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TMI Blog1987 (11) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... peal filed by the assessee an entirely new plea for the first time to sustain an assessment on the capital gains derived on the sale of the assessee's residential house ? 2. Whether, in any event, and on the facts and in the circumstances of the case, the capital gain derived on the sale of the assessee's residential house is exempt under section 54 of the Income-tax Act, 1961 ? " The relevant facts are that the assessee is a Hindu undivided family. It owned a house at Nellore which was an ancestral property, which it sold for a sum of Rs. 1,65,000 in the year 1975. In the assessment proceedings for the assessment year 1976-77, the assessee claimed exemption in respect of the capital gain arising from the sale of the above property under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income-tax Act reads thus: " Where a capital gain arises from the transfer of a capital asset to which the provisions of section 53 are not applicable, being buildings or lands appurtenant thereto the income of which is chargeable under the head 'Income from house property', which in the two years immediately preceding the date on which the transfer took place, was being used by the assessee or a parent of his mainly for the purposes of his own or the parent's own residence, and the assessee has within a period of one year before or after that date purchased, or has within a period of two years after that date constructed, a house property for the purposes of his own residence, then, instead of the capital gain being charged to Income- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position was not challenged by learned counsel for the assessee. However, learned counsel contended that the assessee should now be allowed to raise the contention that half the interest in the said house is the separate property of the karta of the Hindu undivided family inasmuch it had devolved upon him on the death of his father under section 8 of the Hindu Succession Act. It is pointed out that there was a partition between him and his father during the lifetime of his father and that in that partition he got half the house and that the other half devolved upon him on the death of his father under section 8 of the Hindu Succession Act. Relying upon the decision of the Supreme Court in CWT v. Chander Sen [1986] 161 ITR 370 and of the Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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