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Income Tax Appellate Tribunal, DELHI BENCH “SMC” NEW DELHI
Before: SHRI B.P. JAIN
PER B.P. JAIN, ACCOUNTANT MEMBER:
This appeal of the assessee arises from the order of ld. CIT(A)-13, New Delhi vide order dated 27.05.2016 for the A.Y. 2010-11. The assessee has raised the following grounds of appeal:-
1. Ground no.1. Date of purchase of property taken as date of agreement and not date of booking. Despite noting the fact that the assessee has booked the property in F.Y. 1993-94 in para 9.1 of CIT (A) order, the CIT (A) erred in law in upholding the decision of Ld. Assessing Page 1 of 5
Officer of considering the date of agreement as date of purchase of property i.e. F.Y. 2004-05 instead of booking i.e. F.Y. 1993-94. Ground no. 2. Allowabilty of deduction u/s 54F in respect of investment in house property outside India. The ld. Commissioner of Income Tax (Appeals erred in law in upholding the disallowance made by the ld. A.O. of deduction claimed u/s 54F of the Income Tax Act, 1961, in respect of house property purchased outside India.
Ground no.3 General 1) The Assessing Officer being contrary to evidence and facts of the case should be amended or modified in the light of the ground deduced above. 2) The appellant crave leave to reserve to them the right to add to alter or amend the grounds at or before the time of hearing.”
It was argued by the ld. counsel for the assessee that the house was sold in Mumbai and was invested in purchase of the house in Dubai during the A.Y. 2010-11, whereas the amendment u/s 54F was brought in the A.Y. 2015-16 with effect from 1.4.2015, where the investment has to be made in India. He argued that the said amendment is not applicable in the present impugned year and therefore assessment made is bad in law.
The ld. CIT(A) confirmed the action of the A.O. the said capital gain taxable.
I have heard the rival contentions and perused the facts of the case. The appellant in the present case has sold the house in Mumbai and made the investment in purchasing the house in Dubai during the assessment year 2010-11, whereas the amendment in the Act has been brought during the A.Y. 2015-16 and therefore the same is not applicable to the impugned order. The case is fully covered by the decision of Coordinate Bench of Mumbai in the case of Dhun Jehan Contractor vs. ITO vide order dated 13.5.2015 of ITAT available at P.B. 16 to 20 and the relevant part is being reproduced here under:-
“The Finance (No.2) Bill, 2014 brought an amendment in Section 54, wherein sub-section (1), for the words “constructed, a residential house”, the words “constructed, one residential house in India” has to be substituted w.e.f. 1st day of April, 2015. Thus, it is clear from the amendment so brought for claiming exemption u/s 54, that new residential house should be constructed in India only w.e.f. assessment year 2015-2016. However, the assessment year under consideration is 2010-2011 i.e. much prior to the amendment so brought in Finance (No.2) Bill, 2014. There is no reason to decline exemption u/s 54 during A.Y. 2010-11 under consideration.” Page 3 of 5
In the circumstances and facts of the case the capital gains having been taxed by the Assessing Officer and confirmed by the ld. CIT(A) is bad in law and therefore the assessment so made is directed to be quashed and all the grounds of appeal are allowed.
In the result, the appeal of the assessee is allowed.
Pronounced in the open court on 07.03.2017.