Capital gains exemption on purchase of new property before sale of original asset & Completion of construction within three years

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Capital gains exemption on  purchase of new property before sale of original asset & Completion of construction within three years

Overview:

As assessee had acquired the property and completed construction within the period of limitation, the assessee was duly entitled to claim deduction under section 54.

CIT noticed that property on which capital gains exemption under section 54 was claimed was acquired before sale of original asset. Accordingly, CIT took the view that assessee was not entitled for deduction under section 54. Assessee’s case was that purchase of the new site as well as completion of construction was within the period of 3 years was available for claiming the deduction under section 54.

It is held that an Assessee is entitled to claim deduction under section 54 from capital gains resulting on transfer of residential property for purchase of new house or for construction of new residential house. In case of purchase of new residential house time line is to be acquired before one year from the date of sale or within two years after sale of residential house. In case of construction, it should be completed within three years from the date of transfer of property. In the instant case. Assessee had acquired the property and completed construction within the period of limitation, the assessee was duly entitled to claim deduction under section 54.

Decision: In assessee’s favour.

IN THE ITAT, VISAKHAPATNAM BENCH

  1. DURGA RAO, J.M. & D.S. SUNDER SINGH, A.M.

Gandraju Prabhavathi v. Pr. CIT

ITA No. 512/Viz/2017

6 November, 2018

Assessee by: R.Venkata Raman, Authorised Representative

Revenue by: D.K.Sonowal, Departmental Representative

ORDER

D.S. Sunder Singh, A.M.

This appeal is filed by the assessee against the order of the Principal Commissioner (Pr. Commissioner)-1, Visakhapatnam vide F. No. Principal Commissioner-1/VSP/263/2016-17 dated 31-3-2017 for the assessment year 2010-11.

