9911796707
TMI Blog2023 (9) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... ty u/s 143(3) of the Act and confirmed by ld. CIT(A) is against the facts and bad at law. 2. Under the facts and circumstances of the given case, the Ld. Assessing Authority has grossly erred in disallowing the exemption from long term capital gains of Rs. 91,73,335/- claimed u/s 54 of the Act in respect of investment in new House Property within prescribed time, which is grossly injudicious, against the facts of the case and bad at law. 3. Under the facts and circumstances of the given case, the Ld. Assessing Authority has grossly erred in holding that the exemption u/s 54 of the Income Tax Act for the relevant AY 2012-13 would be inadmissible as 'Agreement to sell' of new asset was made more than one year ago without consideri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly she had to purchase the new assets against this sale or to claim exemption u/s 54 of the Act within one year before i.e. from 11.11.2010 till 11.11.2011. But the assessee has entered into an Agreement to Purchase new residential asset on 11.10.2010 which falls beyond the stipulated date i.e. the purchase date did not lie within one year before. So, the AO opined that the claim of exemption u/s 54 of the Act is not admissible. 4. Against the above order, assessee appealed before the ld. CIT (A). Ld. AR for the assessee submitted that the AO had misinterpreted the claim and not appreciated the facts properly; that exemption u/s 54 had been claimed on the ground of construction of a new flat and not on the ground of purchase of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of purchase, in either case the date is beyond the period prescribed u/s 54 of the Act. 4.1 Ld. CIT (A) further noted that the assessee has not taken a ground that this was a construction which was eligible for deduction u/s 54. However, ld. CIT (A) rejected the same also by holding that this was a case of purchase of residential unit and not a case of construction. He noted that assessee's reliance on CBDT Circular No.672 and 471 is also not tenable. He noted that the CBDT circular is applicable to the case where the terms of allotment are similar to the SFS scheme of DDA. As per this scheme, allotment letter is issued when the first installment is paid. In assessee's case, as mentioned above, assessee has already paid a sum of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial house, The Central Board of Direct Taxes in its Circular No. 672 dated December 16, 1993 has made it clear that the earlier Circular No. 471 dated October 15, 1986 in which it was stated that acquisition of flat through allotment by the Delhi Development Authority has to be treated as a construction of flat, would apply to co-operative societies and other institutions. The tax authorities have relied upon the said circular and held that the builder would fall in the category of other institutions and, therefore, booking of the flat with the builder has to be treated as construction of flat by the assessee. In accordance with the said agreement, the assessee was to make payment in instalments and the builder was to construct an unfinis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Bhadoo (Appellant) A.Y. 2012-13 1 Date of Agreement for construction of residential house with the builder 10.02.2006 11.10.2010 2 Date of sale/transfer of the original asset 21.12.2011 11.11.2011 3 Investment upto due date of filing of return of income u/s 139(1) Rs. 4,00,97,217/- (Claim of section 54 from capital gains : Rs. 4,00,97,217/-) Rs. 1,00,00,000/- (Claim from 54 from capital gains : Rs. 91,73,335/-) 4 Date of possession of constructed residential house 30.10.2013 23.04.2012 10. Upon careful consideration, we find that on the touchstone of aforesaid case law, in the present case, the agreement for sale can be construed as agreement of construction. So the assessee has a window upto 11.11.2014 to construct the h ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
