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TMI Blog2016 (4) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... le consideration, the ground may become academic. However, we direct the AO to allow cost of indexation as claimed and arrive at the correct capital gains and allow deduction u/s. 54F/54 thereon. - I.T.A. No. 1049/HYD/2014, I.T.A. No. 1053/HYD/2014 - - - Dated:- 29-2-2016 - SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER For The Assessee : Shri K.C. Dev Das, AR For The Revenue : Shri B. Kurmi Naidu, DR ORDER PER B. RAMAKOTAIAH, A.M : These cross-appeals are by Assessee and Revenue on the issue of claim u/s. 54/54F of the Income Tax Act [Act] against the order of the Commissioner of Income Tax (Appeals)-IV, Hyderabad, dated 14-03-2014. We have heard the Ld. DR and Ld. Counsel in detail. 2. The brief facts leading to the present dispute are that assessee had sold two plots on 01-09-2009 and 05-09-2009 for a sale consideration of ₹ 1.90 Crores. As the cost of acquisition of these plots are ₹ 3 Lakhs each (Rs. 6,00,000/-), he has claimed indexed cost of acquisition and arrived at capital gains of ₹ 1,80,45,600/-. Assessee deposited an amount of ₹ 80,00,000/- in capital gains accounts on 30-07-2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the due date u/s. 139(4) is eligible for deduction u/s. 54F? 5.1. With reference to the above grounds, they need not be considered on the simple reason that assessee has deposited ₹ 80,00,000/- on 30-07-2010 as evidenced by the bank a/c (copy placed in Paper Book at page 33). It was wrongly noted as 06-09-2010, so the contention that the amount was deposited u/s. 139(4). Since the amount was deposited within the due date of Section 139(1), the grounds raised by Revenue, on wrong assumptions, have no merits. 5.2. Even otherwise, Ld. CIT(A) has considered the decisions of Hon'ble Punjab and Haryana High Court in the case of CIT Vs. Jagtar Singh Chawla [87 DTR 217] [215 Taxman 154] and various other decisions listed in para 5.5 as under: i. CIT Vs. Jagrit Aggarwal [Taxmann.com (P H)]; ii. CIT Vs. Rajesh Kumar Jalan [286 ITR 274] (Gau); iii. Fatima Bai [32 DTR 243] (Kar)]; iv. RKP Elayarajan Vs. DCIT [52 SOT 159] (Chennai); This view was also supported by the Hon'ble Karnataka High Court in the case of CIT Vs. K. Ramachandra Rao [56 Taxmann.com 163]. In view of the judicial precedents on the subject, we do not see any merit in Revenue s contentions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive of the local authority i.e., AMC and in this regard, the assessee has no control and it is beyond the power of the assessee to make the AMC issue the said Completion/Occupancy certificate before 31.3.2008. What was under the power and control of the assessee was only to move the AMC for completion certificate fulfilling all the requirements with the AMC for issuance of occupancy certificate which the assessee has done in the present case. Thus, the delay in issuing the occupancy certificate cannot be attributed on the part of the assessee to deny the claimed deduction u/s 80-18(10) of the Act on the basis that the project was not completed by 31.03.2008, especially when there is no objection raised by the AMC regarding deviation in the construction of the project approved by the AMC . 5.13 Similar view was also taken in the case of In the case of Satish Bora and Associates (ITA No.713 714/PN/2010, dated 07.01.2011). The decision in the case of Satish Bora Associates was relied upon in the case of R.V. Nirman Ltd (ITA Nos.l03/Hyd/2012 and 262/Hyd/2011, dated 30.10.2012) by the jurisdictional ITAT. 5.14 For the purpose of deciding the present appeal, reference may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... building may be occupied without waiting for the certificate, but information to this effect shall have to be sent to the authority by the owner before occupying the same . 5.16 It is clear from a perusal of sec.455 of the GHMC Act, 1955 and Rule 12 13 of the Hyderabad Revised Building Rules, 2006 that the relevant provisions applicable to Hyderabad and the appellant are similar to those of Pune which were taken note of in the case of Satish Bora and Associates: a. There is no concept of issue of completion certificate by the Municipal Authorities. Only an occupancy certificate is required to be issued .. b. The Municipal Laws/Rules specify a period of 21 days for the Municipal Authorities to process the application for issue of occupancy certificate. c. After the lapse of 21 days, the occupancy certificate can be presumed to have been issued. 5.17 It follows from the facts of the present case that the appellant having applied for issue of occupancy certificate on 10.8.2012, can be deemed under the relevant Laws/Rules to have received the certificate on 31.8.2012 (i.e. after 21 days) which is before the specified date u/s. 54. 5.18 The decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case, assessee has purchased a semi-finished house and completed construction before the three years period as prescribed. Revenue has not cited or placed on record any contrary judgment. Therefore, respectfully following the ratio laid down by the Hon'ble Karnataka High Court in the case of CIT Vs. K. Ramachandra Rao [56 Taxmann.com 163], we direct the AO to allow the capital gains exemption as claimed. 6.5. Ground No. 2 is on the claim of cost of acquisition. AO as stated earlier has not considered the cost of acquisition or indexation and brought the entire sale consideration to tax. Before the Ld. CIT(A), additional evidence in the form of purchase deeds were filed. Ld. CIT(A) failed to adjudicate the ground. We notice that assessee is entitled to cost of indexation as claimed as a deduction while computing the capital gains. Even otherwise, since assessee s investment in new house is more than the sale consideration, the ground may become academic. However, we direct the AO to allow cost of indexation as claimed and arrive at the correct capital gains and allow deduction u/s. 54F/54 thereon. 7. In the result, assessee s appeal in ITA No. 1049/Hyd/2014 is allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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