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TMI Blog2007 (4) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... of this court "(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in allowing the benefits of section 54F to an assessee who owned another residential house on the date of (ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in allowing the benefits of section 54F even if the transfer is not evidenced by a registered deed ? 2. The assessee had sold his plot of land for Rs. 11,32,625 and claim exemption under section 54F of the Act in respect of purchase of residential flat at 7, Chetak Vihar, Race Course Road, Indore, on Rs. 3,50,000 and in addition to this exemption, Rs. 25,000 had also been claimed in respect of expected investments in the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal for making reference of the two questions stated in paragraph 3 of the statement of the case, but the Tribunal, on the facts and circumstances of the case, has held that such question did not arise out of the order passed by the Income-tax Appellate Tribunal. 6 On further reference to this court under section 256(2) of the Act, the Tribunal was directed to refer the said questions along with the statement of the case. It is in this background that the Tribunal has forwarded this reference for opinion of this Court on the questions stated hereinabove. 7 Learned counsel for the respondent-assessee has vehemently argued that at the time asset was acquired, the as did not possess any residential house and the Tribunal has observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereafter in this section referred to as the new asset), the capital gain shall be dealt with in accordance with the following provisions of this section, that is to say,— (a) if the cost of the new asset is not less than the net consideration in respect of 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 sub-section shall apply where — (a) the assessee,— (i) owns mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts of the case. The assessee shall be free to agitate the matter before the appropriate authority, but in so far as the question as formulated is concerned, we are of the view that if a person had already a residential house, he cannot be allowed exemption to the extent of amount spent on acquisition of a new asset. 11. In so far as question No. 2 is concerned, learned counsel for the ii respondent has relied on the decision of this court in Smt. Shashi Varma v. CIT [1997] 224 ITR 106. In the said judgment, it was averred that the assessee sold her property at Jabalpur and realised capital gains of Rs. 31,980 out of which she invested a sum of Rs. 71,256 and purchased a house at Delhi. The exemption was claimed from the charge of tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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