Loading judgment…
Facts
The assessee sold a property for Rs. 7.20 Crores and claimed exemption under Section 54 for purchasing and constructing a new residential property. The AO allowed partial exemption, which was upheld by the CIT(A). The assessee contended that the entire cost of the new property should be considered for exemption.
Held
The Tribunal held that the construction of the new property was acquired and constructed within the statutory period. It further held that the cost of land and stamp duty are part of the cost of acquisition. The Tribunal cited judicial precedents stating that the sale proceeds need not be exclusively used for the new property and that commencement of construction before the sale of the old property does not bar exemption.
Key Issues
Whether the assessee is entitled to full exemption under Section 54 for the cost of acquiring and constructing a new residential property, despite partial disallowance by the lower authorities.
Sections Cited
54, 143(1), 143(3), 143(2), 142(1), 250
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “C” BENCH, DELHI
Before: SHRI S RIFAUR RAHMAN & SHRI VIMAL KUMAR
The appeal filed by the assessee is against the order dated 17.03.2025 of Ld. Commissioner of Income Tax (Appeals)/NFAC, Delhi (hereinafter referred to as ‘The CIT’) u/s 250 of the Income Tax Act, 1961 (hereinafter
P a g e | Azizul Ghani (AY: 2015-16) referred to as ‘the Act’) arising out of assessment order dated 22.12.2017 of Ld. AO/ITO, Ward 63(3), Delhi, u/s 143(3) of the Act for AY: 2015-16.
Brief facts of the case are that assessee filed return of income on 29.03.2016 declaring income of Rs.18,71,470/-. The return was processed u/s 143(1) of the Act at returned income. The case was selected by CASS for limited scrutiny for verification of the claim of deduction under head capital gain. Notices u/s 143(2) and 142(1) were issued. On completion of proceedings ld. AO vide order dated 22.12.2017 held that an impugned of Rs.35,00,000/- qualifies for deduction u/s 54 of the Act and the amount of Rs.6,66,46,841/- did not qualify deduction and same was added back to the income of assessee under the head of long term capital gain.
3. Against order dated 22.12.2017 of ld. AO the assessee filed appeal before the ld. CIT(A) which was dismissed vide order dated 17.03.2025.
4. Being aggrieved appellant assessee preferred present appeal with following grounds:
“1. That the order passed by the Ld. Commissioner of Income Tax (Appeals) - National Faceless Appeal Centre (NFAC), dated 17.03.2025, is bad in law and on P a g e | Azizul Ghani (AY: 2015-16) facts and liable to be quashed, being contrary to the facts of the case and settled judicial principles.
2. That the Ld. CIT(A) has erred in upholding the denial of exemption under Section 54 of the Income Tax Act, 1961, without properly appreciating the evidences, facts, and circumstances of the case.
3. That the Ld. CIT(A) failed to appreciate that the new residential property at A- 227, New Friends Colony, New Delhi was substantially acquired and constructed well within the statutory period of 3 years from the date of transfer, and the registration of deed for ½ share was delayed by a mere 15 days due to procedural technicalities, despite substantial payments already made prior to the expiry of the period.
4. That the Ld. CIT(A) has not passed a speaking order on the revised and corrected computation of capital gains submitted during the appellate proceedings, wherein the assessee had provided a detailed and substantiated working of the indexed cost of acquisition, including: • Indexed cost of 32.5% share of original purchase price of Property No. B-480, New Friends Colony, New Delhi (purchased on 12.08.1985) 5,98,000 × 32.5% × 1024/133 = 14,96,349 • Indexed cost of Freehold Charges (paid on 14.10.1999) 1,35,546 × 32.5% × 1024/389 - 1,14,252 • Proportionate indexed cost of construction during FY 2008-2010 77,50,652 × (374.86/940.61) × 1024/711 = 44,48,649 Total Indexed Cost of Acquisition = 69,43,452 Resulting Correct Long-Term Capital Gain = 6,47,06,548 (against the assessed figure of 7,01,46,841 or the incorrect revised figure of 5,95,05,940) 5. That the Ld. CIT(A) erred in law and on facts in not appreciating that the proof of construction of the new property was duly submitted during the appellate proceedings in the form of construction bills, architect-approved maps, MCD inspection reports, bank statements, and final registered sale deed, all of which clearly demonstrated substantial compliance with Section 54 conditions.
