CA Rajesh Bhimrajka & CA Suchi Kothari
Allowability of exemption u/s. 54F if builder does not complete construction of house within three Years?
Realty has been one of the major investment options during the last decade. The investments in realty have grown by leaps and bounds during the last 10 years. This high trading in realty has lured lot of landlords and owners of huge properties to sell their existing assets and invest the same in a residential property. Here’s where the monster capital gains creeps in.
Mr. Sanghai had sold a commercial property, which was a long term asset and invested the same in purchase and construction of a flat in a apartment in Mumbai, within the one year of sale of asset and claimed deduction u/s 54F of income tax act, but later the builder has not completed the possession of the apartment within 3 years and the apartment remained under construction even after 3 years. The period of 3 years is lapsed without any mistake of Mr. Sanghai Now?
? Will Mr. Sanghai be levied tax on the capital gains derived from the sale of the commercial property (or)
? Will Mr. Sanghai be freed from the capital gains tax?
The exemption u/s 54F is for those assesses who gets long term gains on any asset other than house property and who uses all the sales consideration within a specified period for purchase or constructing a residential house. The specified period in case of house purchase is one year before or two years after the date of transfer of asset on which gains were made. However, for construction, section 54 provides, time limit of three years. Therefore, the case explained above gains all popularity here. What would be the plight of the assessee when the construction gets delayed for no fault of his?
While the plain reading and strict application of the provision u/s 54F compel one to think that exemption is not allowable in case of any delay beyond 3 years, higher judicial authorities have rescued taxpayers by giving relief in those cases where they found that most of the sales consideration have been spent for construction of house, still some portions were not complete for various reasons. The appellate authorities have taken the view that section 54F being relief provision, should be viewed in a bit of relaxed manner. We have given below few judgments in this regard which provides that exemption can be claimed even if construction is not completed within 3 years. However, remember the court needs to be satisfied that either full amount or most of the amount of sales consideration was already used. The decision has elaborated on the reasons why the CBDT issued circulars for such relief and that the word “institution ‘in the circular will include “builder”.
We will here discuss few case laws decided by various court to substantiate our view that exemption u/s. 54F can be claimed even if construction is not completed within 3 years but when substantial payment been made.
1. Assistant Commissioner of Income-tax, Circle 25(3) v. Smt. Sunder Kaur Sujan Singh Gadh. Brief facts of the case are, that the assessee had sold a residential flat No. 4 in Vasant Vihar, 14th Khar Road, Mumbai-52, for a total consideration of Rs. 41 lakhs as per agreement dated 13-1-1997. The said flat had been purchased by the assessee for a sum of Rs. 7.75 lakhs on 10-7-1992. As against the sale proceeds of Rs. 41 lakhs the assessee had invested a sum of Rs. 11,47,500 towards purchase of another residential house property at Ahmedabad. The builder M/s. Radhe Developers (India) Ltd., of Ahmedabad, Gujarat had, issued an allotment letter dated 26-2-1996 to the assessee allotting flat No. B-62 in the building names as Thirthdham and Rs. 11, 47, 500 were paid by the assessee to the developers in two instalments, i.e., Rs. 10 lakhs were paid on 5-1- 1996 and Rs. 1, 47,500 were paid on 12-1-1996 out of her capital account with M/s. Harmohan Singh Sujan Singh. Subsequently, the builder had not constructed the ‘B’-Block in Thirthdham in respect of which the allotment letter was issued by them to the assessee and as an alternative the membership of the assessee was shifted to flat No. C-32 in the same building. The possession of the said flat No. C-32 was handed over to the assessee before 4-1-2000 as is evident from the builder’s letters dated 19-11-1999 and 4-1-2000.
The decision of Tribunal was
To qualify investment for construction under section 54F the crucial date is the date of allotment of flat by DDA and payment of installments was only a follow-up action and taking possession of the flat is only a formality, of course, installments have to be paid by the allottee as per the schedule fixed by the DDA. The Board after referring to the above mentioned Circular extended the facility of exemption under sections 54 and 54F in respect of allotment of flats/house by co-operative societies and other institutions, and the allotment and construction of the flat by co-operative societies and other institutions are to be considered in similar manner for the purpose of allowing exemption under section 54. The above circulars are binding on the revenue authorities under section 119 of the Act. Since the flat has been allotted to the assessee by the builder who would fall in the category of other institutions mentioned in the circulars, it has to be taken as a case of construction of the residential flat and not as a purchase of a residential flat.
2. Mrs. Seetha Subramanian. vs Assistant Commissioner Of Income-Tax. [59 ITD 94] ITAT , Madras :- CIT , after enquiry by an Inspector found that the house is not completed and passed order u/s 263 by which he disallowed the claim of assessee u/s 54F ruled as under. Before the Tribunal, the contention of the assessee was that the provisions of section 54F is a beneficial provision for promoting the construction of residential houses. Therefore, the said provision has to be construed liberally and for achieving the purpose for which it was incorporated in the statute. In support of the said contention the assessee relied upon the decision in the case of Bajaj Tempo Ltd. The assessee also relied upon certain circulars issued by the CBDT. One of 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 clarification extending the same benefits for acquisition of houses or flats on allotment under similar schemes. Therefore it was contended that the intention of the Legislature was to invest in the acquisition of a residential house 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 very 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 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. Admittedly in the present case, the assessee had invested the entire net consideration within the stipulated period and in fact has even constructed the entire residential property, except some finishing to make it fit for occupation. As the assessee has substantially completed all the work of construction and has invested the entire net consideration, it has to be inferred that the assessee has complied with the conditions provided under section 54F.
