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TMI Blog2012 (8) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... istence at the time of agreement dated 5.7.2003; but was to be constructed by the builder, therefore, the transaction of purchase cannot be said to have been completed. Purchase of the new flat by the assessee will be treated on the date when the assessee has received the possession after it is constructed and not on the date of agreement for purchase when the flat itself was not in existence. Claim u/s 54 allowed - Decided in favor of assessee - ITA No. 6691/Mum/2010 - - - Dated:- 8-6-2012 - SHRI VIJAY PAL RAO, SHRI N K BILLAIYA, JJ. Assessee by Dr K Shivram Revenue by Sh M Murali ORDER PER VIJAY PAL RAO, JM This appeal by the assessee is directed against the order dated 30.3.2010 of the Commissioner of Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the assessee on 4.7.2003, which is beyond one year from the sale of the flat on 27.12.2004. Accordingly, the Assessing Officer disallowed the claim u/s 54. 4 On appeal, the Commissioner of Income Tax(Appeals) confirmed the disallowance made by the Assessing Officer. 5 Before us, the ld AR of the assessee has submitted that the agreement dated 5.7.2003 is only an agreement for purchase and not agreement of purchase. He has further submitted that at the time of agreement, the flat in question, being Flat No.901-A, 9th Floor, Shantinath Tower was not in existence; but was under construction and therefore, the said agreement does not amount to transfer of the flat in question. Even otherwise, the assessee has not made the entire paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial purposes within a period of one year, the exemption u/s 54 is available notwithstanding the registration of sale deed is made beyond the period of one year. The relevant date is the date when the possession was handed over and not the agreement to purchase was entered into. He has also relied upon the decision of the Hon ble Supreme Court in the case of Berger Paints India Ltd. v. Commissioner of Income-tax reported in 266 ITR 99 on the point that department cannot take conflict stand by accepting the claim of one assessee on the same facts and denied in the case of another assessee. 5.2 On the other hand, the ld DR has submitted that when the assessee has purchased the new flat vide agreement dated 5.7.2003, then the date of purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.07.2003 Rs.1,00,000/- 22.08.2003 Rs.1,00,000/- 20.01.2004 Rs.1,00,000/- 13.02.2004 Rs.1,00,000/- 23.03.2004 Rs.1,00,000/- 17.04.2004 Rs.1,00,000/- 11.05.2004 Rs.1,00,000/- 02.06.2004 Rs.1,00,000/- 05.07.2004 Rs.50,000/- 26.07.2004 Rs.50,000/- 06.09.2004 Rs.1,00,000/- 17.01.2004 Rs.7,800/- 01.02.2005 Rs.12,07,800/- 6.2 It is clear that the substantial consideration was paid by the assessee either within one year prior or subsequent to the sale of existing capital asset. Therefore, when the possession was handed over only after the fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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