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TMI Blog2016 (4) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... n Chennai, one commercial flat in Chennai, from out of both of which, he was deriving a total income of ₹ 4,25,131/-. He also had a land in Neelankarai which was sold and a house property was purchased in Kodaikanal. Under Section 22 of the Act, any income from any buildings, irrespective of which the use which has to be treated under the head "income from house property". Therefore, the Revenue cannot take above all the terminology use in clause (b) under the proviso. This is a mistake into which the Revenue has fallen to treat the case of the assessee as falling within the purview of the proviso. The facts of the case as narrated in the order of assessment would show that the assessee did not own more than one residential hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Section 54F a d therefore no deduction can be granted u/s 54F? 2. We have heard Mr.M.Swaminathan, learned Standing Counsel for the Department and Dr.Anita Sumanth, learned counsel appearing for the respondent/assessee. 3. The Respondent/Assessee filed his Return of Income on 4.11.2009 for the Assessment Year 2009-10. The case was selected for scrutiny and notice was issued. 4. It was found that the assessee made cash deposits of ₹ 66,50,000/- at Indian Bank at various dates. When questioned, the assessee explained that the cash represented the sale proceeds of a land owned by him at Neelankarai. The total sale consideration was ₹ 1,14,88,000/-. The assessee claimed that the entire sale consideration was invested in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Under the substantive part of Section 54F(1), the capital gain arising from the transfer of any long term capital asset, not being a residential house, shall not be subjected to the taxation provisions, if the assessee had within the period of one year before or two years after the date on which the transfer took place, purchased a residential house. Alternatively he should have constructed one residential house in India within a period of three years. If these conditions are satisfied, the capital gain will be dealt with in accordance with Clauses (a) and (b) of sub-section (1) of Section 54F of the Act. 10. There is no dispute about the fact that the assessee in this case made a transfer of a long term capital asset it which not a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the original asset, the whole of such capital gain shall not be charged under section 45 ; (b) if the cost of the new asset is less than the net consideration in respect of the original asset, so much of the capital gain as bears to the whole of the capital gain the same proportion as the cost of the new asset bears to the net consideration, shall not be charged under section 45: [Provided that nothing contained in this subsection shall apply where- (a) the assessee,- (i) owns more than one residential house, other than the new asset, on the date of transfer of the original asset; or (ii) purchases any residential house, other than the new asset, within a period of one year after the date of transfer of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome from a commercial property that was treated as income from house property. To be precise, the assessee had one residential house in Chennai, one commercial flat in Chennai, from out of both of which, he was deriving a total income of ₹ 4,25,131/-. He also had a land in Neelankarai which was sold and a house property was purchased in Kodaikanal. 15. Under Section 22 of the Act, any income from any buildings, irrespective of which the use which has to be treated under the head income from house property . Therefore, the Revenue cannot take above all the terminology use in clause (b) under the proviso. This is a mistake into which the Revenue has fallen to treat the case of the assessee as falling within the purview of the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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