TaxTMI 
TaxTMI 
2020 (7) TMI 538
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....is Rs. 93,057/-. 2. Under the facts and circumstances of the case, the Ld. Assessing Authority and Ld. First Appellate Authority have grossly erred in holding that no ground has been raised by the assessee regarding claim of exemption u/s 54 at any stage during appellate proceedings, which is grossly arbitrary, injudicious and against the facts of the case. 3. Under the facts and circumstances of the case, the Ld. Assessing Authority and Ld. First Appellate Authority has not accepted the contention of the assessee that she is entitled for exemption for long term capital gain which is grossly arbitrary, unwarranted and against the facts of the case. 4. The Ld. Assessing Authority and Ld. First Appellate Authority have grossly erred in disallowing the cost of construction of flat amounting to Rs. 14,60,083/- as claimed by the assessee based on the valuation report of registered valuer which is grossly injudicious, arbitrary and bad at law. Tax Effect relating to above mentioned ground of appeal is Rs. 3,59,056/-. 2. Briefly stated facts of the case are that the assessee along with other two co-owners owned an ancestral property at Versowa, Mumba....
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.... expenses made for construction of the second floor, which has been sold by the assessee along with other co-owners. On further appeal, Income Tax Appellate Tribunal (in short 'the Tribunal'), on the issue of exemption under section 54, directed the learned CIT(A) to consider the additional ground raised by the assessee after going through the evidences which would be produced by the assessee. On the issue of the cost of the construction of the flat against short-term capital gain, the Tribunal directed to decide the issue afresh keeping in view the assessment order passed in the case of other co-owner Sh. Saurab Jain. 2.3 The Ld. CIT(A) in the impugned order, regarding deduction under section 54 of the Act held that no claim was filed by the assessee before the Commissioner (Appeals) in first round of the proceedings. The CIT(A) has merely dismissed the claim on the ground that conveyance deed in respect of the new flat was executed after approximately seven years from the date of the sale of the residential flat on second floor and thus assessee was not entitled for deduction under section 54 of the Act. The claim of the cost of construction claimed under short term capital....
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....ong-term capital gain and short-term capital gain only at the time of the sale of the flat on second floor. In the case, the assessee has received second floor of the tower in exchange of the sale of his share of the land and thus fair market value of the flat at the time of the receipt or possession by the assessee should have been considered as sale consideration received in transfer of land through exchange and long-term capital gain liabilities would have been decided accordingly. Any gain thereafter on sale of the second floor should have been taxed at the time of the sale of the second floor and taxed for the long-term capital gain nor short-term capital gain in view of the period the asset was held. 5.1 The question before us is of admissibility of the claim under section 54 of the Act. In our opinion, in the decision of the Hon'ble Supreme Court in the case of Goetze India Ltd Vs CIT (2006) 157 Taxmann 1 (SC), the Assessing Officer has been barred from accepting any new claims, but no such bar has been imposed on the appellate authorities, including the first appellate authority. The assessee is in second round of the litigation and claim of the assessee for deduction un....
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....of this agreement. It is agreed by and between the parties that conferment of title in respect of the said premises shall take place in favour of the Purchasers only on the Purchaser's making full payment of consideration to the Developers and complying with the terms and conditions of this Agreement and on the Purchaser being admitted as a member of the said society as herein provided." The aforesaid clause makes it unambiguously evident that the assessee has no right whatsoever in the property on mere execution of agreement. The assessee shall be conferred title of property only on making full payment of consideration to the builder. In the instant case, full consideration has been paid by the assessee for purchase of residential flat within a period of one year before the date ITA Nos.1424 & 1707/PUN/2016 of transfer of capital asset. Thereafter, actual possession of the flat was delivered to assessee on 17.09.2010 i.e., within a period of one year prior to the date of transfer of capital asset. It is an un-rebutted fact that at the time of execution of agreement, the residential property was not in existence. Therefore, taking into consideration facts of the case, ....