2009 (8) TMI 33

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....med to have purchased a three bed room flat in Kanungo Cooperative Group Housing Society and, therefore, claimed the entitlement for the benefit of Section 54-F of the Act. All the three authorities below namely, the Assessing Officer (A.O), The Commissioner Of Income Tax (Appeals) (CIT)(A) and Income Tax Appellate Tribunal (I.T.A.T) have declined the benefit of Section 54-F to the Assessee. 2. The relevant portion of Section 54-F reads as under:- "54F. (1) [Subject to the provisions of sub-section (4), where, in the case of an assessee being an individual or a Hindu undivided family], the capital gain arises from the transfer of any long-term capital asset, not being a residential house (hereafter in this section referred to as the o....

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....tial house and second is construction of a residential house. 4. Before us, the learned Senior Counsel Mr. S.Ganesh, on behalf of the assessee, has strongly urged that the authorities below misdirected themselves in requiring that the purchase of the property must be paid after the selling of the agricultural property in as much as the very language of Section 54F contains an eventuality of purchase of the residential house even before one year of the sale of the agricultural land. 5. The proposition as canvassed by the counsel for the appellant is not in question and surely the section itself says that the purchase of the new residential house can be made either before one year of the sale of the agricultural land or after two years ....

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....assessee has sought to bring his case under the eventuality of "purchase" or "construction", at his own convenience before the authorities. While before the CIT(A) the stand which was taken was that of purchase of a flat, the stand which was taken up before the I.T.A.T by the assessee was that of a construction of a house within three years of sale of agricultural land. Before this court, once again the stand which has been taken up was of purchase and not of construction within three years of the sale agricultural land. 8. The facts above clearly show that the amount which was available to be taxed as capital gain was not utilized for the purchase of the flat either one year before the sale of the agricultural land or two years after th....

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....ce of the allotment letter. The said circular of the CBDT was, therefore, held inapplicable to the case of the appellant rightly by the I.T.A.T 9. Independent of the above discussion, an aspect which overrides the above issue, is that, the agricultural land which was sold was of Vipin Malik HUF and the flat purchased in the co-operative society was not in the name of the HUF. The flat was in the individual name of Vipin Malik along with his mother Smt. Chanan Devi Sachdeva. To claim the benefit of Section 54-F the residential house which is purchased or constructed has to be of the same assessee whose agricultural land is sold and which is therefore not the case here. The following paragraph 12 of the order of the I.T.A.T effectively and....

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....with the stand taken on behalf of the assessee on this issue. In this regard, a reference can be made at the outset to the certificate issued by the society bearing No.237/4135/92 dated 22.7.1992 (copy at page 17 of assessee paper book) which certifies that as per the records of the society, the membership 237 stands in the joint name of Smt. Chanan Devi Sachdeva and Shri Vipin Malik, resident of S-370, Greater Kailash, Part-II, New Delhi. There is no mention whatsoever to suggest or indicate any involvement of HUF in the said membership or Vipin Malik holding the membership as Karta of the assessee-HUF. Page 11 of the paper book is a letter issued by the said society on 19.10.1995 giving details of amounts deposited by them aggregating to ....