2022 (1) TMI 639

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....f the case and in law , whether the ld CIT(A) has eared in allowing the assessee's claim of Rs. 2,40,03,938/- u/s 54F of the Income Tax Act,1961" 3. The facts in brief are that the assesse has filed the return of income on 24.08.2015 declaring total income of Rs. 3,12,91,040/-. The case of the assesse was selected for scrutiny and statutory notices were duly issued and served upon the assessee. The assesse is an advocate by profession and is having from profession, house property, capital gain and other sources. The AO noticed during assessment proceedings that assesse has sold two flats and invested the capital gain arising therefrom in flat no.4801 and thus claimed deduction u/s 54F of the Act. Accordingly, the AO called upon the assesse....

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....show cause notice to the assessee as to why the deduction u/s 54F of the Act should not be restricted to Rs. 2,15,75,949/- being the gains arising from that portion of the sale consideration relatable to Flat 601 and the deduction of Rs. 2,40,03,298/- in respect of flat no. 701 should not be rejected. The assessee submitted before the AO that the date on which the transfer of Flat No. 701 took place was 22.07.2014 when the court decree was passed and not when the last instalment of sales consideration was received. However the reply of the assessee did not find favour with the AO and he rejected the claim of the assessee u/s 54F of the Act to the extent of gain arising from sale of flat No. 701. 5. In the appellate proceedings, the ld. CIT....

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....otal consideration) within one year, but delayed in making the balance final payment by 20 days, i.e. on 24-11-2014. Now the issue before us is whether the date of sale/transfer is 22.70.2014 or the date when the final installment of sale consideration was received on 24.11.2014 and whether amount of Rs. 9,37,94,130/- paid by the assessee on 31- 10-2013 under agreement dated 19-09-2013 for acquisition of immovable property at Lodha Bellisimo can be off set against the gains earned by him on the sale of under construction immovable property (a duplex flat bearing no. 601 & 701) at Bhagtani Krishang on 22-07-2014 under a decree of the Hon'ble Bombay High Court u/s 54F of the Act. For the sake of ready reference and better understanding th....

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....of section 54 is the date of agreement of sale and the Hon'ble Delhi High Court in CIT vs Bharti Mishra (222 Taxman 2) has held that section 54 is pari materia to section 54F. During the course of the hearing Departmental Representative reiterated the stand of the AO and has relied on the assessment order whereas the assessee's counsel in addition to supporting the findings of CIT(A) on the basis of the decisions relied upon by the CIT(A) also placed reliance on a recent decision of the Hon'ble Gujarat High Court in the case of Kishorebhai Harjibhai Patel vs. ITO (417 ITR 547) which, after following the decision of the Apex Court in Sanjeev Lal (supra) and after considering the decisions several other High Courts across the country includin....