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TMI Blog2015 (3) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... occupancy certificate issued by PMC confirms the fact that the construction was completed and building was ready for occupation during the previous year relevant to assessment year 2008-09. Similarly, in respect of electricity bill, the verification carried out by the Assessing Officer reflected that the bill was issued during the previous year relevant to assessment year 2008-09. Another evidence filed by the assessee was the temporary possession letter dated 20.04.2007 issued by the builder which the Assessing Officer admitted that the assessee had furnished during the course of assessment proceedings In view of the evidences and the remand report of the Assessing Officer, it is apparent that the assessee had received the possession of the two flats in City Woods complex during the captioned assessment years though the agreement of purchase of the said flats was executed on 19.11.2004.In view of the above said facts and circumstances and evidences filed by the assessee before the CIT(A), we confirm the observation of CIT(A) in this regard that the assessee had purchased the said flats in instant assessment years under appeal. The next aspect of the issue was the purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee to furnish the complete details of the sale transaction including the copy of purchase deed and also the details of deduction claimed under section 54 of the Act in respect of re-investment in residential property. On the perusal of details furnished by the assessee, the Assessing Officer noted that the assessee along with his brother Shri C.A. Dhere sold the plot at Fursungi vide agreement to sell dated 12.04.2007 for a total consideration of ₹ 1,39,20,000/-. The assessee s share in the said consideration was 50% at ₹ 69,60,000/-. The cost of acquisition of the said plot as on 01.04.1981 was shown at ₹ 9,00,000/- and cost of improvement to the said plot during the financial year 1988-89 was shown at ₹ 25,800/- and in financial year 1990-91 at ₹ 1,75,880/-. The assessee had worked out the long term capital gains at ₹ 58,43,331/-, against which, he had claimed deduction under section 54F of the Act and declared taxable long term capital gains of ₹ 7,52,311/-. On the perusal of details furnished by the assessee in respect of the investment in the new residential property, the Assessing Officer noted that the assessee had made invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee since majority payments were made between the period 27.09.2004 to 03.11.2004 and also the assessee had procured housing loan from COSMOS Bank for purchase of the said properties and sum of ₹ 43,65,000/- was disbursed on 31.01.2005 itself and also rejected the plea of the assessee that it had joined two flats, held the assessee not to be entitled to the claim of deduction under section 54F of the Act at ₹ 50,91,020/-. 5. Before the CIT(A), the assessee furnished written submissions vis- -vis contention of the Assessing Officer that the assessee had received possession of the flats in City Woods project prior to 20.04.2007 and also purchase of two independent flats, which are incorporated under para 4.4 at pages 7 to 9 of the appellate order. The CIT(A) noted that the contention of the Assessing Officer that the assessee had received possession of flat Nos.304A 304B in City Woods prior to 20.04.2007 was incorrect since the assessee had already filed copies of the occupancy certificate dated 18.03.2008 issued by PMC in respect of impugned flat, the first MSEB bill dated 14.08.2007 in respect of the combined flat (Nos.304A B), the temporary possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had purchased two independent flats vide two separate sale deeds and hence, not entitled to the exemption under section 54F of the Act was rejected because of various case laws on the issue. The CIT(A) placed reliance on the ratio laid down by the Hon ble Karnataka High Court in CIT Vs. D.Ananda Basappa reported in 309 ITR 329 (Kar), against which SLP filed by the department had been dismissed by the Hon ble Supreme Court on 10.08.2009. The CIT(A) held that purchase of two separate residential units perse, does not dis-entitle the assessee from claiming the deduction under section 54F of the Act. In view thereof, the appeal of the assessee was allowed, against which, the Revenue is in appeal before us. 7. The issue raised by the Revenue is against the said allowance of exemption under section 54F of the Act. The learned Departmental Representative for the Revenue pointed out that for claiming deduction under section 54F of the Act at ₹ 50,91,020/-, the assessee had made investment into two flats, for which the agreement to sell was executed on 19.11.2004 and the possession was received on 20.04.2007. It was further pointed out by the learned Departmental Representative f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew asset within a period of three years after the date of transfer of original asset; and the income from such residential house other than the one owned by the assessee on the date of transfer of original asset, is chargeable to tax under the head income from property . Further, provisions are provided under section 54F of the Act in relation to the transfer of new assets which are not relevant for the issue raised before us hence, we restrict ourselves to the sub-section (1) of section 54F of the Act and the proviso thereunder. 10. Now, coming to the facts of the case, the assessee during the year under consideration had sold land at Fursungi along with his brother and both of them had 50% share in the said property. The said property was sold for total consideration of ₹ 1,39,20,000/- and 50% share of the assessee was worked out to ₹ 69,60,000/-. The assessee declared income from capital gains at ₹ 58,43,331/- after claiming the indexed cost of land and indexed cost of construction carried out in various years. Against the said income declared on account of long term capital gains, the assessee claimed deduction under section 54F of the Act vis- -vis the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pies of occupancy certificate issued by PMC in respect of the impugned flats dated 18.03.2008 and the first bill of MSEB dated 14.08.2007 in respect of combined flats i.e. flat Nos.304A and 304B. All these documents, the assessee claims to have filed before the Assessing Officer, but the CIT(A) confronted the same to the Assessing Officer in appellate proceedings and remand report was received from the Assessing Officer. In the remand report, the Assessing Officer mentioned that the occupancy certificate issued by PMC confirms the fact that the construction was completed and building was ready for occupation during the previous year relevant to assessment year 2008-09. Similarly, in respect of electricity bill, the verification carried out by the Assessing Officer reflected that the bill was issued during the previous year relevant to assessment year 2008-09. Another evidence filed by the assessee was the temporary possession letter dated 20.04.2007 issued by the builder which the Assessing Officer admitted that the assessee had furnished during the course of assessment proceedings. In view of the above said evidences and the remand report of the Assessing Officer, it is apparent t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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