brought to the notice of the Assessing Officer by the assessee. As per the contention of the ld. DR, the ld.CIT(A) while deciding the issue had relied upon various documents produced before him at the time of appellate proceedings. For the above said purposes, we may fruitfully refer order of CIT(A) wherein the ld.CIT(A) had mentioned that the assessee had produced SRO Certificate, Municipal Taxes and GST receipts to show that the property mentioned in the return of income filed by the assessee were in the nature of commercial property and was not in the nature of residential property. As the case may be, without giving any finding on the above said facts, in the int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for scrutiny through CASS, for which notice u/s 143(2) of the I. T. Act was issued and served on the assessee. Subsequently, notices were issued to the assessee from time to time and the assessee has submitted her reply through ITBA Module. In the present case, assessee had claimed deduction u/s 54F of Rs.3,63,73,330/- towards purchase of residential property at Hyderabad. However, the claim of assessee was not allowed by the Assessing Officer after examining the submissions of the assessee, as she failed to fulfill the conditions prescribed under section 54F of the Act. Thereafter, the Assessing Officer had passed draft assessment order u/s 143(3) r.w.s. 144C(3) of the Act on 30.11.2021 disallowing the claim of the assessee u/s 54F, thereby determining the long term capital gains at Rs.7,58,13,772/- 3. Feeling aggrieved by the order passed by the assessing officer, assessee filed appeal before the Ld. CIT(A), who granted part relief to the assessee. 4. Feeling aggrieved by the order passed by the Ld. CIT(A), the Revenue is in appeal before us on the grounds mentioned herein above. 5. Before us, ld. DR had submitted that the assessee had not purchased any residential prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... door(looks like temporary arrangement) is fixed at the entrance of the flat, which was locked. From outside it appears, that, no interior works are undergoing inside the said flat. The pictures taken at the site is attached in the enclosure. 9.3 Documentary evidence in the form of photographic evidence is available on record. On 25/09/2021, in response to the show-cause notice issued u/s 142(1), the appellant's A.R. has replied as under, along with photographic evidence which is also available on record: The Assessee is in receipt of Show cause Notice referred to above and under authorization we make the following representation: The Assessee claimed deduction u/s. 54F in the AY 2019-20 towards purchase of Residential property at Flat No. 1102. 11th Floor. situated at Raidurg, Panmakhta Village. Gachibowli. It is stated in Show cause notice that in this connection a local enquiry through spot verification was conducted by the inspector of your office at the said premises. to verify the construction status of the Apartment and noticed that the said apartment is under construction and to show cause as to under what circumstances the builder has transferred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and GST paid during the course of appellate proceedings. The same were admitted by me as they are Public documents and could have as well been obtained by the Assessing Officer. 13.6 As the above documents are obtained from a Government authority the same cannot be considered as additional evidence under section 74 of the Indian Evidence Act, 1872. The relevant section reads as under : . 7. In support of Revenue, ld. DR had relied on the decision of Hon ble Supreme Court in the case of Commissioner of Customs (Import), Mumbai Vs. M/s. Dilip Kumar and Company and others (Civil Appeal No.3327 of 2017 dt.30.07.2018.). It was the contention of the ld. DR that section 54F is a deduction provision, hence, it is essential for the assessee, to fulfill all the conditions strictly provided in the said section for claiming the deduction. It was the case of the Revenue that neither the possession nor registration of flat happened in two years from the date of transfer of capital assets and hence, assessee is not entitled for claim u/s 54 of the Act. 8. On the other hand, ld. AR had submitted that the assessee had paid substantial amount to the builder within the time gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... she Sapphire Building 2,36,469 7 Rasoolpura Godown 4,747 8 Uppal Factory 40,607 11. On the basis of the above, it was submitted that there is no violation of conditions under section 54F of the Act in as much as not having one residential house in the city at the time of filing of the return of income. Further, there was no violation of Rule 46A of the I.T Rules, 1962. 11.1 Further, ld. AR also filed a letter dt.24.08.2020 addressed to the assessee by the builder informing that they completed the construction of apartment and that they are handing over the possession to the assessee on the said date. The contents of said letter reads as under : We are pleased to inform you that we have completed the construction of the apartment bearing No.1102 in the 11th Floor of the Tower The First being built by us in Sy.No.66/2 at Raidurg Panmaktha Village, Serilingampally Mandal, R.R. District, Telangana State booked by you. As per your letter dt.25.02.2020, we have completed the construction of the apartment and we are on this day handing ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purposes of claiming deduction u/s 54F of the Act, it is essential that the assessee within a period of 2 years on which the transfer took place purchased residential house in India. 14. In the present case, though the assessee had paid more than 80% of the payment to the builder, yet a substantial amount of more than rupees Rs.1 crore was to be paid by the assessee to the builder, the balance payments were made beyond the time provided by the Act. In the light of the above, it has to be decided on the facts whether the assessee had purchased the residential house within four corners of section 54F of the Act or not. Though there are various decisions which are mentioned hereinabove in the submissions of the assessee, however, those are required to be examined by the lower authorities in the light of new facts namely, registration of sale deed dt.01.12.2021. 15. In view of the above, we are of the opinion that the matter is required to be remanded back to the file of the Assessing Officer for examining afresh. 15.1. Dehors the above said finding for the purpose of claiming deduction u/s 54F of the Act, it is essential for the assessee to prove that she does not ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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