DCIT 32(2), MUMBAI vs. POONAM ANIL DALMIA, MUMBAI

आदेश / O R D E R

Per Sandeep Gosain, Judicial Member:

Poonam Anil Dalmia, 1. "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing exemption u/s 54F of the I.T. Act of Rs.1,83,63,183/- to the assessee without appreciating the fact that no purchase agreement or registration was made and construction of the proposed building was not completed. The Ld. CIT(A) also failed to appreciate that in the section 54F of the I.T. Act, the words used are purchased and construction and not investment or advance.

2. "The appellant prays that the order of Ld. CIT(A) on the above grounds be set aside and that of the AO be restored."

3. The sole ground raised by the revenuerelates to challenging the order of Ld. CIT(A) in allowing exemption u/s 54F of the I.T. Act of Rs.1,83,63,183/- to the assessee without appreciating the fact that no purchase agreement or registration was made and construction of the proposed building was not completed. It was also challenged by the revenue that Ld. CIT(A) also failed to appreciate that in section 54F of the I.T. Act, the words used are ‘purchased’ and ‘construction’ and not ‘investment’ or ‘advance’.

Poonam Anil Dalmia, 4. We have heard the counsels for both the parties on this ground at length and we have also perused the material placed on record as well as the orders passed by revenue authorities. Before we decide the merits of the case, it is necessary to evaluate the orders passed by Ld. CIT(A). The Ld. CIT(A) has dealt with the above ground raised by the revenue in its detailed order in para no.

3. The operative portion of the order of Ld. CIT(A) is contained in para no. 3.3 to 3.7 of its order and the same is reproduced below:-

3.3 I have carefully gone through the assessment order as wen as the written submission of the AR and also studied the various case laws cited by the AR. From the facts of the case, it is clear that there is no dispute as far as the computation of capital gain is concerned. The AO has not doubted that long term capital gain has arisen in the case of the appellant. The AO has also not doubted the method and value of computation of gross long term capital gain. The only point of dispute is whether the assessee is entitled for deduction u/s 54F or not. On this issue also it has not been disputed by the AO that payment of Rs 1,95,00,000/- Poonam Anil Dalmia, has not been made by the appellant. The only contention of the AD is that the assessee has not 4uhased a residential house because the allotment letter issued by the builder is only a confirmation of investment done by the assessee by booking some space in the proposed building. The main reason for the conclusion reached by the AO is that the assessee has not acquired any rights over the property.

3.4. In modern times most of the purchases of residential houses are by way of purchase of flats. In bigger cities like Mumbai& Delhi an overwhelmingproportion houses constitute of flats which are units in aresidential block developed by some builder. As per market norms and practice the legal formalities of registration of property is never done at the time of allotment of a flat. But this cannot be interpreted to mean that abuyer who has made payments and who has been issued an allotment letter has not purchased the said residential flat. The letter of allotment is invariably the first stage of purchasing the residential flat from a builder. It is also important to note that on the basis of allotment of letter itself banks and financial institutions disburse loan to the buyer of flats. Therefore, in terms of market practice allotment letter is equivalent to purchase of flats. Further even if the purchase of residential flat is made by the assessee Poonam Anil Dalmia, for the purpose of investment there will be no change in entitlement of deduction u/s 54F.

3.5 The CBDT has issued circular no. 471 dated 15.10.1986 and also circular no. 672 dated 10.12.1993 taking the view that even allotment of the flat or house by state housing boards or cooperative societies would tantamount to purchase as on the date of allotment itself. The above two circulars were explained in Mrs. Seetha Subramanian v. ACIT [1996] 59 ITD 94 (Chennai - Trib.) with the following observations:

