AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (1) TMI 668
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....assed against the provisions of the Income Tax Act, 1961. 1. Your honor, hon AO has made an addition of Rs.28,79,000/- during the assessment proceedings by disallowing the exemption under section 54F which has not even been claimed by the assessee in her income tax return. Therefore, the disallowance of exemption under section 54F does not enhance the income of the assessee. 2. Your honor, hon AO has not considered the facts of the case i.e. exemption has been claimed by the assessee under section 54, as LTCG of Rs. 28,79,000/- was utilized against the purchase of residential flat no. 301, 3rd floor, block-1, Samapada Co-operative Ground Housing Society Ltd., plot no. GH-06, Sector-46, Faridabad, Haryana. Therefore, no add....
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....15, and therefore, arising LTCG of Rs.28,79,000/- is eligible for exemption under section 54. Your honor, hon AO has not raised question during the assessment proceedings for the legitimacy of LTCG and without considering the provision of section 2(47) of the Income Tax Act,1961 and wrongly taken the date of transfer 12/12/2012 i.e. date oi registered sale deed which is incorrect and against the provision of section 2(47) of the Income Tax Act,1961.As per section 2(47) clause (v) St (vi) read with explanation 2 in which it is clarified as per clause (v) St (vi)of section 2(47) as follows:- "(v) any transaction involving the allowing of the possession of any immovable property to be taken or retained in part performance of ....
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....e has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.]" The assessee entered into tri-part agreement with the owner and contractors on 26/05/2011 and started their construction on the flat (which is reasonable certain, as per agreement to sale) owned according to section 53A of the transfer of tm properties Act, 1882. As the transfer took place on the date of Agreement datec 26/05/2011, which is more than before 3 years from the date of sale i.e. 19/02/2.015. therefore disallowance of capital gain under section 54 i....
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....referred appeal before the learned CIT(Appeals), who after considering the submissions dismissed the appeal. Aggrieved against this, the assessee is in appeal before this Tribunal. 5. Learned DR supported the orders of the authorities below. 6. I have heard learned DR and perused the material available on record. The learned CIT(Appeals) has decided the issue by observing as under: "7. The facts of the case as well as material available on record and arguments of the Learned AR have been gone through. The appellant has entered into an agreement with Smt. Asha madan and Smt. Shashi Bala, owners of (house No. 215, Sector-15A, Faridabad) vide Agreement dated 26.05.2011. In the said agreement, it has been agreed that the existing....
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....s Act, it is essential that the possession should combine with the part/ full payment also, which are not the facts of the present case. The facts of the present case are different from the case of Shri Sanjeev Lai (supra) as relied by the appellant as no payment part/ full has been made by the appellant to Smt. Asha Madan and Smt. Shashi Bala on Sector-15A, Faridabad) vide Agreement dated 26.05.2011. In the said agreement, it has been agreed that the existing house would be demolished and would be reconstructed. For this purpose, the construction cost of Rs.36,21,000/- would be borne by the appellant and in return she would be entitled to get 1st floor of the newly constructed house. It is specifically mentioned in Clause (3) of the said a....