TaxTMI 
TaxTMI 
2019 (2) TMI 514
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....nded to the A.O. for his examination and comments. " 2. On the fact and circumstances of the case and in law, the Ld. CIT(A) erred in accepting the view of assessee that section 2(47)(v) is with reference to transfer for the purpose of capital gain in the hands of the transferor and is not to decide the date of purchase whereas the provisions of the I.T.Act do not suggest that section 2(47)(v) will not be considered for determining the date of acquisition of capital asset 3. On the fact and circumstances of the case and in law, the Ld. CIT(A) erred in allowing deduction u/s 54F of the I.T.Act, 1961 as the assessee purchased two residential houses instead of a residential house. " 4. On the fact and circumstances of the case and in law, the Ld. CIT(A) erred in relying on the judgment of Bombay High Court in the case of Devdas Naik which is different from this case in respect of single kitchen in two flats whereas in assessee case two residential houses had two kitchen. 5. On the fact and circumstances of the case and in law, the Ld. CIT(A) is not justified in allowing deduction u/s 54F of the I.T.Act, 1961 inspite of the fact that assessee has illegally adjoined two resident....
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....at and not a mere right in the flat. Applying the same logic, indexation benefit was denied to the assessee and STCG was worked out at Rs. 20.35 Crores against which the assessee was not entitled to claim deduction u/s 54F since the benefit of that section was available only against LTCG. 2.3 The Ld. AO, in the alternative, also noted that the assessee made investment in two flats i.e. Flat Nos. 1701 & 1702 for a consideration of Rs. 11.60 Crores and Rs. 11.30 Crores respectively. In terms of the agreement, the purchaser assessee intended to merge both the flats into one residential house after obtaining necessary approval from concerned authorities. It also transpired that both the flats had separate kitchens. The assessee defended the same vide submissions dated 16/03/2016 and contended that the two flats were not only adjacent flats but were being used as a single residential house. To support the same, a certificate dated 29/02/2016 issued by the concerned society was placed on record. However, not convinced, Ld. AO noted that the assessee had leased out these flats vide lease agreement dated 19/03/2013 according to which two flats were leased out and their area was mentioned....
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.... the proposed Society, as per the circular dated 15/10/1986, the allottee gets title to the property on the issuance of the allotment letter. In the agreement for purchase that was registered the allotment letter is a part of the registered agreement Thus, it can be said that the appellant got title to the property when allotment letter was issued to her i.e. on 22.10.2008. Further it has been clearly stated in the agreement to sale that society has handed over the possession of the flat to the transferee as absolute owner thereof. In case of CIT vs TATA SERVICES LTD(1980) 122 ITR 0594(Bom) it has been held that - The word "property", used in s. 2(14), is a word of the widest amplitude and the definition has re-emphasised this by use of the words "of any kind". Thus, any right which can he called property will be included in the definition of "capital asset". A contract for sale of land is capable of specific performance. It is also assignable. Therefore, a right to obtain conveyance of immovable property, was clearly "property" as contemplated by s. 2(14)." In case of Richa Bagrodia VS .DCIT-12(3), Mumbai (ITANo.3601/M/2012) it was held that the "date of allotment" should ....
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.... has acquired two flats as against lawful permission of one flat. These observations of the AO are as under:- i) Consideration paid for two flats purchased by the appellant is mentioned separately in the agreement and as per various clauses of the agreement it is revealed that all the three parties to the agreement being appellant, owner and Developer admit the existence of two separate flats bearing Flat No. 1701 and Flat No. 1702. ii) it has been pointed out by AO that as per clause 57(P) on page 40 of agreement it is clear that the merger of flat is not at a choice of the buyer but subject to the approval from the concerned authorities. iii) Reference has been made of the Annexure 'F-I' and 'F-II' of the agreements wherein both the flats have been shown with different kitchen. As per AO, when the flats ere purchased from the developers they were independent flats as per the plan and if at all they have to be joined it was the responsibility of buyer to bear the cost as well as to seek the permission of the local authority. iv) As per AO, Merger of two flats was after taking possession of flats and formation of society. Further, the society's certifica....
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.... Sushila M. Jhaveri, (2007) 107 ITD 327 (MUM)(SB), iv) CIT vs D Ananda Basappa 309 ITR 329 (Kar.), v) Commissioner of Income-tax v. Gita Duggal [2013] 30 taxmann.com 230 (Delhi HC) vi) ACIT v Mrs. Leela P. Nanda 286 ITR (AT) 113 (Mum) (2006) vii) CIT vs. K. G. Rukminiamma (Smt.) (2010) 48 DTR 377 (Kar.) viii) IT v. Syed Ali Adil (AP)(HC).(2013) 215 Taxman 283 6.2 I have carefully perused the assessment order and submission made by the appellant. The appellant has purchased two flats which are adjacent to each other and claimed deduction u/s. 54F for the said flats. As per s. 54F, deduction is allowed for 'a' residential house purchased. Further s. 54F was amended w.e.f. 01.04.2015 by substituting the word "a" with "one".Thus, it shows that prior to the amendment the exemption provided under section 54(1) was not restricted to investment made in one residential house. 6.3 In various decisions given by Hon'ble High Court and Hon'ble Tribunal, interpretation of the word "a" preceding the expression "residential house" has been given. In case of CIT vs. DEVDAS NAIK (Supra), it was held that deduction u/s 54 can be allowed if flats are a single unit and a hou....
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....re being used only as a single unit and therefore deduction u/s 54F was available to the assessee. 5. We have carefully heard the rival contentions and perused relevant material on record including documents placed in the paper-book and judicial pronouncements cited before us. Upon due consideration, we find that this is undisputed fact that the assessee acquired the right in specific Flat No. 702, 7th Floor, Aerial View CHS Ltd. by way of allotment letter dated 22/10/2008, as placed on record. The sale consideration was fixed at Rs. 3.40 Crores which was already paid by the assessee on 29/09/2008 i.e. much before issuance of allotment letter. The agreement for allocation of flat was executed vide agreement dated 15/12/2011 which was registered on 13/04/2012. This agreement is in respect of the same flat which was allotted to the assessee vide allotment letter dated 22/10/2008 and the agreement also contains reference of the allotment letter. The perusal of these facts reveal that the property proposed to be acquired by the assessee was specific & a unique property which was clearly identified in the allotment letter dated 22/10/2008 for which the agreement was executed on 15/12/2....