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2012 (9) TMI 40 - AT - Income TaxDeduction u/s 54 - LTCG arising from sale of a residential flat on 07.03.06 - dis-allowance on ground of not producing evidence of taking possession of flat within two years as applicable for investment in case of purchase of flat - Held that - In the present case, the assessee had booked the new flat with the builder and as per agreement, the assessee was to make payment in installments and the builder was to handover the possession of the flat after construction. It has therefore to be considered as a case of construction of new residential house and not purchase of flat. Therefore, capital gain had to be invested within a period of three years from the date of transfer. Old flat had been sold on 7.3.2006 and therefore the assessee was required to construct a new residential house by 6.3.2009. Hence, assessee had invested the capital gains in construction of a new residential house within a period of three years, this should be treated as sufficient compliance of the provisions. It is not necessary that the possession of the flat should also be taken within the period of three years. Merely because the possession had not been taken within the period of three years, the exemption cannot be denied Dis-allowance on ground of non deposit of unutilized capital gain amount in the capital gain account scheme before the due date of the filing of the return of income for the relevant year - assessee had deposited Rs 1 lacs as booking amount before due date of filing of return - Held that - In our view, this is only a technical default and on this ground the claim of exemption cannot be denied particularly when the amount had been actually utilized for the construction of residential house and not for any other purpose - Decided in favor of assessee
Issues Involved:
1. Disallowance of claim of exemption under Section 54 of the Income Tax Act, 1961. 2. Non-deposit of unutilized capital gain amount in the Capital Gains Account Scheme. Issue-wise Detailed Analysis: 1. Disallowance of Claim of Exemption under Section 54 of the Income Tax Act, 1961: The core dispute is the disallowance of the exemption claim under Section 54 of the Income Tax Act, 1961, related to the long-term capital gain from the sale of a residential flat. The assessee, along with his wife, jointly owned a flat that was sold, and a new flat was booked with the builder. The assessee claimed exemption under Section 54, arguing that the capital gain was invested in the new residential flat. The Assessing Officer (AO) denied the exemption, stating that the assessee did not provide evidence of taking possession of the new flat within the stipulated period. The AO emphasized that the assessee needed to utilize the capital gain towards the purchase or construction of a new residential house within the specified time frame or deposit the amount in a specified bank account. The assessee contended that the booking of the new flat should be considered as construction, not purchase, citing CBDT Circulars No. 471 and 672, and various judicial precedents. The assessee argued that the time limit for construction is three years, and the delay in possession was due to the builder's delay, which should not affect the exemption claim. The CIT(A) upheld the AO's decision, leading to the appeal before the Tribunal. The Tribunal acknowledged that the booking of the flat with the builder should be treated as construction, not purchase, based on CBDT Circulars and judicial precedents. The Tribunal noted that the assessee had invested a substantial amount within the three-year period and ultimately took possession of the flat. The Tribunal emphasized that the purpose of Section 54 is to allow exemption if the capital gain is invested in constructing a new residential house within three years, and possession delays due to the builder's default should not negate the exemption. 2. Non-deposit of Unutilized Capital Gain Amount in the Capital Gains Account Scheme: The second issue pertains to the non-deposit of the unutilized capital gain amount in the Capital Gains Account Scheme. The AO and CIT(A) noted that the assessee had only paid a booking amount before the due date of filing the return and did not deposit the balance in the specified account. The assessee argued that the default was due to ignorance of law and that the entire amount was kept in a savings bank account and utilized for constructing the new house. The Tribunal considered this a technical default and noted that the intention was always to invest in the new residential house. The Tribunal referred to the decision in Jagan Nath Singh Lodha's case, which supported the view that technical defaults should not lead to disallowance if the amount was ultimately utilized for the intended purpose. The Tribunal also discussed the interpretation of the due date for filing returns under Section 139(1) and 139(4), supported by the judgment in Ms. Jagriti Aggarwal's case. The Tribunal concluded that the extended period under Section 139(4) should be considered for utilizing the capital gain amount, and the assessee had utilized the amount within this extended period. Conclusion: The Tribunal concluded that the assessee is entitled to exemption under Section 54, setting aside the CIT(A)'s order. The Tribunal allowed the appeal, emphasizing that the substantial investment within the stipulated period and the technical default in depositing the amount should not deny the exemption. Result: The appeal of the assessee is allowed. The order was pronounced in open court on 13th June 2012.
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