9911796707
TMI Blog2019 (4) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... ature of certain capital gains earned by the assessee - HELD THAT:- Assessee has made the payment within stipulated time as envisaged by Section 54F and the allotment in a specific property has been obtained by the assessee on 14/04/2012 which is evident from allotment letter. Therefore, since all the conditions of Section 54F was fulfilled by the assessee, there could be no occasion to deny the benefit of deduction to the assessee. Therefore, no infirmity could be found in the impugned order. - Decided against revenue. - I.T.A. No.6710/Mum/2017 - - - Dated:- 2-4-2019 - Shri Saktijit Dey, JM And Shri Manoj Kumar Aggarwal, AM For the Appellant : Manoj Kumar Singh-Ld. DR For the Respondent : V. Chandrashekhar and Harshad Shah-Ld.ARs. ORDER PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER):- 1. Aforesaid appeal by revenue for Assessment Year [in short referred to as AY ] 2013-14 contest the order of Ld. Commissioner of Income-Tax (Appeals)-37, Mumbai, [in short referred to as CIT(A) ], Appeal No. CIT(A)- 37/IT-886/ACIT-25(2)/15-16 dated 27/09/2017 on following grounds of appeals: - 1. On the facts and in the circumstances of the case and in law, the Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that a right or an interest in an immovable property can accrue to a buyer only by way of an agreement. 7. The appellant prays that the order of the CIT(A) on the above grounds be set aside and that of the Assessing Officer be restored. 2.1 Facts in brief are that the assessee being resident individual was assessed in scrutiny assessment u/s 143(3) for impugned AY on 12/02/2016 wherein the assessee s income was determined at ₹ 401.78 Lacs after certain adjustments as against returned income of ₹ 185.33 Lacs filed by the assessee on 31/07/2013. As evident from grounds of appeal, the subject matter of present appeal is to determine the nature of certain capital gains earned by the assessee in the impugned AY and the assessee s eligibility to claim deduction u/s 54F. 2.2 During assessment proceedings, it transpired that the assessee sold a duplex apartment Flat No.1201 with 4 car parking in the building Natura of Tapovan Cooperative Society Ltd., Santa Cruz (W), Mumbai [flat] on 04/04/2012 for a sale consideration of ₹ 1200 Lacs, the assessee s share being 50% in the same. The assessee after adjusting the indexed cost of acquisition worke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he purchaser and the payment of instalment as well as delivery of possession was mere formality. Reliance was placed on CBDT circular No. 471 672 to draw the said conclusion. The ratio of the following judicial pronouncement was also considered while forming such an opinion: - No. Case Law Judicial Authority Citation 1. Vinod Kumar Jain Vs. Ld. CIT Hon ble Punjab Haryana High Court 244 CTR 346 2. Sanjeev Lall Vs CIT Hon ble Supreme Court 365 ITR 389 3. CIT Vs. Vijay Flexible Containers Hon ble Bombay High Court 186 ITR 693 4. CIT Vs Ram Gopal Hon ble Delhi High Court ITA 70/2015 09/02/2015 5. Snehabimal Vs PCIT Mumbai Tribunal ITA 5489/M/2015 6. Seeta Prabhu Vs ITO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are Feets terrace measuring 881.5 Square Feets as per the attached layout plan along with 4 car parking in building known as Tapovan vide Allotment Letter dated 26/02/2008 issued by DSD Builders Developers Pvt. Ltd. for total consideration of ₹ 371 Lacs. The said allotment is not a conditional allotment and do not envisages cancellation of the allotted property, in any manner. Therefore, the assessee has acquired right in a specific property which is clearly earmarked in the layout plan. The full payment of the same has been made by the assessee by 24/07/2008 which is evident from assessee s letter containing payment details as placed on page no. 4 of the paper-book. Subsequently, agreement of sale has been executed by the builder in assessee s favor on 25/03/2010 which was nothing but mere improvement in assessee s existing rights to acquire a specific property and part parcel of the same transaction. This being the case, the case laws being relied upon by the revenue do not apply to the factual matrix of the case and therefore, rightly, distinguished by the Ld. first appellate authority. 5.2 We find that the factual matrix of the present case is squarely c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16th December, 1993. In such circular representations were made to the board that in cases of allotment of flats or houses by co-operative societies or other institutions whose schemes of allotment and consideration are similar to those of D.D.A., similar view should be taken as was done in the board circular dated 15th October, 1986. In the circular dated 16th December, 1993 the board clarified as under: 2. The Board has considered the matter and has decided that if the terms of the schemes of allotment and construction of flats/houses by the co-operative societies or other institutions are similar to those mentioned in para 2 of Board's Circular No.471, dated 15-10-1986, such cases may also be treated as cases of construction for the purposes of sections 54 and 54F of the Income-tax Act. It can thus be seen that the entire issue was clarified by the CBDT in its above mentioned two circulars dated 15th October, 1986 and 16th December, 1993. In terms of such clarifications, the date of allotment would be the date on which the purchaser of a residential unit can be stated to have acquired the property. There is nothing on record to suggest that the allotment in construc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
