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CIT Vs. Gita Duggal – Section 54/54F uses the expression a residential house. The expression used is not a residential unit. There is nothing in these sections which require the residential house to be constructed in a particular manner. The only requirement is that it should be for the residential use and not for commercial use.
On examining section 54 and 54F, we find that the provision contained u/s 54 including the proviso are parimateria with section 54F of the Act. The proviso to section 54 also lays down that if the amount of capital gain is not utilized towards construction of residential house within a period of 3 years from the date of transfer of original asset, then, it will be charged to capital gain u/s 45 of the Act in the year in which the period of three years from the date of transfer of the original asset expires.
Flat purchased by the assessee in the name of his wife out of the sale consideration of flat in the name of the assessee should be considered as allowable deduction u/s.54(2) of the Income Tax Act.
Section 54 and 54F apply under different situations. While sec. 54 applies to long term capital gain arising out of transfer of long term capital asset being a residential house, sec. 54F applies to long term capital gain arising out of transfer of any long term capital asset other than a residential house. However the condition for availing exemption under both the sections is purchase or construction of a new residential house within the stipulated period.
As held in D. Ananda Basappa’s case (1 supra) by the Karnataka High Court, the expression a residential house in Section 54 (1) of the Act has to be understood in a sense that the building should be of residential nature and a should not be understood to indicate a singular number
Sometime back, a query was raised whether the benefit of exemption under sections 54 and 54F of the Income-Tax Act, 1961 (the Act), in respect of long-term capital gains, on account of investment of such capital gains in the purchase / construction of a residential house in a foreign country, is available to an assessee, being a non-resident Indian.
In the instant case, the assessee has purchased the property jointly with her husband. She has invested the money in rural bonds jointly with her husband. It is nobody’s case that her husband contributed any portion of the consideration for acquisition of the property as well as bonds. The source for acquisition of the property and the bonds is the sale consideration. It is not in dispute. Once the sale consideration is utilized for the purpose mentioned under sections 54 and 54EC, the assessee is entitled to the benefit of those provision.
Notification No. 44/2012-Income Tax In exercise of the powers conferred by sub-section (2) of section 54, sub-section (2) of section 54B sub-section (2) of section 54D sub-section (4) of section 54F sub-section (2) of section 54G and sub-section (2) of section 54GB of the Income-tax Act, 1961 (43 of 1961), the Central Government hereby makes the following Scheme to amend the Capital Gains Account Scheme, 1988, namely:-
It has also been argued that under the provisions of tenancy agreement, assessee had right to bequeath the flat, sub-let/lease it and was also entitled to raise loan against the flat. The assessee had also right to make alteration in the flat and therefore, considering these factors and also the fact that the lease was perpetual, the assessee had to be considered as owner of the flat, entitled to exemption under section 54.
On a plain reading of the statutory provisions of section 54, it is clear that an agreement for sale or an agreement to sell itself does not create any interest or charge in such property. Mulla on ‘Transfer of Property Act’ clearly states that section 54 enacts that an agreement for the sale of land does not itself create an interest in land.
