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TMI Blog2021 (11) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... truction of new residential house not the purchase of property. Accordingly the time limit will extend to 3 years from the date of transfer of property to complete the construction. We hold that the assessee cannot be denied the benefit of exemption available to him under the provisions of section 54/54F of the Act on account of the delay on the part of the builder. Whether the assessee has deposited a sum of ₹ 14 lakhs in the capital gain account scheme? - AR, at the time of hearing has not brought anything on record establishing the fact that the impugned amount represents the money deposited under the capital gain account scheme. However, the revenue has also not conducted any enquiry to disprove the contention of the assessee based on the cogent materials. Nevertheless, in the interest of justice and fair play we are inclined to remit this issue to the file of the AO to verify whether the impugned amount represents the deposits made under the capital gain account scheme or not. Assessee was the co-owner in the property along with his brother. The claim of the assessee s brother by the same AO was accepted and the deduction/exemption was allowed for the investme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppreciate the fact that Substantial part of the payment of RS 5 051000 was paid at the time of booking. (5) (a) The Hon CI T (Appeals) erred in observing that the appellate has not satisfied the conditional enumerated by the Act therefore not entitled for deduction u/s 54 of the Act. (b) That on the facts and the circumstances of the case and in law, it ought to be held the condition enumerated under provision of the Act are fulfilled and that the appellant is entitled to deduction of investment under 54 of that Act. Without prejudice to the Ground No 5(a) and (5)(b) .suitable amount to be directed to be allowed towards investment u/s 54 of the Act. The Appellant reserve right to add, amend and/or delete any grounds of appeal as and when the occasion arises 3. The only interconnected issue raised by the assessee is that the learned CIT (A) erred in confirming the order of the AO by denying the exemption claimed under section 54 of the Act for ₹ 64,50,000/- only. 4. The necessary facts as culled out from the order of the authorities below are that the assessee in the present case is an individual and non-resident assessee. The assessee in the year un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee and confirmed the order of the AO. 8. Being aggrieved by the order of the learned CIT (A), the assessee is in appeal before us. 9. The learned AR before us filed a paper book running from pages 1 to 34 and contended that the entire amount for the purchase of the property was paid and deposited in the capital gain account scheme within the prescribed time. The learned AR for this purpose drawn our attention on page 2 of the paper book where the bank statement of the assessee was placed. 9.1 The learned AR further contended that the benefit is extended to the assessee if he constructs the house within a period of 3 years from the date of transfer of the property. As the assessee has given money to the builder for the construction of the house, then the time limit for the assessee should be extended for 3 years from the date of transfer of the property. Thus in such a scenario, the assessee got the possession on 15th March 2016 which is well within a period of 3 years. The learned AR in support of his contention relied on the order of Mumbai Tribunal in the case of Kishore H. Galaiya vs. ITO reported in 24 taxmann.com 11 9.2 The learned AR also contended that the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso not disputed by the authorities below. In this regard, we also perused the bank statement of the assessee available on page 2 of the paper book. In the bank statement, the name of the builder was appearing showing the payment of ₹ 50,51,000/- within the financial year under consideration. Moving further, the flat was handed over to the assessee after the expiry of 2 years which contravenes the provisions of section 54 of the Act. However we find that the Mumbai tribunal in the case of Kishore H. Galaiya (supra) has held that once the assessee booked flat with builder and started making payment of instalment. Further, the builder was to handover the possession of the flat to assessee on completion of construction. Then such act of the assessee is to be considered as construction of new residential house not the purchase of property. Accordingly the time limit will extend to 3 years from the date of transfer of property to complete the construction. 12.2 In view of the above, we hold that the assessee cannot be denied the benefit of exemption available to him under the provisions of section 54/54F of the Act on account of the delay on the part of the builder. 12.3 Wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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