3. A similar THIRD case was considered by the Delhi Bench of this Tribunal in the case of Satish Chandra Gupta v. Assessing Officer  54 ITD 508 and this Tribunal after considering the provisions of section 54 as well as section 55 held that the claim cannot be denied on the ground that the construction the house started by the assessee was not completed within the stipulated period of three years and some work was carried out thereafter. The said decision also supports the assessee’s contention. Under the above circumstances, especially in the light of the circulars issued by the Central Board of Direct Taxes, we hold that the Commissioner of Income-tax was not justified in revising the assessment of the Assessing Officer. Hence we set aside the order of the CIT and restore that of the Assessing Officer.
4. If assessee has acquired substantial domain over new house and has made substantial payment towards cost of construction within a period specified u/s. 54, then assessee can be said to have complied with requirements for claiming exemption u/s 54 even if construction of building is not completed within a specified period. (CIT vs. Hilla J.B. Wadia  216 ITR 376 (Bom)).
5. For qualifying exemption under section 54F, assessee’s ownership and domain over the asset is a must right from the sale of original asset till the purchase and/or construction of the residential house i.e., the “new asset. (Prakash v. ITO, ITA NO. 15 of 2002 Dated : September 12, 2008).
6. Section 54 nowhere requires that to avail exemption sale consideration itself should be utilised for purchase of new house [ITO vs. K. C. Gopalan –  107 Taxman 591 (Ker)].
7. Expression “a residential house” should not be understood to indicate a singular number. Assessee having purchased two residential flats, exemption under section 54 was available, more so as these flats are situated side by side and the builder as effected modification of the flats to make it as one unit. – (CIT v D. Ananda Basappa ( 2009 ) 20 DTR 266 (Kar)).
8. Board Cir. No. 471 dtd. 15.10.1986 (162 ITR (St) 41) has clarified that cases of allotment of flats under the self financing scheme of the Delhi Development Authority (DDA) should be treated as cases of ‘construction’ for the purposes of Ss. 54 and 54F.
9. Similarly, the Board Cir. No. 672 dtd. 16.12.1993 (205 ITR (St) 47) has clarified that allotment of flats/houses by co-op. societies and other institutions, whose schemes of allotment and construction are similar to those of DDA (as mentioned in para 2 of aforesaid Cir. No. 471), would be treated as ‘construction’ for the purposes of Ss. 54 and 54F.
10. Board Cir. No. 667 dt. 18.10.1993 (204 ITR (St) 103) has clarified that for the purpose of computing exemption u/s. 54 or 54F, the cost of the plot together with cost of the building will be considered as cost of new asset, provided the acquisition of the plot and also the construction thereon are completed within the period specified in these sections.
However in case of Commissioner of Income-tax v. Sardarmal Kothari  302 ITR 286 (Mad) 17.06.08 it was held that “Circular No. 667, dated October 18, 1993 does not in any way mean that in order to have the benefit under section 54F of the Income-tax Act, the construction should have been completed.”
11. Commissioner of Income-tax v. Ajitsingh Khajanchi  297 ITR 95 (MP) 25.04.07 : The judgment relied on by the assessee, was of the view that there was effective transfer of the flat in favour of the assessee, the same having been actually possessed by him. Therefore, merely on account of the absence of registered sale deed, the assessee was not disentitled to exemption under section 54F of the Act. It was not necessary that the assessee should have become the owner of the property. Section 54F spoke of purchase and registration was not imperative.
12. Commissioner Of Income Tax v. Mrs. Shahzada Begum :- The expression “purchased ” would undoubtedly connote the domain and control of the property given into the assessee’s hands. There might have been some procedural delay in obtaining formal registration of the sale deed. But, that, in our opinion, is immaterial.
13. Commissioner of Income-tax v. Sardarmal Kothari  302 ITR 286 (Mad) 17.06.08 :- Circular No. 667, dated October 18, 1993 does not in any way mean that in order to have the benefit under section 54F of the Income-tax Act, the construction should have been completed.
14. Commissioner of Income-tax v. R.L. Sood :- The assessee had paid a sum of Rs. 2,39,850 out of the total sale consideration of Rs. 2,75,000 for the purchase of the flat within the period of one year from the date of sale of his old residential house. Thus, on payment of a substantial amount in terms of the agreement of purchase dated September 25, 1981, i.e., within four days of the sale of his old property, the assessee acquired substantial domain over the new residential flat within the specified period of one year and complied with the requirements of section 54 of the Act. Merely because the builder failed to hand over possession of the flat to the asses see within the period of one year, the assessee cannot be denied the benefit of the said benevolent provision.
15. Balraj v. Commissioner of Income-Tax  254 ITR 22(Del) :- For the purpose of attracting the provisions of section 54 of the Income-tax Act, it is not necessary that the assessee should become the owner of the property. Section 54 of the said Act speaks of purchase.
16. Smt. Shashi Varma. v. Commissioner Of Income Tax: Section 54 of the Act of 1961 only says that within two years, the assessee should have constructed the house but that does not mean that the construction of house should necessarily be complete within two years. What it means is that the construction of house should be completed as far as possible within two years. In the modern days, it is not easy to construct a house within the time limit of two years and under the Government schemes, construction takes years and years. Therefore, confining to two years’ period for construction and handing over possession thereof is impossible and unworkable under section 54 of the Act. If substantial investment is made in the construction of house, then it should be deemed that sufficient steps have been taken and this satisfies the requirements of section 54.
The article is written by: CA Rajesh Bhimrajka & CA Suchi Kothari