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TMI Blog2024 (5) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase, therefore, the date of completion of construction is to be looked into which is as per provision of section 54 of the IT. Act. In this case also assessee has booked an under construction flat and same was handed over to the assessee on completion of construction. Further Coordinate bench in Bastimal K jain [ 2016 (6) TMI 1243 - ITAT MUMBAI ] has also held that he assessee s claim of deduction under section 54 was to be reckoned from the date of handing over of the possession of the flat by the builder to the assessee i.e. 11-9-2009, and if one took that date, the assessee was entitled to deduction under section 54 because the assessee had sold his residential flat on 24-2-2010. All other decisions relied on by the assessee also held that date of possession of new property should be considered as the date of acquisition of the property. In the assessee s own case while computing capital gain ld. AO has taken date of allotment as the date of acquisition of the property. Hence, we hold that assessee is entitled to deduction u/s 54 of the act on purchase of new property considering the date of possession , when it is completed, as the date of purchase of property as agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the grounds of the variance in the calculation of indexed cost of acquisition of Rs. 76,19,860/- by the assessee against the value of Rs. 68,50,486/- which was arrived at by the assessing officer thereby treating this variance as concealment/furnishing of inappropriate particulars of income. 4. The assessee carves leave to add further grounds or to amend or alter the existing grounds of appeal on or before the date of hearing." 05. Identical grounds of appeal are raised in ITA number 4070/M/2023 in the case of Mrs. Rita Sunil shah. 06. Brief facts of the case show that the assessee is a non-resident individual. Information was received from The Assistant Commissioner of Income Tax 18 (2), Mumbai that the assessee has sold flat number 1802 in FIONA , Hiranandani estate, Ghodbunder Road, Thane jointly owned along with his wife Mrs. Rita Shah for a consideration of ₹ 138 lakhs on 10/2/2011. Therefore, notice under section 148 of the act was issued on 31/3/2018. Assessee did not comply with the notices and therefore the assessment was completed under section 144 (1) of the act on 28/12/2018 treating the gain of ₹ 4,567,000/- as the assessee share of 50% on sale of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch case of assesses were reopened is satisfied as undisputedly, computation of capital gain on sale of that property was arrived at. 09. In the computation of income furnished by the assessee, Assessee has claimed deduction under section 54 of The Income Tax Act on the entire long-term gain. The claim of the assessee is that the assessee purchased a new residential flat number 1501, Tower number 7, Orchard residency, LBS Marg, Ghatkopar (W) Mumbai. For this property assessee entered into an agreement for sale with Builder Runwal CapitaLand India Private Limited on 25-07-2009 for consideration of Rs 73,06,530/- . On 2/2/2011, the assessee was granted possession of the flat by the builder after receipt of occupancy certificate and when the building was inhabitable. Assessee claimed the deduction u/s 54 of the Act of capital gain earned on sale of old flat. Assessee considered the date of possession i.e., 02/02/2011 as the date of acquisition of property. The ld. AO held that date of acquisition of property is 25/07/2009. 010. As per provisions of section 54 of the Act , if assessee has within a period of one year before or two years after the date on which the transfer took place p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ages paper book and relied upon several judicial precedents. He submits that the issue in this case is squarely covered by the decision of the honourable Bombay High Court in case of CIT versus been RK Jain in ITA number 260 of 1993 (1994) [75 taxman 145] wherein the honourable High Court held that that the date of possession of the new residential premises instead of the date of sale agreement should be considered for exemption under section 54F of the act. He submits that there is no difference in the eligibility for deduction under section 54F and 54 of the act. Therefore, the issue is squarely covered in favour of the assessee by the honourable jurisdictional High Court. He further submits that the coordinate bench in 148 taxmann.com 34 has also held so following the above decision of the honourable High Court. He further relied upon following decisions :- i. Sanjay vasant Jumde V ITO [ ITA 466 /Pun/2022 ii. Yogesh Jinghan V DCIT [ ITSS 100/Indore/2017] iii. ITO V Sunil Khanna [ ITA 5877/M/2016] iv. CIT V Beena Jain [ ITA 260 /1993] v. K S hanumantha rao V PCIT [ ITA 31/ Bgr/ 2021] vi. M George Joseph V DCIT ITA no 238 of 2015 vii. Hemanth Sridhar Pathak V ACIT IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be, the cost shall be nil; or (ii) if the amount of the capital gain is equal to or less than the cost of the new asset, the capital gain shall not be charged under section 45; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase or construction, as the case may be, the cost shall be reduced by the amount of the capital gain: 56[Provided that where the amount of the capital gain does not exceed two crore rupees, the assessee may, at his option, purchase or construct two residential houses in India, and where such option has been exercised,-- (a) the provisions of this sub-section shall have effect as if for the words "one residential house in India", the words "two residential houses in India" had been substituted; (b) any reference in this sub-section and sub-section (2) to "new asset" shall be construed as a reference to the two residential houses in India: Provided further that where during any assessment year, the assessee has exercised the option referred to in the first proviso, he shall not be subsequently entitled to exercise the opti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if assessee purchases the property. In this case by agreement dated 25/07/2009, assessee 'acquired right to purchase' a house which was under construction, on 2/2/2011, when house was handed over to the assessee, when it was inhabitable , assessee purchased house. 021. In principal commissioner of income tax & ors. Vs. Akshay sobti & ors. (2020) 423 ITR 0321 (Delhi)honourable Delhi high court held that the provision in question is a beneficial provision for assessee's, who replace the original long-term capital asset with a new one. It was further held that booking of bare shell of a flat is a construction of house property and not purchase, therefore, the date of completion of construction is to be looked into which is as per provision of section 54 of the LT. Act.In this case also assessee has booked an under construction flat and same was handed over to the assessee on completion of construction. 022. Honourable Bombay high court in case of Beena K Jain [ 217 ITR 363 (Bombay) has held [ in question of section 54 F which is PariMateria identical except computation] that :- "2. Under section 54F in the case of an assessee if any capital gain arises from the transfer of any lo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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