2020 (2) TMI 418

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...., 1961. The assessee has also raised 3 additional grounds but in course of hearing, it is submitted by the learned AR of the assessee that these additional grounds are not pressed and accordingly, the same are rejected as not pressed. 3. In course of hearing, learned AR of the assessee submitted that this is the case of the AO and CIT (A) that the assessee is also owning 9 flats out of total 24 flats received by the assessee from the developer because remaining 15 flats were already sold and even if the assessee has not received possession of those 9 flats, the assessee is owner of the same and therefore, deduction u/s 54F is not allowable to the assessee. He pointed out that before the AO, reliance was placed by the assessee on the Judgm....

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....esulted in 24 flats coming to the share of the assessee. In the present year, 15 flats were sold by the developer on behalf of the assessee and as on 31.03.2012, 9 flats were lying unsold. The assessee deposited an amount of Rs. 250 Lacs on 30.07.2012 under Capital gains Account Scheme i.e. within the due date of filing the Return of Income and claimed deduction of Rs. 248,72,991/- u/s 54F. Later on, the assessee used this money to buy a property in koramangla. The objection of the AO is this that the assessee owns a self-occupied house property and these nine unsold flats and therefore, as per proviso a (i) to section 54F (1), the assessee is not eligible for deduction u/s 54F. Now, we reproduce the relevant proviso below sub section (1) t....

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.... therefore, in our considered opinion, this proviso is not applicable in the present case. At this juncture, we would like to observe that in view of the facts of the present case and this Judgment of Hon'ble Karnataka High Court rendered in the case of CIT vs. T K Dayalu (Supra), the capital gain should have been taxed in A. Y. 2009 - 10 being the assessment year relevant to the year of JDA but the assessee has also offered the capital gain for taxation in the present year (not in A. Y. 2009 - 10) and the revenue has also accepted this and this issue is not open before us. But for the purpose of this proviso, date of transfer of original asset is important which is 16.09.2008 being the date of JDA. Even if we take 01.04.2011 (i.e. First Da....

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....e, this para is reproduced hereinbelow for ready reference:- "12. In the instant case, the facts are not in dispute. On a site measuring 30'x110', the assessee had a residential premises. Under a joint development agreement, she gave that property to a builder for putting up flats. Under the agreement eight flats are to be put up in that property and four flats representing 48 per cent is the share of the assessee and the remaining 52 per cent representing another four flats is the share of the builder. So, the consideration for selling 52 per cent of the site is four flats representing 48 per cent. All the four flats are situate in a residential building. These four residential flats constitute "a residential house'' for....