Flat purchased within 3 years from the builder when it was under construction: Whether Capital Gain Exemption available?

Flat purchased within 3 years from the builder when it was under construction: Whether Capital Gain Exemption available?

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Flat purchased within 3 years from the builder when it was under construction:

Whether Capital Gain Exemption available?

 

Here is a CBDT Circular which may be helpful for the taxpayers with LTCG.  It is circular No. 672 by CBDT Dated 16/12/1993. The same is reproduced hereunder:
Whether allotment of flats/houses by co-operative societies and other institutions, whose schemes of allotment and construction are similar to those of DDA, should be treated as cases of construction for purposes of sections 54 and 54F

1. 
Attention is invited to Board’s Circular No. 471, dated 15-10-1986.  It was clarified therein 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 sections 54 and 54F of the Income-tax Act.  The Board has since received representations that even in respect of allotment of flats/houses by co-operative societies and other institutions, whose schemes of allotment and construction are similar to those of Delhi Development Authority, a similar view should be taken.

2. The Board has considered the matter and has decided that if the terms of the schemes of allotment and construction of flats/houses by the co-operative societies or other institutions are similar to those mentioned in para 2 of Board’s Circular No. 471, dated 15-10-1986 (Sl. No. 428), such cases may also be treated as cases of construction for the purposes of sections 54 and 54F of the Income-tax Act.

Circular : No. 672, dated 16-12-1993.
Prior to that, there was a Circular No. 471 [F. No. 207/27/85-IT(A-II)], dated 15-10-1986 issued by the CBDT which is as under. 
Capital gains from long-term capital asset – Investment in a flat under the self-financing scheme of the Delhi Development Authority – Whether to be treated as construction for the purposes of capital gains

1.

Sections 54 and 54F provide that capital gains arising on transfer of a long-term capital asset shall not be charged to tax to the extent specified therein, where the amount of capital gain is invested in a residential house.  In the case of purchase of a house, the benefit is available if the investment is made within a period of one year before or after the date on which the transfer took place and in case of construction of a house, the benefit is available if the investment is made within three years from the date of the transfer.

2. The Board had occasion to examine as to whether the acquisition of a flat by an allottee under the Self-Financing Scheme (SFS) of the D.D.A. amounts to purchase or is construction by the D.D.A. on behalf of the allottee.  Under the SFS of the D.D.A., the allotment letter is issued on payment of the first instalment of the cost of construction.  The allotment is final unless it is cancelled or the allottee withdraws from the scheme.  The allotment is cancelled only under exceptional circumstances.  The allottee gets title to the property on the issuance of the allotment letter and the payment of instalments is only a follow-up action and taking the delivery of possession is only a formality.  If there is a failure on the part of the D.D.A. to deliver the possession of the flat after completing the construction, the remedy for the allottee is to file a suit for recovery of possession.

3. The Board have been advised that under the above circumstances, the inference that can be drawn is that the, D.D.A. takes up the construction work on behalf of the allottee and that the transaction involved is not a sale.  Under the scheme the tentative cost of construction is already determined and the D.D.A. facilitates the payment of the cost of construction in instalments subject to the condition that the allottee has to bear the increase, if any, in the cost of construction. Therefore, for the purpose of capital gains tax the cost of the new asset is the tentative cost of construction and the fact that the amount was allowed to be paid in instalments does not affect the legal position stated above. In view of these facts, it has been decided that cases of allotment of flats under the Self-Financing Scheme of the D.D.A. shall be treated as cases of construction for the purpose of capital gains.

