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TMI Blog2018 (2) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... e uphold the same and reject the grounds raised by the Revenue. - I.T.A. No. 6868/DEL/2015 - - - Dated:- 7-2-2018 - Shri H. S. Sidhu, Judicial Member And Shri Prashant Maharishi, Accountant Member Department by : Ms. Ashima Neb, Sr. DR Assessee by : Sh. Satyen Sethi, Adv. Sh. Suresh Chawla, CA ORDER Per H. S. Sidhu, JM This appeal by the Revenue is directed against the Order of the Ld. Commissioner of Income Tax (Appeals)-21, New Delhi dated 16.10.2015 pertaining to assessment year 2012-13 on the following grounds:- 1. Whether, the Ld. CIT(A), on the facts and circumstances of the case and also in law, has erred in deleting the addition of ₹ 1,44,14,836/- made by the AO on account of Long Term Capital Gai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO, the impugned purchase of new house was not made within the period of one year before the sale of asset against which claim u/s. 54 of the Act has been made by the assessee. Accordingly, the deduction u/s. 54 of the Act was disallowed and assessment was completed at total income of ₹ 1,44,14,836/-. Aggrieved with the assessment order, the assessee appealed before the Ld. CIT(A), who vide his impugned order 16.10.2015 has allowed the deduction u/s. 54 of the Act and allowed the appeal of the assessee. 3. Aggrieved with the impugned order, the Revenue is in appeal before the Tribunal. 4. At the time of hearing, Ld. DR relied upon the order passed by the AO and reiterated the contentions raised by the Revenue in the grounds o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons are given as below:- Application for booking of flat 27th August, 2010 Buyer's Apartment-Agreement 2nd December, 2010 Sale of Flat 11th November, 2011 Completion of the flat by the builder August, 2014 Handing over the possession of the flat 28th August, 2014 Based on the above facts the AO treated the agreement between the assessee and the builder as aqreement for purchase of flat and according to him it was not a case of construction of flat. The date of filing of application with the builder, Le. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strongly pleaded that the assessee is entitled to claim deduction u/s 54. It is also argued that the amount paid to the builder towards purchase of flat is to be considered as construction of the flat and not purchase of the house. As such, cost of flat was due to be paid over a period of three years from the date of signing of builder buyer agreement and the possession was also to be handed over before three years from date of transfer of capital asset. Based on the above argument the appellant has contended that since he got the house constructed by entering into, 'Builder Buyer Agreement', the period of three years is available to the assessee for completion of such construction from the date of transfer of capital. asset. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the private developers are also covered by Circular No.471 672 and, therefore, entitled for deduction u/s. 54. The moot question is whether the agreement with builder to purchase a flat that is going to be constructed, is the case of purchase or construction. In this regard Hon'ble High Court of Mumbai in the case of Hilla J.B. Vadia 216 ITR 376 held that it is a case construction. Further, on identical question, i.e. whether the booking of flat with the builder is to be considered a case of purchase or construction was considered by Mumbai bench of Tribunal in the case of ACIT vs. Sardar Kaur Sujan Singh and it was held to be a case of construction. In recent judgment in the case of CIT vs Bindra Kumar (2001) 114 taxman 266 H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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