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2020 (8) TMI 358 - ITAT DELHIDeduction u/s 54F - assessee allegedly did not fulfil the conditions of Section 54F - AO denied the exemption of long term capital gains on the reason that assessee on the date of transfer of original asset had more than one residential house although, both the assets were jointly owned by assessee with his wife - Assessee further contended alternatively that even if it is assumed that assessee continued to be owner of the property at Malibu Town, Gurgaon, assessee was joint owner of the property with 50% share and as such, cannot be considered as own residential house in terms of proviso to Section 54F - HELD THAT:- If the ownership was recorded for maintenance purpose in the name of assessee, it is not relevant for satisfying the conditions of Section 2(47)(vi) - whatever objections have been raised by the authorities below, were no relevant to discard the explanation of assessee which is supported by the documentary evidences on record, genuineness of which, have not been doubted by the authorities below. The claim of assessee is also supported by the fact that assessee paid the capital gains tax on sale consideration of impugned property which have been accepted by the A.O. Similarly, the part of the share of wife of the assessee was also transferred and according to Learned Counsel for the Assessee in the case of wife of assessee the return have been accepted on identical facts under section 143(1) of the I.T. Act, 1961 and no reassessment proceedings have been initiated till date. The A.O, therefore, bound to follow the rule of consistency in the matter as well. In view of the above facts it is clear that assessee transferred the capital asset to his son with all rights, title, interest and enjoyment in the impugned immovable property through Agreement to Sell and Registered Transfer Deed, subject to consideration, therefore, assessee would not be having more than one residential house at the time of claiming exemption from capital gains and as such, A.O. was not justified in rejecting the claim of exemption under section 54F of the I.T. Act. For alternate contention assessee was having only 50% share in the impugned residential property which was sold to the son of the assessee. Therefore, A.O. cannot deny exemption under section 54F of the I.T. Act, 1961, to the assessee. The alternate contention of Learned Counsel for the Assessee is allowed. Assessee has genuinely transferred the impugned property in Malibu Town, Sohna Road, Gurgaon, to his son and satisfied the conditions of Section 54F of the I.T. Act. Thus, assessee would be entitled for exemption/deduction under section 54F of the I.T. Act. In view of the above, we set aside the Orders of the authorities below and delete the addition and direct the A.O. to allow exemption under section 54F of the I.T. Act to the assessee. In view of the above the other contentions of assessee regarding use of the impugned property for commercial purpose and consequential grounds are left with academic discussion only. We do not propose to decide the same. Ground No.1 of the appeal of the Assessee is allowed.
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