 
Circular No. 471 [F. No. 207/27/85-IT(A-II)], dated 15-10-1986.
The same ratio can be applied to other flat purchase as well is what is the view of the most of the author. The same has been discussed in few judicial pronouncements as well.
In CIT v. Mrs. Hilla J.B. Wadia [1993] 69 Taxman 114 (Bom.), it was observed that the Board had stated in Circular No. 471, dated 15-10-1986 that when an allotment letter is issued to an allottee under this scheme on payment of the first instalment of the cost of construction, the allotment is final unless it is cancelled.  The allottee, thereupon, gets title to the property on the issuance of the allotment letter and the payment of instalments is only a follow-up action and taking delivery of possession is only a formality.  The Board has directed that such an allotment of flat under this scheme should be treated as cost of construction for the purpose of capital gains.
The above two circulars (dated 15-10-1986 and 16-12-1993) were explained in Mrs. Seetha Subramanian v. ACIT [1996] 59 ITD 94 (Mad. – Trib.) with the following observations :
“. . . 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 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. . . .” (p. 98)

In Smt. Shashi Varma v. CIT [1997] 224 ITR 106 (MP), the above circular was relied on, and the Court observed :

“This clinches the matter and it was not proper for the Tribunal to have ignored the circular because it has a persuasive value and it was in the nature of granting relief. Therefore, the Tribunal should have considered the circular sympathetically and granted the relief. . . “(p. 108)

