TaxTMI 
TaxTMI 
2016 (10) TMI 60
X X X X Extracts X X X X
X X X X Extracts X X X X
....came to be filed by the assessee on 17.07.2003 declaring her total income as Rs. 34,59,390/-. Assessment came to be reopened under Section 147 and in response to the notice issued under Section 148, reply came to be filed by the assessee stating thereunder that original return filed is to be treated as return filed in response to the notice issued under Section 148. Accordingly, assessment proceedings came to be framed. 3. Assessing officer has noticed that assessee had sold a flat at Mumbai on 04.02.2003 for a total consideration of Rs. 1,71,00,000/- and had worked out long-term capital gain of Rs. 1,44,68,032/- and had claimed exemption under Section 54 of the Act on the ground that assessee had reinvested said amount for purchasing another property at Mumbai by paying an advance of Rs. 1,60,00,000/- as against total value of property at Rs. 3,25,00,000/-. Assessing officer has held that agreement to purchase the said property was entered on 08.09.2003 and between April' 2003 to September' 2003 Rs. 2,40,00,000/- was paid by the assessee. By assessment order dated 31.12.2007 - Annexure - C assessing officer held that sale transaction had not been concluded, no registrat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ested by her is only a portion of total sale consideration and as such, assessee would not be entitled to the benefit of Section 54 of the Act. He would also submit that possession of the property proposed to be purchased was also not delivered to the assessee within two years and as such, assessee would not be entitled to claim benefit flowing from Section 54 of the Act. Hence, he prays for answering the substantial question of law in favour of the appellant-revenue. 9. Per contra, Sri. A. Shankar, learned counsel appearing for assessee would support the order passed by the Tribunal and contends that it is the utilization of amount, which was received by the assessee by sale of property, which had to be reinvested for the purposes of claiming benefit under Section 54 of the Act and said exercise having been undertaken by the assessee, Tribunal on appreciation of facts had found that assessee had reinvested the amount and thereby granted the benefit of claiming Long Term Capital Gain as provided under Section 54 of the Act. Hence, he prays for answering the substantial question of law in favour of the assessee. In support of his submission he would rely upon the judgment of this....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rs of its purchase or construction, as the case 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. [(2) The amount of the capital gain which is not appropriated by the assessee towards the purchase of the new asset made within one year before the date on which the transfer of the original asset took place, or which is not utilised by him for the purchase or construction of the new asset before the date of furnishing the return of income under section 139, shall be deposited by him before furnishing such return such deposit being made in any case not later than the due date applicable in the case of the assessee for furnishing the return of income under sub-section (1) of section 139 in an account in any such bank or institution as may be specified in, and utilised in accordance with, any sche....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hich is chargeable as 'income from house property'; (iv) Property should be a residential house; (v) Assessee must have within a period of two years after that date purchased another property; (vi) Property purchased must be residential; (vii) Exemption would be available only to the extent the sale proceeds are utilised; (viii) Where re-investment in a residential property is not made before due date for filing report, amount not so utilised till such date is required to be deposited in Capital Gain Account Scheme. Thus, if the above conditions are satisfied, assessee is entitled to claim benefit of the provision of Section 54. 13. Facts on hand would disclose that assessee had owned a flat at Mumbai and sold the same on 04.02.2003 for a total consideration of Rs. 1,70,00,000/-. Subsequent to such sale she entered into an agreement for purchasing another property for a total consideration of Rs. 3,25,00,000/- by agreement dated 08.09.2003. Said agreement came to be entered into within six months from the date of sale i.e., 04.02.2003 and assessee had paid a total consideration of Rs. 2,40,00,000/- between April' 2003 to September' 2003. After m....