9911796707
TMI Blog2016 (1) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... on 31.08.2009 declaring a total income of Rs. 23,490/-. From the information available from the SRO data, it was noticed that the assesse entered into a joint development agreement with M/s NKP Builders on 5-3-2008. Since, the assesse did not disclose the capital gains from transfer of property, the AO had reason to believe that income chargeable to tax has escaped assessment and had issued notice u/s 148 of the Income tax Act, 1961. In response to notice u/s 148, the assesse vide her letter dated 17-03-2010 had objected the reopening of assessment. The assesse stated that she has given only restrictive right to the builder to construct flats and hand over her share within 24 months from the date of agreement. It is stated that during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sse challenged the validity of reassessment and chargeability of capital gains. She also made an alternative arguments and claimed exemption u/s 54F for entire capital gains. During the appellate proceedings before the CIT(A), assesse made elaborate written arguments and also relied on various judicial precedents in support of her arguments. Regarding, exemption u/s 54F is concerned she had entered into a development agreement with M/s NKP builders for development of 726 Sq. yards of land. As per the said development agreement, in lieu of handing over 50% of land, she got 6250 Sft built up area. The builder has given entire first floor of 3144 sft and 50% of third and fourth floor comprising of 3106 sft. The assesse contended that, she had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the benefit of exemption in view of the Hon'ble Supreme court decision in the case of Goetz (India) Ltd 284 ITR 323. The DR did not opposed the exemption allowed by the CIT(A) on the facts of the case, but he is only opposed the benefit of exemption allowed on the ground that the assesse did not made any claim before the Assessing Officer. On the other hand, the authorized representative strongly supported the CIT(A) order. 4. We have heard the rival contentions, perused the materials available on record and gone through the orders of authorities below. The factual matrix of the case is that the assesse has entered into a development agreement with M/s NKP builders for development of 726 Sq. yards of land. As per the said development agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 323. We have examined the Hon'ble Supreme Court decision mentioned (Supra) in the light of the facts of the present case. Their lordship in the above case in para 4 of the order has observed that the issue in this case is limited to the power of the assessing authority and does not impinge on the power of the Tribunal under section 254 of the Income tax Act, 1961. Therefore, we are of the opinion that the CIT(A) being appellate authority, shall have the power to entertain the claim of any deduction/exemptions based on the facts exists at the time of assessment. In the present case, though assesse did not made any claim before the assessing officer, she has made a claim before CIT(A) with the relevant facts which are exist at the time o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4EB while the word "a" has been used in ss. 54 and 54F. This clearly shows that the legislature intended different meanings to be given to these two words. A close reading of these sections shows that legislature intended to allow exemption in respect of investment in more than one asset by using the word "any". Sec. 54E allows exemption in respect of investment in any specified asset. Expln. 1 to s. 54E defines the "specified asset". It includes various assets in which investment can be made by the assessees who are eligible for exemption under s. 54E. There is nothing to indicate that investment is restricted to any of the specified assets. Had the legislature intended to restrict investment in any one of the specified assets, it would ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove finding. So long as the house purchased is one even after conversion, the exemption would be available. On the other hand, if the investment is made in two independent residential houses, even located in the same complex, then, exemption cannot be allowed for investment in both the houses. However, the choice would be with assessee to avail exemption in respect of any one house. Exemption under ss. 54 and 54F would be allowable in respect of one residential house only. If the assessee has purchased more than one residential house, then the choice would be with assessee to avail the exemption in respect of either of the houses provided the other conditions are fulfilled. However, where more than one unit are purchased which are adjacent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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