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TMI Blog2021 (1) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from the builder as per the JDA dated 28.04.2008. - ITA No. 1351/Bang/2019 - - - Dated:- 6-1-2021 - Shri Chandra Poojari, AM And Shri George George K, JM Appellant by : Sri.Ashok A.Kulkarni, Advocate Respondent by : Ms.Neera Malhotra, CIT-DR ORDER Per George George K, JM This appeal at the instance of the assessee is directed against CIT(A) s order dated 28.03.2019. The relevant assessment year is 2009-2010. 2. The brief facts of the case are as follow: The assessee, an individual, admitted Long Term Capital Gains (LTCG) arising from Joint Development Agreement (JDA) amounting to ₹ 74,09,736 for the assessment year 2012- 2013, in respect of the shares of 35.35% of immovable property at Lavelle Ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee submitted that there is no transfer in the assessment year 2009-2010. 4. However, the Assessing Officer rejected the objections raised by the assessee and brought to tax the long term capital gains in the year of execution of JDA, for the following reasons:- (i) Irrevocable authority and empowerment to the developer for constructing residential apartment. (ii) Execution of power of attorney to enable the developer to apply for and secure plans and licenses. (iii) Authority to developer to make additions, deletions and alterations in the plans submitted. (iv) Parties entitlement to allotted built up area as per agreed ratio and proportionate undivided share, right, title and interest in the immovable property and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Aggrieved by the order of the Assessing Officer, the assessee preferred an appeal to the first appellate authority. Before the first appellate authority the assessee raised objections with regard to the reopening of assessment, the year of taxability of long term capital gains and also with regard to the claim of deduction u/s 54 of the I.T.Act in respect of the entire built-up area received from the builder as per the JDA. The CIT(A) rejected all the contentions of the assessee. As regards to the claim of deduction u/s 54 of the I.T.Act, the CIT(A) followed the Special Bench order of the Tribunal in the case of CIT v. Sushila M. Jhaveri [(2007) 107 ITD 327 (Mum.)] and rejected the claim of the assessee that he is entitled to benefit u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r flats are situated in a residential building. The Hon ble Court held that the four flats constitute 'a residential house' for the purpose of deduction u/s 54 of the I.T.Act. In that view of the matter, the Hon ble Court concluded that the Tribunal as well as the appellate authority were justified in holding that there is no liability to pay Capital Gains tax as the case squarely falls under sec. 54 of the Income Tax Act, 1961. 9.1 The Hon'ble Madras High Court in the case of CIT Vs. Smt. V.R Karpagam reported in 373 ITR 127 (Mad.) on identical facts have decided the issue of deduction u/s 54F of the I.T.Act for five flats in favour of the assessee. The assessee in the case of V.R.Karpagam (supra) entered into an agreement w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jain reported in 394 ITR 666 (Mad.) 9.2 In the present case, all the flats for which the assessee is claiming exemption u/s 54 of the I.T.Act are situated in the same premises. Therefore, the judgment rendered in the case of Smt.K.G.Rukminiamma (supra) will squarely apply. In the light of the above judicial pronouncements on identical facts, we are of the view that the assessee is entitled to deduction u/s 54 of the I.T.Act on the entire built-up area received from the builder as per the JDA dated 28.04.2008. Since we have decided the issue of claim of deduction u/s 54 of the I.T.Act, in favour of the assessee, the other issues raised by the assessee in the grounds of appeal are not adjudicated. It is ordered accordingly. 10. In the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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