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TMI Blog2018 (5) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee on the basis of date of possession of the flat when the balance consideration was paid. Thus the relevant date for the purpose of section 54 of the Act was 13.12.2011 when the petitioner paid final consideration amount on the flat and the possession was taken. - Decided against revenue - ITA No.5857/M/2016 - - - Dated:- 14-5-2018 - SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER For The Assessee : Shri Saurabh V. Bhat, A.R. For The Revenue : Shri Saurabh Kumar Rai, D.R. ORDER Per Rajesh Kumar, Accountant Member: The present appeal has been preferred by the Revenue against the order dated 28.07.2016 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the return of income. The AO, during the course of assessment proceedings, observed that the assessee claimed deduction of ₹ 1,00,25,000/- in respect of property which was booked on 23.09.20 and registered on 21.10.2008 but the construction whereof was completed on 13.12.2011. The AO noted that the entire payment was not made between 21.10.2008 to 21.10.2011. Thus according to the AO substantial payments were made beyond three years from the date of sale. Accordingly a show cause notice was issued to the assessee as to how the assessee was eligible under section 54 of the Act when the substantial part of the payments to the tune of ₹ 69,63,850/- was made on or before 21.10.08 which was replied by the assessee submitting that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a period of 3 years... Then instead of the capital gain being charged to income tax as income of the previous year in which the transfer took place, it shall be dealt with in accordance with the following provisions From the present facts it can be seen that the property has been sold in the current financial year i.e. the period 1 April 2011-31 March 2012. In terms of the new property which has been purchased, the said property has been completed in October 2011. The mere fact that some of the payments have been made in the financial year 2008-09 would not take away from the taxpayers onus having been completed in terms of the conditions laid down in section 54. As the courts have held in various decisions the provisions of exemption are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as wrongly allowed by the Ld. CIT(A). The Ld. D.R. finally prayed that the order of AO be restored by allowing the appeal of the Revenue. 7. The Ld. A.R. submitted that the Ld. CIT(A) has considered all the details concerning the sale and purchase of properties in question and after carrying out the detailed and necessary verification, the exemption under section 54 of the Act was allowed. The Ld. A.R. brought to the notice of the Bench the date of sale i.e. 12.13.2012 a copy of which was placed in the paper book at page No.6 to 20 and also submitted that the construction of the property in which the assessee invested the money was completed on 13.12.2011. The Ld. A.R. submitted that the property in the present case was booked on 23.09.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of property booked on 23.09.2008 and registered on 21.10.2008 and payment of ₹ 69,63,850/- was also made whereas the construction of the property was completed on 13.12.2011. The possession was taken on that date and the remaining payment was also made simultaneously. The issue before us is whether the date of purchase of property completed on 13.12.2011 falls within a period of one year from the date of sale is covered under the provision of section 54 of the Act. An identical issue came up for hearing before the Hon ble Bombay High Court in the case of the CIT vs. Smt. Beena K. Jain (supra) wherein the Hon ble Bombay High Court has held that the Tribunal is justified in granting exemption to the assessee on the basis of date of poss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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