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TMI Blog2019 (9) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... the proof of payment of consideration is complete when it is coupled with the above mentioned evidences to prove the title on property and consequently possession thereon. We deem it proper to remand the matter to the file of AO with a liberty to the assessee to file such documents showing transfer of right over such flat in respect of his claim u/s 54 by holding the assessee is entitled to get deduction u/s 54 subject to showing proof of sale deed etc. in favour of him relating to the said flat as reflected in the MOU dated 16.07.2012. AO shall examine the same and pass order in accordance with law. Thus Ground No.1 raised by the assessee is allowed for statistical purposes. - I.T.A No.518/Kol/2017 - - - Dated:- 7-8-2019 - Shri P. M. Jagtap, Vice President And Shri S.S. Viswanethra Ravi, Judicial Member For the Appellant: Shri J.P. Khaitan And G. Banergy, FCA For the Respondent: Shri C. J. Singh, JCIT, Sr. DR ORDER Shri S.S. Viswanethra Ravi, JM: This appeal by the assessee against the order dated 19.01.2016 passed by the Commissioner of Income Tax (Appeals), Durgapur [ CIT(A) ] fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: It is pertinent to mention here that on the date of agreement the appellant never ensure the time of delivery or the status of the construction and its completion. The time limit prescribed in the Act for 54F and MOU was never adhered too. It is also seen that clause mentions in the MOU were never adhere too. The only argument of the appellant during the appellate proceedings is that the substantial payment has been made within two years, therefore he deserves for exemption is not with the spirit of the provision of section 54F. It is further to pointed out that the observation of the A.O. regarding completion of the building has not been controverted. The A.O. observed that only 39% of the full value of the construction has been paid against the proposed purchase of property. It is also seen that the flat proposed to be purchased is having multiple units which cannot be said to be a house . The appellant also failed to substantiate that the delay in possession was not attributable by the appellant and it was beyond control of the appellant. It is also seen that the agreement for purchase of proposed flat is made unilaterally without any mutual liability c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 2,00,75,000/- and 1,06,75,000/- respectively. Therefore the capital gain of ₹ 1,07,06,885/- determined by the Assessing Officer taking into consideration the index cost, improvement and expenses relating to transfer and the assessee claimed deduction u/s 54 of the Act claiming the capital gain arising out of selling of his property in Durgapur having invested fully in the new asset being value of ₹ 2,0075,000/- within two years from the date of sanction plan. 6. According to Assessing Officer, the assessee did not submit the purchase deed in the assessment proceedings and the CIT(A) confirmed the view of Assessing Officer by observing that the assessee could not file the break-up of the two flats in the first appellate proceedings. As discussed above, before us the assessee has given the break-up of the two flats i.e. the total consideration for flat having super built-up area at ₹ 2,00,75,000/- and 1,06,75,000/- for flat having approximate super built-up area of ₹ 1,200 sq. ft. So there is no dispute about the observation of CIT(A) that there was no break-up given by the assessee. 7. Coming to the observation of Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin stipulated period of three years, when there is no title and possession as required by the Statute to the assessee, the deduction u/s 54 is not permissible. Further he referred to the order of Hyderabad Tribunal in the case of Mahesh Malneedi vs. ITO reported in [2018] 90 taxmann.com 171 (Hyderabad Trib.) and submitted that there is no proof of sale furnished by the assessee before all the authorities including this Tribunal and there is no proof showing that the completion of flat before the authorities, when there is no such evidence, the deduction u/s 54 is not available. 12. Further he placed reliance in the case of Yashovardhan Sinha v. ITO reported in [2016] 65 taxmann.com 31 (Patna Trib.) and submitted that the assessee claimed to have entered into MOU on 16.07.12 and the assessee must have got possession of said flat within three years but no such completion proof was filed before this Tribunal. The Assessing Officer entrusted inspection of said building to the Income Tax Inspector for verification of status of construction of said building. He referred to Inspector s report placed at Page No.103 of Paper Book and submitted the report filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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