9911796707
TMI Blog1989 (4) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,000. The said house had been acquired by the assessee in Jan., 1967 for a sum of Rs. 47,000. So far as the quantum of capital gain is concerned, there is no dispute between the parties. The assessee purchased a plot of land situate at Surya Nagar in the District of Gahaziabad on 28th Dec.,1979and claimed that she constructed a house on the said plot within the period prescribed under s. 54 and, therefore, the amount of capital gains was exempt from tax. 4. Under s. 54 as it stood at the relevant time, a capital gain arising from the sale of buildings income from which is chargeable under the head "income from house property" and which in the two years immediately preceding the date on which the transfer took place was being use by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plot on 28th Decision.,1979 construction of a house thereon had been started and a sum of Rs. 2,10,000 had been spent. For this, reliance was placed on a certificate dt.11th Jan., 1982. Regarding the contention that only a small portion of the house was let out, certain affidavits were filed before the predecessor of the CIT (A). A reading of the order under appeal indicates that the CIT (A) who ultimately decided the assessee's appeal has rejected that additional evidence on the that no satisfactory explanation was given as to why the same could not have been filed in the course of the assessment proceedings. The learned counsel for the assessee contended that the successor CIT (A) was not justified in rejecting the evidence that had alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of the assessee. An agreement to sell was executed between the assessee and the purchaser, a copy of which is at pages 25 to 30 of the paper book. This document shows that on the date thereof, the assessee was residing at 20ARajput Road, Civil Lines,Delhi. Then the document says that the whole of the property agreed to be sold is in occupation of Shri Pramod Kumal Gola on a monthly rent of Rs. 500 and, therefore, only symbolic possession will be given. The same facts are repeated incl. 2 of the sale deed that was executed onthe 15th of Jan., 1979. Here also, it is specifically stated that the whole of the property was in occupation of the tenant aforesaid Thus before the ITO the evidence produced was to the effect that the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ola who were more important persons have never come forward to say that only a small portion of the house was let out and the rest of the house continued to be occupied by the assessee till the sale. We, therefore, confirm the findings of the authorities below that prior to sale i.e. Some where after may 1978 the assessee vacated the house and let out the same to Pramod Kumar Gola and we hold that from June, 1978 onwards the assessee was not in possession of the house for purposes of her residence. 10. As already stated the learned counsel contended that even if the assessee was not in possession on the date of sale, she having in possession of the property within two year prior to the sale i.e. between 15th Jan., 1977 to 31st May, 1978 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structed before15th Jan., 1981. The assessee admittedly purchased a plot of land on28th Dec., 1979and she claimed that the house was constructed within the said period of two years though the construction was not complete in all respects. The authorities below have held that within the aforesaid period of two years, the house was not completed and, therefore, the exemption is not available. The learned counsel for the assessee relied upon CWT vs. K.B. Pradhan (1981) 130 ITR 393 (Ori) in which it was held that exemption under s. 5(1)(iv) of the WT Act is not available to a house which is in the process of construction, incomplete and not habitable but that if the construction had reached the stage of habitability, the exemption would be avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate does not show how its author was qualified to issue a certificate. It is not stated that this firm of Architects was supervision the construction of the building in question. This certificate therefore, was of no evidentiary value. Then there is a letter dt.14th Dec., 1981addressed by the assessee to the ITO. It states that the erection of this building is under construction. In his letter dt.12th Feb., 1982the ITO had told the assessee that the house should have been completed before14th Jan., 1981and that this condition was not fulfilled. In reply the assessee merely stated that she invested Rs. 2 lacs/Rs. 2.10 lacs on the construction of said house and did not specify when was this amount spent and what was the stage of cons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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