9911796707
TMI Blog2020 (5) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... earned CIT(A) erred in confirming denial of exemption of long term capital gains of Rs. 2,66,82,5267- u/s 54F of the Act although all the conditions of section 54F were complied by the appellant. 2.2 The Learned CIT(A) failed to appreciate the submission of your appellant that your appellant was not 'owner' of the residential houses within the meaning of sub-clause (ij of clause (a) of proviso to section 54F of the Act and consequently, erred in denying exemption of the long term capital gain referred to above. Without prejudice to the foregoing ground of appeal, the Learned CIT(A) failed to appreciate the submission of your appellant that the residential houses were jointly held with other person and accordingly, as per the judgment of the Hon'ble Madras High Court in the case of Smt. P.K. Vasanthi Rangarajan (23 taxmann.com 299) cited before her; the exemption u/s 54F of Rs. 2,66,82,526/- claimed by your appellant could not have be denied." 2. The brief facts of the case are that the assessee is an individual. The assessee declared his total income at Rs. 43,19,257/- for relevant assessment year. In the computation of income the assessee computed long term capita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal. 4. We have heard the submission of the learned authorised representative (ld.AR) of the assessee and the learned departmental representative (ld. DR) for the revenue and perused the material available on record. The Ld.AR of the assessee submits that assessee being an individual, earned long term capital gain along with his minor children Aditya and Natisha on sale of equity shares of a private limited company. The ld. AR for the assessee explained the details of asset wise LTCG on sale of equity shares and mutual funds and sale of house property. Particulars Assessee A) AY No. of shares Amounts Rs. Date of acquisition From AY 1987-88 to 1995-96 126000 9,73,9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding 2 years 2 years Benefits claimed u/s 54F (investment in CGAS) 40,966/- 31954/- 72,920/- Benefit u/s 54F disallowed 40,966/- 31,954/- 72,920/- C- LTCG on sale of house property by assessee; Particulars Juniper flat Flat 1601 Mayflower flats - 1601/1602 Total Date of purchase 15.10.2007 (AY-2008-09) 16.12.2007 (AY-2008-09) Date of occupation certificate 22.07.2009 22.07.2009 Date sale 06.12.2012 01.12.2012 Period oh holding 5 years 5 years LTCG 25,41,264/- 34,99,372/- 60,40,636/- Benefit u/s 54 claimed and allowed 25,41,264/- 34,99,372/- 60.40,636/- 5. In view of the aforesaid explained facts the ld. AR for the assessee explained that the assessee and minors invested the capital gain in the capital gain account scheme for availing exemption u/s 54F. Accordingly, minors, viz. Aditya and Natisha have no income chargeable to capital gain in view of the investment in capital gain account scheme. 6. The Ld.AR submits that as per definition of income u/s 2(24)(vi), capital gain is defined as "capital gain chargeable u/s 45". Section 45(1) of the Act which is a charging section exclude the charge of capita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s earned by minors were invested in CGAS. We have further noted that after the investment made by minor children u/s 54F left no chargeable capital gain which could be clubbed u/s 64(1A) in hands of assessee. 9. The coordinate bench of Kolkata Tribunal in Rajeev Goyal (supra) held that in case of clubbing of income of minors child, deduction u/s 54EC is to be allowed on minors' income from LTCG separately and only net income is to be clubbed. In Madan Lal Bassi (supra), Chandigarh bench of Tribunal also held that under section 45(1), any profits or gains arising from the transfer of a capital asset are chargeable to income-tax. Save as otherwise provided in various sections including section 54F. In other words, if section 54F is applied, only the amount of capital gains found taxable after application of above provisions can be charged to income-tax. Therefore, to find out whether there is any profit or gain chargeable to tax under section 45(1), the provisions of both the sections are to be read together. Section 54F cannot be read in isolation. Considering the aforesaid decisions of the Tribunal the AO / CIT(A) was not justified in denying the exemption of capital gain to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission, the Ld. DR for the revenue relied upon the decision of Hyderabad Tribunal in Apsara Bhavana Sai (148 ITD 658). To support the clubbing of income of assessee with minors relied upon the decision of Yogi Aggarwal (96 ITD 288). 13. In the rejoinder submission, the Ld.AR of the assessee submitted that the decisions relied upon by Ld. DR for the revenue in Apsara Bhavana Sai (supra) is of non-jurisdictional Tribunal, while the assessee has relied on the decision of jurisdictional Tribunal in Rasiklal Satara (supra), Ashok Chouhan (supra) and Hon'ble Madras High Court in Vasanti Rangarajan (supra), therefore, in view of the decision of Hon'ble Madras High Court in Vasanti Rangarajan (supra), the reliance by ld. DR is not a good law. On the decision of Yogi Aggarwal relied by ld. DR, the ld. AR of assessee submits that this decision is completely distinguishable on fact. Similarly, the facts in Subhash Chandra Wadhwa relied by ld. DR for the revenue is not based on the exemption provision like 54F under consideration, rather relates to deduction of Chapter-VI of section 80L or 80I are not applicable on the facts of the case of assessee. 14. We have considered the rival submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
