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TMI Blog2018 (12) TMI 1584X X X X Extracts X X X X X X X X Extracts X X X X ..... to the investment done within the specified periods of one year prior to the date of sale of original assets to the three years from the date of sale of shares. Moreover the claim within the capital gains earned by the assessee. Hence the assessee would be entitled for deduction u/s 54F for the entire amount claimed. - Decided in favour of assessee. - ITA No. 1452/DEL/2016 - - - Dated:- 21-12-2018 - Shri H.S. Sidhu, Judicial Member And Shri L.P. Sahu, Accountant Member For the Assessee : Shri Arvind Kumar, Adv. And Ms. Sudha Gupta, CA For the Revenue : Shri Sanjay Goel, CIT(DR) ORDER PER H.S. SIDHU, JM The Assessee has filed this Appeal against the Order dated 13.1.2016 of the Ld. Commissioner of Income Tax (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. 6. That on the facts and circumstances of the case, the AO has erred both in facts and inl aw in charging interest under section 234B and 234C of the Act. The above grounds of appeal are mutually exclusive and without prejudice to each other. The appellant craves leave to add, alter, amend, vary or rescind any of the above grounds either before or at the time of hearing in the interest of natural justice. 2. The brief facts of the case are that the assessee is a medical practitioner who has filed his return of income on 30/07/2011 which was subsequently revised on 05/11/2011. The assesee had earned Capital gain to the tune of ₹ 29,09,60,100/- on 14/09/2010 in the previous year relevant to the assessment year un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent at the time of application is mentioned. The possession of the said flat was taken on 21.01.2013. According to him the artificial water tight compartment / pigeon hole construction of the provision created by the AO and endorsed by the CIT(A) on different time limits for purchase and construction should not be made applicable for interpreting a beneficial piece of legislation enacted with the object of promoting investment in residential house in India by an individual / HUF. As per him in facts of a given case there can be only purchase of residential house or construction of a residential house and therefore in facts of such cases the time framed prescribed u/s 54F would be applicable but at the same time there is no specific debarmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 41 taxmann.com 50 Delhi Commissioner of Income Tax, Bangalore vs. Smt. B.S. Shanthkumari 60 taxmann.com 74 Karnataka RustomHomiVakil vs. Assistant Commissioner of Income (69 taxmann.com 42 ) ITAT Mumbai 3.1 In reply the CIT DR basically relied on the orders of the lower authorities. He emphasized the need to read the two limbs of Section 54F separately i.e. the time limit for purchase and for construction ,for any harmonious understanding of the section . He also laid emphasis on the fact that the agreement talks of semifinished apartments and therefore any investment thereto is in the nature of the construction contract. He relied on the CBDT circular 672 dt 16th dec 1993,quoted by the the A.O in the order, which woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the end of F.Y 2012-13. According to him mere mention of the word sale in the agreement with the builder does not lead to the inference of purchase, when the entire sequence of the events proves that it is construction of flat. The CIT upheld the contention of the A.O holding that the interpretation of the A.O is justified with respect to the time limits for purchase and construction of new house and holding the transaction in question as construction. It is noted that in acquiring a residential property, while there could be straight purchase or construction scenerios , but most likely there would invariably be the combination of elements of purchase and construction. In this case the assessee has entered into an agreement dated 19/01/2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the sale of old asset on which the capital again accrued, which will even otherwise take care of the restrictive interpretation of the lower Authorities. 4.2 Similar view was taken by the jurisdictional high court in the case of CITvsBharti Mishra (Supra). 4.3 Hence considering the totality of circumstances it is clear that in transacting with M/s DLF universal ltd. for acquiring the flat(s) in question, the assesee has entered into both types of agreement i.e.both purchase and construction and both these are essentially running concomittantly. And the claim for the deduction has been restricted by the assesee to the investment done within the specified periods of one year prior to the date of sale of original assets to the three y ..... X X X X Extracts X X X X X X X X Extracts X X X X
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