6. That the Ld, CIT(A) failed to consider that payment of stamp duty amounting to 77,28,397 is part of the cost of acquisition and is thus also eligible for exemption under Section 54.
7. That the Ld. CIT(A) has passed a non-speaking, cryptic order ignoring detailed documentary evidence submitted and failed to discharge the appellate responsibility of examining and adjudicating disputed facts objectively.
P a g e | Azizul Ghani (AY: 2015-16) 8. That the entire assessment and appellate order suffers from non-application of mind, denial of natural justice, and procedural irregularity, warranting full relief in favour of the appellant. 9. That the appellant craves leave to add, alter, amend, or withdraw any of the aforesaid grounds of appeal at any time before or during the course of hearing, in the interest of justice.”
5. Ld. Authorized Representative for appellant assessee submitted that ld.
CIT(A) erred in confirming partial allowance of exemption u/s 54 of the Act by Ld. AO to the extent of Rs.35,00,000/- in place of Rs.7,01,41,842/- claimed by the assessee.
The assessee had sold a property B-480, New Friends Colony as on 12.09.2014 for a sale consideration of Rs. 7.20 Crores. The assessee entered into a collaboration agreement with two persons namely, Sh. Khalid Riaz and Sh. Anisuddin for purchase and construction of another property A-226, New Friends Colony during the year under consideration. The assessee had to pay the following amounts for the said property; For purchase of rights in land:
To Khalid Riaz 75,00,000/-
To Anisuddin 75,00,000/- Estimated cost of construction 6,00,00,000/-
P a g e | Azizul Ghani (AY: 2015-16) In this manner the assessee claimed exemption under section 54 amounting to Rs.7,01,41,842/-.
7. The A.O. allowed assessee the exemption only to the extent of Rs. 35,00,000/- being the amount paid to Sh. Khalid Riaz till the due date of filing the return for the year under consideration. The A.O. raised following observation in order to not provide full exemption under section 54 of the Act: i. The assessee had filed two different computation for claiming exemption. ii. The collaboration agreement copy of which was file before A.O. was not the original agreement. iii. As per statement of Sh. Anisuddin the sale deed of the property was registered as on 26.09.2017 which was beyond a period of three years from the date of sale of original property l.e.
12.09.2014. iv. The inspectors report also suggests that the construction was not completed within three years.
P a g e | Azizul Ghani (AY: 2015-16) v. The assessee had not deposited the capital gain amount in the capital gains account scheme. vi. Out the sale proceeds assessee had given unsecured loans to some persons.
8. With respect to two computations, it is assessee's submission that the new revised computation is the correct computation and in any case the capital gain arising after exemption under section 54 is the NIL in both the cases. Further neither the A.O. nor the CIT(A) had anywhere had doubted any of the figures given in the revised computation. The assessee had filed the copy of collaboration agreement, original was not available with him.
Otherwise also all transaction relating to purchase and construction are corroborated with bank statement and bills etc. In any case the final sale deed is with the authorities and in view of the bank statement showing construction cost payment and the copy of invoices the construction have not been denied. The assessee does not deny that the sale deed of constructed property was dated 26.09.2027, which is 14 days beyond the prescribed period. A copy of sale deed is placed in PB pg. 46-63. The inspector's report was never confronted to the assessee. However the sale deed proves the P a g e | Azizul Ghani (AY: 2015-16) construction of property. The assessee does not deny that he has not opened a capital gain account. The sale consideration was kept in his saving bank account in HDFC. (PB PG 85). This account contains not only the sale consideration but also the other incomings also, out of which not only he has given these loans, he has also paid the purchase consideration and also incurred the construction costs. Details of construction expenses are at PB Pg.
117 with the corresponding bank statement at PB Pg. 122 onwards. Money has no colour, as the assessee was having enough funds it cannot be said that only out of sale consideration he has given the loans. The assessee had filed the following documents before lower authorities:
PB. Pg. Sale deed dt. 15.09.2014 9 Purchase deed dt. 26.09.2017 46/64 Copy of collaboration agreement 39 Details of payment made to Khalid Riaz for purchase 82-83 Details of payment made to Anisuddin for purchase 84 Bank statement showing above payments 85-116 Details of construction expenses 117-119 Bank statement showing construction expenses 120-147 Invoices of construction expenses in a separate PB.