There is one more important ruling on this issue by the Karnataka High Court in the case of M. George Joseph Vs DCIT [I.T.A. No. 238 of 2015 vide Order Dated 12/07/2021]. The brief facts of the case was as under:
1. The daughter of the assessee had entered into an agreement for purchase of a flat on 30.12.2006 with M/s Brigade Enterprises.
2. On 21.08.2008, the assessee transferred his shares in the company on which Long Term Capital Gain was offered.
3. Under an agreement entered on 18.03.2009, the flat was transferred in the name of the assessee and registered sale deed was executed in favour of the assessee on 28.03.2011.
4. The assessee had acquired the residential property viz., the flat under an agreement to sell in respect of undivided land and an agreement to build.
5. Capital Gain Exemption was denied to the assessee on the ground that payments were made prior to one year before the date of transfer of shares and therefore, the assessee is not entitled to claim exemption under Section 54F of the Act.
6. In appeal, Assessee pleaded that the case was a case of construction of a residential house.
7. The sale deed was executed in favour of the assessee within a period of three years from the date of transfer of shares i.e., on 28.03.2011, prior to three years from the date of transfer of shares i.e., 21.08.2008.
8. Assessee urged that since, the impugned order has been passed on misinterpretation of Section 54F of the Act, therefore, a substantial question of law arises for consideration in this appeal.
9. It was further pleaded by the assessee that the authorities under the Act ought to have examined the claim of the assessee whether or not the assessee had constructed a residential house within a period of three years from the date of transfer of original property.
10. It is further submitted that exemption under Section 54 of the Act is dependent on the date of acquisition of the property and not on the date of payment made in respect of such property. It is further submitted that to claim an exemption under Section 54F of the Act, it is not necessary that the same sale consideration should be used for construction of a new house property.
11. It was further argued that Section 54F of the Act is a beneficial provision, which has been enacted with an object to promote investment in housing and enable the assessee to save tax on capital gains.
12. It is a well settled rule of interpretation that benevolent provision should be interpreted liberally bearing in mind the object for which the provision is enacted. Thus, from narration of aforementioned facts, it is evident that the assessee had complied with the conditions stipulated under Section 54F of the Act and was entitled for exemption.
13. The court concluded as under”
Therefore, the finding recorded by the tribunal that since, payments were made prior to one year before the date of transfer of shares and therefore, the assessee is not entitled to claim exemption under Section 54F of the Act cannot but be termed as perverse.
The copy of the complete order is as under:
Karnataka High Court
M.George Joseph Vs DCIT
I.T.A. No. 238 of 2015
Order Dated 12/07/2021
This appeal under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as the Act for short) has been preferred by the assessee. The subject matter of the appeal pertains to the Assessment year 2009-10. The appeal was admitted by a bench of this Court on the following substantial question of law:
“Whether the Income Tax Appellate Tribunal is justified in law in confirming the order passed by the first Appellate Authority and Assessing Officer that the appellant is not entitled to exemption of Rs. 88,98,970/- under Section 54F of the Act even though all the mandatory requirements and conditions were fulfilled on the facts and circumstances of the case?”
  1. Facts leading to filing of this appeal briefly stated are that the assessee is an individual. The assessee was a shareholder in two companies viz., Pearl Insulation Pvt. Ltd. And M/s Pearl Metal Products Pvt. Ltd. The assessee had transferred the shares held by him in the aforesaid companies on 21.08.2008 resulting in Long Term Capital Gains. The assessee filed return of income on 31.07.2009 for the Assessment Year 2009-10 and declared total income of Rs.28,39,63,455/- and claimed exemption under Section 54F of the Act to the extent of Rs.88,98,970/- on account of acquisition of a new residential house property vide registered sale deed dated 28.03.2011. The return was selected for scrutiny. The Assessing Officer by an order dated 16.12.2011 inter alia held that assessee had computed Long Term Capital Gain of Rs.26,88,34,949/- under Section 54 of the Act in respect of an investment made in acquiring a new residential house property to the extent of Rs.88,98,970/-. The Assessing Officer held that investment made by the assessee does not fall within purview of Section 54F of the Act and disallowed the claim and added the amount to the returned income.
  2. The assessee thereupon filed an appeal before the Commissioner of Income Tax (Appeals), which was dismissed by an order dated 16.09.2013. The assessee challenged the aforesaid order before the Income Tax Appellate Tribunal (hereinafter referred to as ‘the tribunal’ for short). The tribunal by an order dated 13.02.2015 dismissed the appeal preferred by the assessee. In the aforesaid factual background, this appeal has been filed.
  3. Learned Senior counsel for the assessee submitted that daughter of the assessee had entered into an agreement with M/s Brigade Enterprises on 30.12.2006 for construction of a new flat and made payments to the builder. The aforesaid allotment of the flat was transferred in favour of the assessee on 18.03.2009 and the flat was registered in the name of the assessee on 28.03.2011 i.e., prior to three years from the date of transfer of shares i.e., 21.08.2008. It is also submitted that in order to claim exemption under Section 54F of the Act, the assessee had to construct a residential house within three years from the date of transfer of original asset. It is also urged that case of the assessee was a case of construction of the property and not mere purchase. In support of aforesaid submission, reliance has been placed on Circulars dated 15.10.1986 and 16.12.1993 issued by Central Board of Directors. It is also urged that since, the impugned order has been passed on misinterpretation of Section 54F of the Act, therefore, a substantial question of law arises for consideration in this appeal. In support of aforesaid submissions, reliance has been placed on decisions in ‘BAJAJ TEMPO LTD. VS. CIT’, (1992) 196 ITR 188 (SC), ‘CIT VS. GWALIOR RAYON SILK MANUFACTURING CO. LTD.’, (1994) 196 ITR 149 (SC) and decisions in ‘CIT VS. SMT. BRINDA KUMARI’, (2002) 253 ITR 343 (DEL.), ‘CIT VS. MRS. HILLA .7.B.WADIA’, (1995) 216 ITR 376 (BOM.), ‘CIT VS. SAMBANDAM UDAYKUMR’, (2012) 345 ITR 389 and ‘CIT VS. SADARMAL KOTHARI’, (2008) 302 ITR 286 (MAD.).
