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TMI Blog2016 (9) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion that the assessee is not eligible for exemption u/s. 54F of the Act for construction of swimming pool and we uphold the order of the Commissioner of Income Tax (Appeals) - Decided against assessee - I.T.A. No. 1123/Mds/2016 - - - Dated:- 27-7-2016 - SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI. G. PAVAN KUMAR, JUDICIAL MEMBER For The Appellant : Shri. G. Baskar, Advocate For The Respondent : Shri. P. Radhakrishanan, IRS ORDER PER G. PAVAN KUMAR, JUDICIAL MEMBER: The appeal filed by the assessee is directed against order of the Commissioner of Income-tax (Appeals)-2, Chennai in ITA No.246/CIT(A)-2/13-14, dated 21.01.2016 for the assessment year 2010-2011 passed u/s.143(3) and 250 of the Income Tax Act, 1961 (herein after referred to as the Act ). 2. The assessee has raised the following grounds of appeal:- 2 .1 The Commissioner of Income-Tax (Appeals) erred in confirming the action of the Assessing Officer in denying claim for exemption u/s. 54F of the IT Act. 2.2 The Commissioner of Income-Tax (Appeals) failed to note that what had been acquired by the assessee is a residential property and as such exemption u/s.54F is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 139(1) of the Act. The ld. Assessing Officer relied on the provisions of Sec. 54(1) (2) of the Act and the conditions stipulated were the assessee has to purchase a new asset one year before or two years after transfer of sale of original asset or should have constructed the residential property within a period of three years. The ld. Assessing Officer found that the assessee has not invested in Capital Gains Investment Scheme. The ld. Authorised Representative explained that the assessee paid the purchase consideration in the year 2007 and took possession of property after Registration of sale deed on 24.09.2010 and compiled the provisions u/s.53A of the Transfer of Property Act, 1882. The ld. Assessing Officer found that the assessee has completed the transaction of purchase of property by paying entire purchase consideration in the year 2007-08 and assessee has constructed swimming pool during August, 2009 to January, 2010 on the land purchased. The ld. Assessing Officer applied the provisions of Sec. 54(1) of the Act and analyised the facts were the Actual transfer on sale of Residential House property at Valsaravakkam was on 24.09.2009 and one year prior to date of transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 8 and concluded that since the assessee has invested in purchase of piece of land adjacent to the existing House property and as per the assessee s own submissions constructed lawn and outdoor swimming pool by utilizing the sale proceeds. The definition of House property cannot be equated to a swimming pool for Habitation purpose and since the assessee has not complied the conditions of Sec. 54 of the Act and the ld. Commissioner of Income Tax (Appeals) concurred with the findings of the ld. Assessing Officer and dismissed the appeal. Aggrieved by the Commissioner of Income Tax (Appeals) order, the assessee assailed an appeal before Tribunal. 5. Before us, the ld. Authorised Representative of assessee argued that Commissioner of Income Tax (Appeals) has erred in confirming the findings of the ld. Assessing Officer irrespective of submission of evidence and the assessee is eligible for exemption of residential house as the sale proceeds were utilized. The ld. Authorised Representative explained that it is a continuous process of construction on the plot of residential house and being part of land apparent to building takes the character of a residential house and relied on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) if the amount of the capital gain is equal to or less than the cost of the new asset, the capital gain shall not be charged under section 45; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase or construction, as the case may be, the cost shall be reduced by the amount of the capital gain . On perusal of the definitions and the facts of the case stated hereunder:- 01 Date of sale of Residential Property. : 24.09.2009 02 Due date of filing of Return of Income u/s.139(1) of the Act : 30.09.2010 03 Conditions as per Sec. 54 of the Act : (i) One year prior to date of sale of original asset, the assessee should invest in residential property : 25.09.2008 (ii) Assessee invested in property and constructed Residential house within three years from the date of transf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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