P a g e | Azizul Ghani (AY: 2015-16) 9. Construction cost incurred within three years has to be allowed.
Funds not necessarily to be kept in Capital Gain Account Scheme:
• Narayan Ravi Prakash Vs. ITO, WP No. 8936 of 2022, Karnataka HC • Venkata Dilip Kumar Vs. CIT, [2019] 419 ITR 298 (Mad), Madras HC • CIT Vs. K Ramachandra Rao, & 495 of 2013 & 46 & 47 of 2014, Karnataka HC • Shri Krishnamoorthy Vijayaraghavan Vs. ITO, ITAT Chennai, ITAT Chennai • Sarita Gupta Vs. Pr. CIT, Ghaziabad, ITAT Delhi • Jagan nath Singh Lodha Vs. ITO, & 514/Jodh/1999, ITAT Jodhpur • M.A.C. Khaleeli Vs. Dy. CIT, [1994] 48 ITD 191 (Mad), ITAT Madras
P a g e | Azizul Ghani (AY: 2015-16) 10. Delay in construction of property does not bar assessee from exemption under section 54 - Pr. CIT Vs. C. Gopalaswamy, of 2015, Karnataka HC - CIT Vs. BS Shanthakumari, Kanataka HC - Vadagur Narayanappa Premachandra Vs. ACIT, ITAT Banglore - DCIT Vs. Bagalur Krishnaiah Shetty Vijay Shanker, ITAT Banglore
The only negative inference with reference to non completion of construction can be drawn in the year in which the period of three years end - Deepak Bhardwaj Vs. ITO, ITAT Delhi - Arthur Jagaraj Devapragasam Vs. DCIT, ITAT Chennai - Sheela Ramchand Uttamchandani Vs. ITO, ITAT Mumbai
P a g e | Azizul Ghani (AY: 2015-16) 12. Since money doesn't have any colour, it is not necessary that the same money received on sale of an asset is required to be utilised.
- CIT Vs. Shri Kapil Kumar Agarwal, [2016] 382 ITR 56, Punjab and Haryana HC - Philip Koshy Vs. DCIT, ITAT Delhi - Shri Jignesh Jaysukhlal Ghiya Vs. DCIT, ITAT Ahmedabad
Beneficial provisions are to be construed liberally.
- Parikh Amitkumar Mahendrabhai Vs. DCIT, ITA No.
1199/Ahd/2025, ITAT Ahmedabad
Ld. Departmental Representative relied on the order of Ld. AO.
From the examination on record, in the light of aforesaid rival contention, it is crystal clear that ld. CIT(A) vide order dated 17.03.2025 confirmed partial allowance of exemption u/s 54 to the extent of Rs.35,00,000/- in place of Rs.7,01,41,842/-. The assessee had sold property B-480, Friends Colony as on 12.09.2014 in sale consideration of Rs.7.20 crores. The assessee entered into collaboration agreement with two persons
P a g e | Azizul Ghani (AY: 2015-16) Shri Khalid Riaz & Anisuddin for purchase of construction of another property A226, New Friends Colony, the assessee had to pay following amounts to Khalid Riaz Rs.75,00,000/- & Anisuddin Rs.75,00,000/- admitted cost of construction was Rs.6,00,00,000/-. The assessee claimed exemption u/s 54 amounting to Rs.7,01,41,842/-.
Ld. AO & ld. CIT(A) had not doubted the figures in the revised computation. Assessee had filed copy of collaboration agreement and details of transactions to purchase and construction which was corroborated with Bank statement and details etc. A final sale deed was submitted assessee was not confronted with inspectors report to suggest that construction was not completed within 3 years. Sale consideration was kept in bank saving account in HDFC page No. 85 of paper book. Details of construction expenses are page No. 117 with corresponding bank statement page No. 122 onwards. The details of document before the lower authorities are as under:
PB. Pg. Sale deed dt. 15.09.2014 9 Purchase deed dt. 26.09.2017 46/64 Copy of collaboration agreement 39 Details of payment made to Khalid Riaz for purchase 82-83
P a g e | Azizul Ghani (AY: 2015-16)
Details of payment made to Anisuddin for purchase 84 Bank statement showing above payments 85-116 Details of construction expenses 117-119 Bank statement showing construction expenses 120-147 Invoices of construction expenses in a separate PB.