  1. All the grounds in this appeal are against the order passed by the learned Principal Commissioner under section 263 of the Income Tax Act, 1961 (hereinafter called as ‘Act’). In this case, the assessee filed return of income on 8-9-2010 disclosing total income of Rs. 1,57,220 and agriculture income of Rs. 80,000. The assessing officer (AO) reopened the assessment under section 147 and taken up the case for scrutiny and completed the assessment under section 143(3) read with section 147 of the Act, accepting the income returned. Subsequently, the learned Principal Commissioner has taken up the case for revision and found that the assessee has sold the site admeasuring 300 sq. yards together with RCC slabbed building thereon situated at Vidyuthnagar, Visakhapatnam to four persons namely (i) Mr. Vaziruddin Ahmed Sidduiqi (ii) Mr. Habibuddin Ahmed Jafri (iii) Mr. Iqbal Hussain Farooqui and (iv) Mr. Javvad Ahmed Qureshi, all being the residents of Lawsons Bay Colony, Visakhapatnam by sale deed document No. 71/2010 dated 15-1-2010 for a consideration of Rs. 99,45,000. The market value of the property was also of the same consideration. The assessee claimed the deduction under section 54 of the Act for acquiring the new property or asset. The assessee acquired vacant site admeasuring 350 sq. yards situated at Akkayyapalem from Sri K. S. N. Murthy vide document No. 2064/2008, dt. 25-9-2008 for a consideration of Rs. 65,45,000. In the return of income filed for the assessment year 2010-11, the assessee claimed the cost of the new property including the cost of the land and the cost of construction of house at Rs. 1,01,49,000 as deduction under section 54 of the Act. The learned Principal Commissioner has taken up the case for revision and observed that the assessee had sold the property by sale deed dated 15-1-2010 and the investment for acquiring the land was made by sale deed document dated 25-9-2008 prior to the sale of the impugned property, hence the learned Principal Commissioner was of the view that the assessee is disentitled for deduction under section 54 of the Act and thus issued the notice under section 263 and called for the explanation of the assessee. In response to the notice the assessee submitted before the learned Principal Commissioner stating that she had entered into Memorandum of Understanding (MoU) on 29-6-2008 with the 4 buyers of the said property. As per the MOU, the four buyers have agreed to purchase the property of the assessee situated at Vidyuth Nagar, Visakhapatnam for the sale consideration of Rs. 99,45,000 and offered other property in exchange, located at Akkayyapalem belonging to Shri K. S. N. Murthy. Further, the buyers offered to pay the cost of acquisition of the new property on behalf of the assessee, from out of loan funds proposed to be raised from banks and also help in construction. Subsequently, the assessee acquired the vacant site admeasuring 350 sq. yards situated at Akkayyapalem, Visakhapatnam from Sri K. S. N. Murthy for a sum of Rs. 65,45,000 and completed construction within the period of three years provided in the Act. The assessee argued before the learned Principal Commissioner that the new residential house was constructed within the stipulated time provided under section 54 of the Act, hence, the capital gains arising on sale of the residential house would be entitled for deduction under section 54 of the Act for acquiring the new property and requested drop the proceedings under section 263.
  2. The learned Principal Commissioner observed that the Memorandum of Understanding (MoU) entered by the vendor with the vendees was dated 29-6-2008 which is unregistered and there was no mention of the said MoU in the sale deed registered vide document No. 71/2010 on 15-1-2010. As per the registered sale deed dated 15-1-2010, the possession of the property was delivered to the vendees on 15-1-2010 which is a very important condition laid down for ‘transfer’ under the Transfer of Property Act. The learned Principal Commissioner also observed that the value of the properties has undergone change from 1-8-2009 by the Revenue Department of Andhra Pradesh. The vendor and the vendees have arrived at exact market value of the property of Rs. 99,45,000 which is the value in 2010 but not in the year 2008, the year of executing the MoU. Therefore, the learned Principal Commissioner viewed that the MoU is back dated and an after thought to claim undue deduction under section 54 of the Act. Therefore, the learned Principal Commissioner held that the assessee has not satisfied the conditions laid down under section 54 of the Act to claim the deduction under section 54 of the Act, since, the property on which the capital gains exemption was claimed was acquired before the sale of the impugned property thus viewed that the assessee is not entitled for deduction under section 54 of the Act. Accordingly, held that the assessment order passed under section 147 read with section 143(3) dated 27-3-2015 was erroneous and prejudicial to the interest of the revenue. The learned Principal Commissioner set aside the assessment order passed under section 147 read with s 143(3)dated 27-3-2015 and directed the assessing officer to redo the assessment as per law.
  3. Aggrieved by the order of the assessing officer, the assessee is in appeal before this Tribunal.
  4. During the appeal hearing, the learned Authorised Representative argued that in this case, the assessment was reopened under section 147 for the purpose of verification of capital gains which is evident from the assessment order. A notice under section 148 was issued by the assessing officer and the assessee furnished the complete details before the assessing officer. The learned Authorised Representative invited our attention to the notice issued under section 142(1) of the Act dated 12-6-2014, where in the assessing officer has called for the details of the immovable property, transactions done during the year with the copies of the documents in question No. 13. In question No. 14, the assessing officer has called for the details of all immovable properties held by the assessee as well as the family members. The learned Authorised Representative referring to page No. 13 of the paper book submitted that vide letter dated 10-7-2014, which was received by the assessing officer on 11-7-2014, the assessee has furnished the complete details, background of the case, details of the sale transaction, the taxability of capital gains, computation of capital gains, legal position of agreement to sale, the MOU and the allowability of deduction under section 54 of the Ac. When the jurisdiction was changed the assessee reiterated the submissions vide letter dated 2-12-2014, which is placed on page No. 20 of the paper book. After going through the entire information, explanation furnished by the assessee, the assessing officer completed the assessment under section 143(3) read with section 147 accepting the income returned. The assessing officer after verifying the complete details, has taken a conscious decision to allow the capital gains deduction under section 54 of the Act, therefore, argued that there is no error committed by the assessing officer, thus invoking jurisdiction under section 263 is bad in law and required to be quashed.

5.1. On merits, the learned Authorised Representative argued that the assessee had entered into MoU on 29-6-2008 for sale of property as explained before the assessing officer as well as the Principal Commissioner. Because of the compulsions and pressures, the assessee had no option except to sell the impugned property to the vendees by MoU dated 29-6-2008. Vendees have agreed to pay the consideration of Rs. 99,45,000 for acquiring the new asset and it was not an after thought. They have agreed to assist in construction of the new building. Accordingly, the assessee was paid the sale consideration and acquired the new asset with the funds arranged by the buyers. Therefore, requested to reckon the date of transfer as 29-6-2008 which is the date of MoU. The assessee has sold the property vide MOU dated 29-6-2008 and registered the sale deed on receipt of full payment on 15-1-2010. Though there were some mismatching in dates, since, the assessee has constructed the new residential house within 3 years from the date of entering into sale agreement and completed the construction, the learned Authorised Representative argued that the intention of the legislature to encourage the housing has satisfied and there is no prejudice caused to the revenue, hence requested to allow the deduction under section 54 of the Act.