‘…The assessee also relied upon certain circulars issued by the CBDT. Oneof the circulars was [Circular No. 471, dated 15th October, 1986. This was issued by the CBDT clarifying the position that where an assessee acquires a flat by an allotment under the self-financing scheme of the Delhi Development Authority, the allotment itself is sufficient compliance for getting the benefit under section 54F, even though the assessee has not paid all the instalments due under the said scheme. Later by another Circular No. 672, dated 16th December, 1993, the CBDT has issued cation extending the same benefits for acquisition of houses or flats on allotment under similar schemes. Therefore, it was contended that Poonam Anil Dalmia, the intention of the Legislature was to invest in the acquisition of a residential use and completion of construction or occupation is not required. We find force in the argument of the learned counsel for the assessee. The said intention is yen,' clear from the two circulars issued by the CBDT, where it was held that an assessee is entitled to the benefit of sections 54 and 54F, if an assessee gets an allotment under the self-financing scheme and pays the first instalment of the cost of the construction. From that it is clear that in order to get the benefit under section 54F the assessee need not complete the construction of the house and occupy the same.. .

3.6 The same logic should apply to such cases as purchase of a flat to be construct under an agreement. It has been held by the Hon'ble Supreme Court of India in the case of CIT vs T N Arvind Reddy (1979) 120 ITR 46 (SC) that the purchase in the context of sec. 54 should be understood in a liberal sense without any undue restriction limiting the meaning to "lexical legalese". It has been held in the case of CIT vs Smt. BharatCKothari (2000) 244 ITR 352 (CAL) that if the entire amount has been invested within the period of Poonam Anil Dalmia, three years and theagreement of purchase itself has been made within 2 years the assessee was entitled to exemption. It has been held by the Bombay High Court in the case of CIT vs MrsHilla J.B. Wadia 216 ITR 276 that if a substantial amount has been paid within the relevant period then the benefit of sec. 54 will be relevant. Similar view has been expressed by the Bombay High Court in the context of sec. 54F in the case of CIT Vrs. Smt. Bina K. Jain 217 ITR 363. It has been held in the case of CIT Vrs. Smt B. S. Shanthakumari (2015) 60 Taxmann.com 74(Karnataka) that once it is established by the assessee that he was invested entire net consideration in construction of residential house within the stipulated period it would meet requirement of sec. 54F and the assessee would be entitled to get benefit of sec. 54F. It has been held in the case of CIT vrsSambandanUday Kumar (2012) 19 Taxmann.com (KAR) that sec. 54F is a beneficial provision for promoting construction of residential- house and therefore it has to be construed liberally for achieving purpose for which it was incorporated in the statute. It has also been held by the Karnataka High Court in this case that once it is demonstrated that consideration received on transfer of capital asset has been invested either in purchase or in construction of the residential Poonam Anil Dalmia, house, even though these transactions are not complete in all respects as required under law, same would not disentitle assessee from benefit of exemption under sec. 54F.

3.7 After considering the totality of facts and the legal position as discussed above, I have come to a conclusion that the appellant is entitled to benefit of deduction u/s 54F. The AO is accordingly directed to compute long term capital gain after allowing deduction u/s 54F. Grounds of appeal no. 2 is accordingly allowed.

After having gone through the facts of the present case as well as considering the orders passed by the revenue authorities and submissions made by both the parties, we find that the assessee being an individual has declared income from house property, capital gain and income from other sources. The assessee had purchased a residential property for a sum of Rs. 1,83,63,183/- and claimed exemption u/s 54F against the long term capital gain. AO rejected the claim of exemption u/s 54 F of Rs. 1,83,63,183/- against income from LTCG. However on appeal, the Ld. CIT(A) allowed the said exemption against which Poonam Anil Dalmia, the revenue has filed the present appeal. Ld. DR submitted before us that since the assessee has not entered into any agreement for sale or saledeed and he has not taken any possession of the space provided to him and thus in this way, the assessee has merely invested Rs. 1.95 crores towards space in the proposed building. Ld. DR also submitted that the said letter of allotment produced and relied upon by the assessee is nothing but a confirmation of advance which makes it, very clear that the assessee is not holding any right over the property and also he does not possess any right to transfer the said property. Thus clearly the conditions for claiming exemption u/s 54F are not satisfied and hence the same cannot be allowed to the assessee.

