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TMI Blog2015 (10) TMI 1714X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the property on 30.05.2012 and there is no dispute of possession by the A.O. in the assessment order. Further, the Ld. D.R. relied on the judgment of Andhra Pradesh High Court in CIT v. Smt. Zaibunisa Begum (1984 (7) TMI 62 - ANDHRA PRADESH High Court) where Lordships have considered the issue in respect of transfer of building and land appurtenant, and the issue is on different facts where the construction was in a smaller area compared to the open land left on which the building is constructed. The same cannot be applied to the present case, as the assessee in toto has sold the land along with building. - Decided in favour of assessee. - ITA No.2103/Mds/2013 - - - Dated:- 11-9-2015 - SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment year 2010-11 admitting NIL income. The return was processed under Section 143(1) of the Income-tax Act, 1961 (in short 'the Act'). Further, the case was selected for scrutiny and notices under Section 143(2) and 142(1) were issued. During the financial year 2009-10, the assessee sold a residential house property for ₹ 1,12,00,001/- and claimed exemption under Section 54 of the Act. As the due date for filing of return was nearing, the assessee deposited long term capital gain in Capital Gains Account Scheme on 26.07.2010 and claimed the benefit of long term capital gain exemption. Whereas, the Assessing Officer called for the information during the hearing proceedings and denied the exemption on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Completion Certificate. The purchase of land and construction of property was completed within a period of three years from the date of transfer of the property sold, the CIT(Appeals) has observed in para 7 of his order as follows:- 7. The AR of the appellant has filed copy of the return of income filed for the AY 2009-10 for showing income from house property which is given on rent situated at Plot No.39, Raju Nagar, Thoraipakkam, Chennai 96 and also shown an amount of rent receipt at ₹ 7,800/- along with the property tax paid. The AR of the appellant has also made an alternative claim that if the Assessing Officer version that the property sold was not residential property and it is only lands the sale proceeds have been re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee was a long term asset. The construction was made and the rental income was received and also offered to tax for assessment year 2009-10 under the head income from house property followed by proof of rent receipt and property taxes paid. There is no doubt the property is a building which is subject to rental income and assessed under the head House property . The provisions of Section 54 of the Act is clear that when the long term 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 , which the assessee has complied and as a pre-condition of the buyer of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cter of the property has to be treated as residential property as there was a pre-condition to demolish the house property and execute a sale deed, which is disputed by the A.O. but not the investment made by the assessee in new residential house at Coimbatore, costing ₹ 1,08,90,213/- and the possession along with completion certificate issued by the builder on 30.05.2012. Hence, the investment complied the provisions of law and attained the finality. The issue is narrow down to whether the property takes the character of land or house property. The Revenue has raised the grounds before us that the CIT(Appeals) has erred in directing the Assessing Officer to allow exemption to the assessee under Section 54 or alternative claim under S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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