The ld. AR has relied the Coordinate Bench case in titled as Philip Ghani Vs. DCIT in order dated 21.03.2024, the relevant part of the decision is reproduced as under:
“6. Heard rival submissions. The only issue to be decided is as to whether the assessee is entitled for deduction u/s 54 of the Act on the two properties sold by the assessee during the assessment year under consideration when the assessee has taken position of the constructed property after the date of sale of the two properties. Identical issue came up before the Hon’ble Madras High Court in the case of C. Aryama Sundaram Vs. CIT, Tax Case (Appeal No.520/2017) dated 06.08.2018, wherein the Hon’ble High Court held as under: - “19. The conditions precedent for exemption of capital gain from being charged to income tax are: (i) The assessee should have purchased a residential house in India either one year before or two years after the date of transfer of the residential house which resulted in capital gain or alternatively constructed a new residential house in India within a period of three years from the date of the transfer of the residential property which resulted in the capital gain. (ii) If the amount of capital gain is greater than the cost of the residential house so purchased or constructed, the difference between the amount of the capital gain and the cost of the new asset is to be charged under Section 45 as the income of the previous year. (iii) If the amount of the capital gain is equal to or less than the cost of the new residential house, the capital gain shall not be charged under Section 45.
P a g e | Azizul Ghani (AY: 2015-16)
What has to be adjusted and/or set off against the capital gain is, the cost of the residential house that is purchased or constructed. Section 54(1) of the said Act is specific and clear. It is the cost of the new residential house and not just the cost of construction of the new residential house, which is to be adjusted. The cost of the new residential house would necessarily include the cost of the land, the cost of materials used in the construction, the cost of labour and any other cost relatable to the acquisition and/or construction of the residential house.
A reading of Section 54(1) makes it amply clear that capital gain is to be adjusted against the cost of new residential house. The condition precedent for such adjustment is that the new residential house should have been purchased within one year before or two years after the transfer of the residential house, which resulted in the capital gain or alternatively, a new residential house has been constructed in India, within three years from the date of the transfer, which resulted in the capital gain. The said section does not exclude the cost of land from the cost of residential house.
It is axiomatic that Section 54(1) of the said Act does not contemplate that the same money received from the sale of a residential house should be used in the acquisition of new residential house. Had it been the intention of the Legislature that the very same money that had been received as consideration for transfer of a residential house should be used for acquisition of the new asset, Section 54(1) would not have allowed adjustment and/or exemption in respect of property purchased one year prior to the transfer, which gave rise to the capital gain or may be in the alternative have expressly made the exemption in case of prior purchase, subject to purchase from any advance that might have been received for the transfer of the residential house which resulted in the capital gain.
At the cost of repetition, it is reiterated that exemption of capital gain from being charged to income tax as income of the previous year is attracted when another residential house has been purchased within a period of one year before or two years after the date of transfer or has been constructed within a period of three years after the date of transfer of the residential house. It is not in dispute that the new residential house has been constructed within the time stipulated in Section 54(1) of the said Act. It is not a requisite of Section 54 that construction could not have commenced prior to the date of transfer of the asset resulting in capital gain. If the amount of capital gain is greater than the cost of the new house, the difference between the amount of capital gain and the cost of the new asset
P a g e | Azizul Ghani (AY: 2015-16) is to be charged under Section 45 as the income of the previous year. If the amount of capital gain is equal to or less than the cost of the new residential house, including the land on which the residential house is constructed, the capital gain is not to be charged under Section 45 of the said Act.”
Ratio of the decision squarely applies to the facts of the assessee’s case. We further observed that in the case of CIT Vs. Kapil Kumar Aggarwal (382 ITR 56) the Hon’ble Punjab & Haryana High Court held that section 54F of the Act, nowhere envisages that sale consideration obtained by the assessee from original capital asset is mandatorily required to be utilized for purposes of meeting cost of new asset. It was, therefore, held that where investment made by the assessee although not entirely sourced from capital gains but was within stipulated time and if more than capital gain earned by assessee, the assessee is entitled to exempt u/s 54F of the Act. Similar view has taken by the Hon’ble Kerala High Court in the case of ITO Vs. K C Gopalan (107 Taxman 591).