  4. On the other hand, learned counsel for the revenue submitted that all the authorities under the Act have held that assessee has not satisfied the conditions prescribed in Section 54F of the Act and is therefore, not entitled to benefit of the aforesaid provision. The aforesaid findings are based on appreciation of evidence on record. It is also pointed out that no plea has been taken by the assessee in the appeal that the findings recorded by the authorities are perverse or authorities have invoked any material available on record. Therefore, no substantial question of law arises for consideration in this appeal. It is also submitted that Assessing Officer as well as Commissioner of Income Tax (Appeals) in para 3.2 to 3.4 and tribunal in para 5.5.1 to 5.5.4 have assigned detailed reasons for denying the claim of the assessee under Section 54F of the Act. It is also urged that exemption clause should be interpreted strictly. In support of aforesaid submissions, reference has been made to ‘COMMISSIONER OF CUTOMS (IMPORT), MUMBAI VS. DILIP KUMAR & CO’, (2018) 68 GST 39, ‘JAI NARAYAN VS. INCOME TAX OFFICER’, 306 ITR 335 (P & H), ‘PRAKASH VS. INCOME TAX OFFICER & ORS’, 312 ITR 40 (MUMBAI) and ‘VIPIN MALIK (HUF) VS. COMMISSIONER OF INCOME TAX’, (2009) 330 ITR 0309 (DEL).
  5. We have considered the rival submissions and have carefully perused the record. Before proceeding further, it is apposite to take note of relevant extract of Section 54F of the Act, which reads as under:
Capital gain on transfer of certain capital assets not to be charged in case of investment in residential house.
54F(1) Subject to the provisions of sub-Section (4), where, in the case of an assessee being an individual or a Hindu undivided family, the capital gain arises from the transfer of any long term capital asset, not being a residential house (hereafter in this section referred to as the original asset), and the assessee has within a period of one year before or two years after the date on which the transfer took place purchased, or has within a period of three years after that date constructed, one residential house in India] (hereafter in this Section referred to as the new asset), the capital gain shall be dealt with in accordance with the following provisions of this section, that is to say –
(a) if the cost of the new asset is not less than the net consideration in respect of the original asset, the whole of such capital gain shall not be charged under Section 45
(b) if the cost of the new asset is less than the net consideration in respect of the original asset, so much of the capital gain as bears to the whole of the capital gain the same proportion as the cost of the new asset bears to the net consideration, shall not be charged under Section 45.
  1. Thus, it is evident that assessee within a period of one year before or two years after the date on which transfer took place, purchases or has within a period of three years after that date, constructs a residential house, he is entitled to the benefit under Section 54F of the Act.
  2. In the instant case, the daughter of the assessee had entered into an agreement for purchase of a flat on 30.12.2006 with M/s Brigade Enterprises. On 21.08.2008, the assessee transferred his shares in the company on which Long Term Capital Gain was offered. Thereafter, under an agreement, on 18.03.2009, the flat was transferred in the name of the assessee and thereafter a registered sale deed was executed in favour of the assessee on 28.03.2011. The assessee had acquired the residential property viz., the flat under an agreement to sell in respect of undivided land and an agreement to build, thus, the instant case was a case of construction of a residential house. The sale deed was executed in favour of the assessee within a period of three yeas from the date of transfer of shares i.e., on 28.03.2011, prior to three years from the date of transfer of shares i.e., 21.08.2008. Therefore, the authorities under the Act ought to have examined the claim of the assessee whether or not the assessee had constructed a residential house within a period of three years from the date of transfer of original property. It is also pertinent to note that exemption under Section 54 of the Act is dependent on the date of acquisition of the property and not on the date of payment made in respect of such propertyIt is also noteworthy to mention thatto claim an exemption under Section 54F of the Act, it is not necessary that the same sale consideration should be used for construction of a new house property.It is also noteworthy that Section 54F of the Act is a beneficial provision, which has been enacted with an object to promote investment in housing and enable the assessee to save tax on capital gains. It is a well settled rule of interpretation that benevolent provision should be interpreted liberally bearing in mind the object for which the provision is enacted. Thus, from narration of aforementioned facts, it is evident that the assessee had complied with the conditions stipulated under Section 54F of the Act and was entitled for exemption. Therefore, the finding recorded by the tribunal that since, payments were made prior to one year before the date of transfer of shares and therefore, the assessee is not entitled to claim exemption under Section 54F of the Act cannot but be termed as perverse.
For the aforementioned reasons, the substantial question of law is answered in the negative and in favour of the assessee. In the result, order of the tribunal dated 13.02.2015 insofar as it pertains the findings in relation to claim of the assessee under Section 54F of the Act are hereby quashed.
In the result, appeal is allowed

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