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TMI Blog2021 (12) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... Dated:- 29-11-2021 - Shri A. Mohan Alankamony, Accountant Member And Shri S.S. Godara, Judicial Member For the Assessee : Shri K.C. Devdas. For the Revenue : Shri T. Sunil Goutam. ORDER PER S. S. GODARA, J.M. This assessee s appeal for A.Y 2011-12 arises from the Commissioner of Income Tax (Appeals)-5, Hyderabad s order dated 16.07.2019, in case No.0060/2018-19/CIT(A)-5 involving proceedings under section 143(3) r.w.s. 147 of Income Tax Act, 1961 (in short, the Act ). Heard both the parties. Case file perused. 2. The Revenue has raised the following substantive grounds in the instant appeal. 1. Whether in the facts and circumstances, the order of the ld.CIT(A) in directing the Assessing Officer to allow the claim of the assessee u/s 54F of the Income Tax Act, is not perverse, illegal and likely to be set aside. 2. Whether in the facts and circumstances, the ld.CIT(A) is justified in directing the Assessing Officer to consider all the residential flats received as consideration as part of reinvestment for the purpose of Section 54F, when the assessee received multiple flats located on different floors separated by different blocks of a ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the individual sale consideration of appellant got the value from the SRO during the course of assessment proceedings and the SRO stated that the constructed area cost for the purposes of stamp duty was ₹ 1300/- per sq.ft. The AO therefore determined the consideration by multiplying the constructed area in sq.ft which was to be received by the appellant by a figure of ₹ 1300/- per sq.ft. It was agreed between the parties, that Owners will receive constructed area out of the apartments and flats to the extent of 55% approximately and SD will retain 45% approximately of this relevant constructed area. The supplementary agreement, went on to identify the respective units, working out the Owner's share at (300199 sq.ft) and SD's share at 246921 sq.ft in the agreed proportion of 55 : 45. The agreement was entered on 14.02.2011 between appellant and 12 other persons (being called the first party in the agreement). The agreement further goes on to identify the share of respective owners on the basis of their lineage and understanding which has been mentioned by the appellant in the submissions and the shares as identified in the agreement of these respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut an application of consideration of monetary terms. Thus it cannot be claimed that the consideration has not been received by the Owners, further needless to state that each of the Owners received certain amount of the cheque in the execution of the agreement. 8. The cheque were called refundable deposit for the convenience of the Owners, the agreement explicitly states that the same would be adjusted against the constructed area if not given, this implies that the amount of money has been received by the Owners and they have allotted constructed area over and above the amounts given at the time of the executing of the agreement. Thus the Owners receive certain amounts of cheque along with the application of the balance consideration in the form of constructed area. 9. The buyer which is SD has thus taken possession of the property; paid consideration of some quantum to each of the Owner and also agreed to give constructed area pertaining to their share. The buyer which is SD has thus taken possession and paid part consideration in monetary terms also, so that, the Owners cannot challenge this sale of land and can only now challenge regarding the delivery of the constru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the analysis of the documents and the agreement already made in the above paragraphs, it is very clear that there was a transfer of land within the meaning of - Sec. 2(47) of the IT Act 1961 in the present year under consideration, the relevant Capital Gains, which arose on account of such transfer, was not disclosed by the appellant in the return for the present year under consideration and therefore the AO was correct in reopening the case u/ s 147 and proceeding to assess the said income accordingly. The appellant might have disclosed the same in AY 2013-14, the same cannot change the chargeability of tax as per law and as per the year under consideration. Therefore, the first ground of appeal is dismissed accordingly. The second ground of appeal states that the document was already on record and therefore as the relevant gain was disclosed in AY 2013-14, therefore the case need not be reopened. The chargeability of tax has to be in the year of transfer and not as per the desire of the appellant in the year which it will like to disclose, therefore the ground of the appellant is dismissed accordingly as per the conclusion drawn in the above paragraphs. The thir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT vs Syed Ali Adil ( Decision of AP High Court dated 20.12.2012): In this case though the decision was rendered in the context of Sec 54 of the IT Act the hon'ble high court held that the assessee was eligible for exemption in respect of a residential hose which consists of multiple units. In view of the above decisions, it is clear that even if the investment is made in multiple residential houses/units, the appellant will be entitled for exemption u/ s. 54F. It is also important to note that an amendment u/ s. 54F took place vide Finance Act, 2014, wherein, a residential house was substituted with one residential house in India w.e.f 01.04.2015. The said amendment very clearly states that prior to 01.04.2015, the section did not restrict the investment to only one residential house. Therefore from the above decisions and subsequent amendment, the reinvestment quantum for eligibility u/ s. 54F cannot be limited to one residential house. Therefore, the AO is directed to consider all the residential flats received as consideration as part of re-investment for the purpose of section 54 F. As regards the reference to the valuation officer for the valuati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al to it, the appellant has also raised the ground no. 6 of this appeal, which is more or less identical to the ground no. 6 of the above reproduced order, in view of the identical issue, the ground no. 6 is allowed accordingly. The ground nos. 2 to 5 have been withdrawn by the appellant and therefore are dismissed accordingly. The ground no. 5a raised during the course of appellate proceedings, as additional ground is also dismissed as the same is withdrawn by the appellant. The ground no. 7 has not been substantiated and loses relevance in view of relief granted in ground no. 6, however the same is dismissed for want of substantiation. The ground no. 1 and 8 are general in nature and needs no separate adjudication. 4. We next find that this tribunal s recent common order dated 23.11.2021 in Revenue s appeals ITA Nos.732, 889 and 890/Hyd/2019 and corresponding assessee s Misc. Applications MA Nos.48-50/Hyd/2021; quotes case law CIT Vs. Vittal Krishna, Conjeevaram Vs. ITO 144 ITD 325 (Hyd), CIT Vs. Syed Ali Adil 352 ITR 418 (AP), CIT Vs. Anand Basappa 309 ITR 329, CIT Vs. Gita Duggal 357 ITR 153, Arun K. Thiagarajn Vs. CIT 193 DTR 153, CIT Vs. Gumanmal Jain 394 ITR 666, T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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