9911796707
TMI Blog2004 (7) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... onstruction of a residential building. Since the case of the assessee was not that he had constructed a residential building after the sale and by utilising the sale proceeds, the benefit of section 54 was not available to the assessee. The assessee preferred miscellaneous petition before the Tribunal to which the Tribunal recalled the order with the intention to hear the matter afresh after issuing notice to both parties vide its order dated 29-3-2001 by opining that certain vital facts were necessary for adjudicating the grounds of appeal and the matter requires further clarification. The revenue carried the same order in the miscellaneous petition before the Hon ble High Court. The Hon ble High Court mainly relied upon the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered the matter in a regular appeal and as such there is no mistake, which can be rectified. The learned counsel for the assessee Shri Venkatesan further contended that this miscellaneous petition is subject to the order of the High Court. So, the objection raised by the revenue should not be considered. 3. We have considered the rival submissions. First we shall deal with the objection of the learned counsel for the revenue that the miscellaneous application is signed by the advocate/counsel of the assessee. Without going into much discussion and debate, the present miscellaneous petition is to be heard by the Tribunal subject to the order of the Hon ble High Court of Karnataka in which the original miscellaneous petition was set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the sale proceeds, the assessee makes investment in the construction of a residential building. Because it is not the case of the assessee that he has constructed residential building after the sale and by utilising the sale proceeds, the benefit of section 54 cannot be available to the assessee." 5. Section 54 of the Act reads as under : Section 54(1) : Subject to the provisions of sub-section (2), where, in the case of an assessee being an individual or a Hindu undivided family, the capital gain arises from the transfer of a long-term capital asset, being buildings or lands appurtenant thereto, and being a residential house, the income of which is chargeable under the head "Income from house property " [Emphasis supplied] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stipulated period of which the transfer of original asset took place or which is not utilised by the assessee for the purchase or construction of the new asset before the date of furnishing the return of income under section 139, shall be deposited in the account as prescribed by the Government in such bank or institution as may be specified, in any scheme which the Central Government may, by Notification in the Official Gazette, framed in this behalf and such return shall be accompanied by proof of such deposit. 6. Lot of changes has been effected from the introduction of section 54 by the Finance Acts, such as Finance Act, 1982, Finance Act, 1985 and Finance Act, 1986. The scope of the amendment and effect to these amendments have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee cannot claim the benefit of such land under section 54 of the Act. Insofar as the benefit under section 54 is concerned, the deduction is available only when out of the sale proceeds, the assessee makes the investment in construction of a residential building. In the present case before us, admittedly, the building is on short-term gains and the long-term gains are from the land appurtenant thereof. The basic requirement for claiming deduction under section 54 is that the capital gains should arise from the transfer of long-term capital asset being building or land appurtenant thereof and being a residential house. . . . Admittedly, in the present case before us, the super structure is clearly in the nature of short-term capital gain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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