The Hon’ble Allahabad High Court in the case of CIT Vs. H.K. Kapoor (234 ITR 753) held that exemption on capital gains u/s 54 of the Act could be allowed notwithstanding the fact that the construction of new house had begun before the sale of the old house while holding so the Hon’ble High Court observed as under:
“2. The facts are that the assessee and his brother owned a residential house at Golf Link in moiety. The said property was sold on 10th July, 1963 for a sum of Rs.4,11,000/-. The ITO computed the capital gains from the sale of one half share of the assessee at Rs. 1,28,477 after allowing the initial exemption of Rs.5,000/-.
The assessee pleaded before the ITO that capital gains to the extent of being invested in the construction of a new house at Safdarjang Enclave, New Delhi was not taxable under s. 54 of the Act. Whereas the ITO accepted the contention that the Golf Link house had been used for the purpose of residence for more than two years before the sale, he rejected the contention of the assessee that the Safdarjang Enclave, New Delhi, house had been completed by the assessee within a period of two years from the date of sale of the Golf Link house. The ITO was, therefore, of the view that s. 54 of the Act was not applicable.
In the alternative, the assessee pleaded before the ITO that he started the construction of another residential house at 64 Surya Nagar, Agra on 10th March, 1963 and that came to be completed within two years of the sale of the Golf Link house and that the capital gains to the extent of being invested in the construction of the Surya Nagar house was not taxable under P a g e | Azizul Ghani (AY: 2015-16) s. 54 of the Act. The ITO, however, took the view that the assessee had started construction of this house prior to the sale of the Golf Link house. He, therefore, rejected the alternative contention too of the assessee.
On appeal, the AAC had agreed with the ITO.
On further appeal, the Tribunal reproducing s. 54 in its order found as follows: "A perusal of the above provision will show that it does not lay down that the construction of any house must be begun after the sale of the old residential house and that the sale proceeds of the old residential house must be used for the construction of the new residential house. We are, therefore, of the opinion that the assessee complied with the requirement of the s. 54 of the Act in respect of the construction of the house at 64 Surya Nagar, Agra and that he is entitled to the exemption out of the capital gains from the sale of the house at Golf Link to the extent of the cost of construction of the house at 64, Surya Nagar, Agra. We, therefore, direct the ITO to modify the assessment accordingly."
The question for consideration is whether exemption on capital gains could be refused to the assessee simply on the ground that the construction of the Surya Nagar, Agra house had begun before the sale of the Golf Link house. Similar question came up for consideration before the Karnataka High Court in the case of CIT vs. J.R. Subramanya Bhat (1987) 64 CTR (Kar) 286:(1987) 165 ITR 571 (Kar):TC 22R 219. In the case before the Karnataka High Court, the date of the sale of the old building was 9th Feb., 1977. The completion of the construction of the new building was in March, 1977, although the commencement of construction started in 1976. On these facts, the Karnataka High Court held that it was immaterial that the construction of the new building was started before the sale of the old building. We fully agree with the view taken by the Karnataka High Court. The Tribunal was right in holding that capital gains arising from the sale of the Golf Link house to the extent it got invested in the construction of the Surya Nagar house, will be exempted under s. 54 of the Act.
Coming to question No. 3, it will suffice to say that it is misconceived. The Tribunal did not record any finding that the assessee did not invest the capital gains in the construction of the new house. Exemption was refused for the simple reason that the assessee had started the construction of the Surya Nagar house before the sale of the Golf Link house. Therefore, the question that for availing the benefit under s. 54 of the Act it is not P a g e | Azizul Ghani (AY: 2015-16) necessary that the sale proceeds of the old building must be used in the construction of the new building was not before the Tribunal.”
In view of what is discussed above, respectfully following the decision of the Hon’ble Madras High Court in the case of C. Aryama Sundaram Vs. CIT (supra) and the decision of the Hon’ble Allahabad High Court in the case of CIT Vs. H.K. Kapoor (supra) we reverse the findings of the Ld. CIT(Appeals) and direct the AO to allow deduction u/s 54 of the Act as claimed by the assessee.”
In view of above materials facts by respectfully following judicial precedent impugned order dated 17.03.2025 of ld. CIT(A) and 22.12.2017 of Ld. AO are set aside. The grounds of appeal are allowed.
In the result, the appeal of the assessee is allowed.
Order pronounced in the open court on 03.02.2026