9911796707
TMI Blog2023 (7) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... 022. However, the appeal to the Honourable Tribunal is filed on 28th November 2022, thereby a delay of 159 days. 3. that the delay in filing the appeal is, for the reason that I missed noticing the mail sent by the Department informing me that the CIT(A) order was available for download on my e-filing portal. As such, the CIT(A) order was not sent to my Chartered Accountants to proceed in the matter. It totally slipped from my mind. It was only on 31st October, 2022 that when I received notice from the Assessing Officer requiring me to show cause as to why penalty under section 271(1)c should not be levied, I scanned through my e-filing portal and downloaded the CIT(A) order. I, thereafter, immediately sent the order together with relevant appeal papers to the Chartered Accountants for filing the appeal with the Tribunal, and as such there is a delay in filing the same within the statutory time limit." 3. In view of the above, the assessee has requested to condone the delay as the same is unintentional. On the other hand, the learned Departmental Representative ("learned DR") opposed the prayer for condonation of delay and submitted that the assessee cannot be said to be ignoran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flat (Flat No 1102, Raviraj Palm) which has given rise to capital gains and as such, per the CIT(A) the conditions of the provisions of section 54F of the Act have not been satisfied. The appellant contends that on the facts and in the circumstances of the case and in law, the CIT(A) ought to have allowed the exemption claimed under section 54F of the Act inasmuch as the appellant has satisfied the conditions of the provisions of section 54F of the Act. 2. The CIT(A) erred in upholding the action of the Assessing Officer in making an ad-hoc addition of Rs 2,01,600 under section 23(4) of the Act by estimating the deemed rental value of the house properties at Rs 24,000 per month (in aggregate of the three properties) on the ground that no evidences have been filed by the appellant. The appellant contends that on the facts and in the circumstances of the case and in law, the impugned addition is bad in law inasmuch as the CIT(A) has not correctly appreciated the facts of the case. The appellant craves leave to add to, alter or amend the aforestated grounds of appeal." 6. The issue arising in ground No. 1, raised in assessee's appeal, is pertaining to the claim of deduction under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sideration received from the old flat. The AO further held that the date of investment in the new flat for the purpose of claiming deduction under section 54 of the Act will not be counted from the date of possession but it is the payment of the first instalment of Rs. 10 lakh made by the assessee on 10/02/2014 which decides that the said flat was actually purchased by the assessee on 10/02/2014, and therefore is beyond a period of one year from the date of transfer of the old flat. Accordingly, the AO rejected the claim of deduction under section 54 of the Act and brought to tax an amount of Rs. 11,77,218 as long-term capital gain. The learned CIT(A), vide impugned order, dismissed the appeal filed by the assessee on this issue. Being aggrieved, the assessee is in appeal before us. 8. We have considered the submissions of both sides and perused the material available on record. In the present case, the assessee along with his brother were co-owners, with an equal share, of the property, i.e. Flat No. 1102, Raviraj Palm ("old flat"), which was acquired on 19/05/2010 for Rs. 30,55,500. The said flat was sold for a consideration of Rs. 70 lakh as per the sale deed dated 11/02/2016. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f section 54 will be available to the assessee on the capital gains so arisen on the transfer of the original residential house. From the letter of allotment issued by Mayfair Housing Pvt. Ltd., forming part of the paper book on page 26, we find that upon payment of full agreed consideration in respect of the new flat, the possession of the new flat was handed over on 07/04/2016. We find that the Hon'ble jurisdictional High Court in CIT v/s Smt. Beena K. Jain, [1996] 217 ITR 363 (Bom.) in a similar factual matrix affirmed the findings of the Tribunal that the relevant date for the purpose of section 54F of the Act is the date when the assessee paid the full consideration amount and obtained the possession of the new flat. The relevant findings of the Hon'ble jurisdictional High Court, in the aforesaid decision, are as under:- "The assessee who is the respondent before us had sold office premises on 237-1987 which resulted in long-term capital gains of Rs. 24,05,050. Prior to the sale she had entered into an agreement for purchase of a residential flat which agreement was dated 4-9-1985. The agreement was for purchase of a flat for the total consideration of Rs. 12,26,751. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance of the transaction and came to the conclusion that purchase was substantially effected when the agreement of purchase was carried out or completed by payment of full consideration on 29-7-1988 and handing over of possession of the flat on the next day. 3. In the premises the application is dismissed and the rule is discharged with costs." 11. Since in the present case also upon payment of full agreed consideration, the possession of the new flat was handed over to the assessee along with his wife on 07/04/2016, which falls within a period of two years from the date of sale of the old flat, i.e. 11/02/2016, therefore respectfully following the aforesaid decision of the Hon'ble jurisdictional High Court we are of the view that the assessee is entitled to claim deduction under section 54 of the Act in respect of capital gains from the sale of old flat. Accordingly, ground No. 1 in assessee's appeal is allowed. 12. During the hearing, the learned Authorised Representative wishes not to press ground No. 2 raised in assessee's appeal. Accordingly, ground No. 2 is dismissed as not pressed. 13. In the result, the appeal by the assessee is partly allowed. Order pronounced in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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