Poonam Anil Dalmia, 3. SmtRajneet Sandhu Vrs. DCIT(2010) 133 TTJ 0064(Chand. ITAT) 4. Shri KhemchandFagwaniVrs. ITO (ITA No. 7876/M/10) dated 10th Sept 2014 (Mum ITAT) 5. M/s Rajeev B.l Shah Vrs. ITO (ITA No. 262/M/15) dated 8th Jul 2016 (Mum ITAT) 6. Rathan B. Shetty Vrs. ACIT (ITA No. 253/M/13) dated 28th Oct. 2015(Mum ITAT) 7. Kishor H Galaiya (2012) 79 DTR 0201 (Mum ITAT)

We noticed that Ld. CIT(A) while dealing the said ground has correctly appreciated the facts of the case and has rightly concluded that the only contention of the AO while rejecting the exemption u/s 54F to the assessee is that the assessee has not ‘purchased’ a residential house because the ‘allotment letter’ issued by the builder is only a ‘confirmation of investment’ done by the assessee by booking some space in the proposed building. The AO also concluded that since the assessee has not acquired any right over the property, therefore he is not entitled for exemption u/s 54F of the I.T. Act.

Poonam Anil Dalmia, On the contrary, Ld. CIT(A) while deciding this ground has correctly relied upon the CBDT circular No. 471 dated 15.10.86 and also Circular No. 672 dated 10.12.93 wherein it has categorically been held that allotment of flat or house by State Housing Board or Cooperative Societies would tantamount to ‘purchase’ as on the date of allotment itself. Apart from above, Ld. CIT(A) has also relied upon the judgments passed by Hon’ble Supreme court in the case CIT vs T N Arvind Reddy (1979) 120 ITR 46 (SC) wherein it was held that the purchase in the context of sec. 54 should be understood in a liberal sense without any undue restriction limiting the meaning to "lexical legalese". In the case of CIT vs Smt. Bharat C Kothari (2000) 244 ITR 352 (CAL) wherein it was held that if the entire amount has been invested within the period of three years and theagreement of purchase itself has been made within 2 years the assessee was entitled to exemption. In the case of CIT vs MrsHilla J.B. Wadia 216 ITR 276 the Hon’ble Bombay High Court has held that if a substantial Poonam Anil Dalmia, amount has been paid within the relevant period then the benefit of sec. 54 will be relevant. Similar view has also been expressed by the Bombay High Court in the context of sec. 54F in the case of CIT Vrs. Smt. Bina K. Jain 217 ITR 363. In the case of CIT Vrs. Smt B. S. Shanthakumari (2015) 60 Taxmann.com 74(Karnataka) it was held that once it is established by the assessee that he was invested entire net consideration in construction of residential house within the stipulated period it would meet requirement of sec. 54F and the assessee would be entitled to get benefit of sec. 54F. In the case of CIT vrs SambandanUday Kumar (2012) 19 Taxmann.com (KAR) it was held that sec. 54F is a beneficial provision for promoting construction of residential- house and therefore it has to be construed liberally for achieving purpose for which it was incorporated in the statute.

Ld. CIT(A) while applying the same principles as laid down by the different High Courts including the jurisdictional High Court rightly concluded that as per the facts of the present Poonam Anil Dalmia, case, assessee is entitled to the benefit of deduction u/s 54F of the I.T. Act. No new facts or contrary judgments have been brought on record before us in order to controvert or rebut the findings so recorded by Ld CIT (A). Therefore, there are no reasons for us to interfere into or deviate from the findings so recorded by the Ld. CIT (A). Hence, we are of the considered view that the findings so recorded by the Ld. CIT (A) are judicious and are well reasoned. Resultantly, this ground raised by the revenue stands dismissed.