Case Law Details
Shri Yogesh Jhingan Vs DCIT (Central) (ITAT Indore)
Since the addition in the instant appeal crops out of the issue referred above pertaining to A.Y. 2008-09, we will have to examine the correctness of the claim made by the assessee u/s 54F of the Act for A.Y. 2008-09. As far as sale of land is concerned it was sold vide deed executed on 28.12.2007, placed at pages 12 to 19 of the paper book. The stamp used for registering the sale documents are dated 28.12.2007. Both the parties have signed before registering authorities on 28.12.2007. For sale of this land an agreement was entered on 06.12.2007 and part payment of Rs.15,00,000/- was made. Since, the final payment was made on 28.12.2007 for all good reasons the date of sale of land is 28.12.2007.
Now for claiming deduction u/s 54F of the Act as made by the assessee in the revised return of income assessee is required to purchase the residential house within one year before the date of sale or two years after the date of sale or should have constructed residential house within three years from the date of sale. The assessee has claimed that it has purchased residential house within one year before the date of sale in the form of flat at Thane, Mumbai claimed to be purchased on 10.02.2007. The assessee has stated that the sale deed for purchase of residential flat is dated 12.12.2006 but the possession was given on 10.02.2007. This is the only point of difference between the revenue authorities and assessee. The revenue authorities have claimed that the flat was purchased on 12.12.2006 and assessee’s claim the date of purchased as 10.02.2007. From perusal of records we find that registered sale deed placed at pages 20 to 34 was executed on 12.12.2006 but on perusal of paper book pages 35 to 38 we find that the possession of the said flat was given to the assessee on 10.02.2007. The transfer of residential flat in favour of the assessee is completed only when the possession is given i.e. 10.02.2007. On adopting the date of purchase of flat on 10.02.2007 the assessee’s claim for section 54F of the Act would be valid as it is within one year.
We also find that the revenue authorities have adopted the date of sale of land on the basis of registered sale deed dated 28.12.2007 but have not considered the date of possession given by the assessee of the said land on 06.12.2007 but for the purchase of flat revenue authorities have adopted the date of purchase as the registered deed i.e. 12.12.2006 but not considered the date of possession of flat received by the assessee on 10.20.2007. If for sake of academic discussion the basis of possession of the immovable property is taken then also the assessee succeeds as the date of sale of land would be 06.12.2007 and purchase of flat would be 10.02.2007.
We, therefore, under the given facts and circumstances of the case, are of the considered view that the assessee has rightly claimed the deduction u/s 54F of the Act for purchase of residential flat on 10.02.2007 which is within one year from the date of sale of the land on 28.12.2007( when the total payment for sale of land was received) and since we have held the claim of section 54F of the Act for deduction against Long Term Capital Gain at Rs.22,99,270/- as valid, the impugned addition of not utilizing the deposit in Capital Gain Account Scheme will not stand for and therefore, the addition made by the Ld. Assessing Officer of Rs.22,99,270/- stands deleted.
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