5.2. Even otherwise, the learned Authorised Representative submitted that as per the provisions of section 54 of the Act, for claiming deduction under section 54, the assessee is required to construct residential house within 3 years from the date of transfer of the property. In the instant case, the assessee has constructed the property within the three years period and there is no prejudice caused to the department. Having constructed the property within 3 years period of time, the assessee satisfied the conditions laid down for making the deduction under section 54 of the Act. Therefore argued that the assessee is entitled for deduction under section 54 and accordingly requested to quash the order passed by the learned Commissioner under section 263. The learned Authorised Representative relied on the decision of Hon’ble Madras High Court (2018) 97 taxmann. com 74 (Madras) in the case of C. Aryama Sundaram v. CIT-3, wherein Hon’ble High Court held that not only the cost of construction of new property incurred after sale of old property would be eligible for exemption under section 54, but also cost of land on which new property was constructed, even if such land had been purchased three years prior to sale of old property. Similarly, this Tribunal in the case of Dy. CIT, Circle-2(1), Vijayawada v. Dr. Chalasani Mallikarjuna Rao (2016) 75 taxmann. com 270 held that in order to claim deduction under section 54, date of commencement of construction of house property is irrelevant and thus construction may be commenced even before transfer of asset.

  1. On the other hand, the learned Departmental Representative relied on the order of the Principal Commissioner as well as provisions of section 54 of the Act and argued that there is no error in the order passed by the Principal Commissioner and requested to upheld the order of the Principal Commissioner.
  2. We have heard both the parties and perused the material placed on record. Ground No. 1 and 4 of the Grounds of Appeal are related to the issue of invoking the jurisdiction by the Principal Commissioner under section 263 of the Act. In this connection, the learned Authorised Representative argued that the assessing officer has completed the assessment and allowed the deduction under section 54 after making detailed enquiries with regard to the allowability of the deduction under section 54 of the Act, thus there is no error in the order passed by the assessing officer, hence there is no case for invoking the jurisdiction under section 263 of the Act. Perusal of the assessment order shows that the case was reopened under section 147 of the Act for the purpose of verification of long term capital gains in respect of the sale of property located at Vidyuth Nagar, for a sum of Rs. 99,45,000 on 15-1-2010. The assessing officer has called for the details, verified the details and after verification of the various submissions, allowed the deduction under section 54 claimed by the assessee and completed the assessment accepting the return of income. The assessing officer issued notice under section 142(1) on 12-6-2014, furnished at page No. 11 of the paper book. In the notice issued under section 142(1), in question No. 13, the assessing officer called for the details of all immovable property transactions made by the assessee during the previous year relevant to the assessment year under consideration. As per page No. 13 of the paper book, vide letter 10-7-2014, the assessee furnished the complete details with regard to the sale of the property, allowability of the long term capital gains, deduction claimed under section 54. The assessee in her explanation also stated that as per the MoU dated 29-6-2008, the buyers agreed to facilitate the acquisition of the residential house in exchange for the impugned property. Both the purchase and sale transactions were meant to be facilitated simultaneously and also argued that as per law it is not mandatory to register the MoU. The assessee has paid the sum of Rs. 65,45,000 to the owner of the new asset on 25-9-2008 which was arranged only by the buyers as per MOU, vide cheque drawn Kanakamahalakshmi Cooperative Bank. The assessee further stated that the entire sale consideration was received by the assessee on 25-9-2008 on the date of registration of new site along with cash of Rs. 31,00,000 to fund the cost of construction from the buyers Hence, the sale for all practical purposes was completed on 25-9-2008 itself. The buyers of the land and the parties for MoU are one and the same. Thus, argued that the date of MoU should be reckoned for the transfer of the property. As per the date of MoU, the purchase of the new site as well as the completion of construction was within the period of 3 years which is the time available for claiming the deduction under section 54. The assessee explained the provisions of section 54 and also relied on the various decisions to support of her claim including the decision of Hon’ble Supreme Court in the case of Sanjeev Lal v. CIT 46 taxmann. com 300 (SC)for the purpose of section 2 (47)/54, CIT v. Sambandam Udaykumar (2012) 19 taxmann.com 17 (Kar), CIT v. Shahzada Begum (1988) 38 taxman 311 (AP), RL Sood v. ITO (1994) 49 TTJ 282 (Del ‘B’Bench) : 1994 TaxPub(DT) 0223 (Del-Trib), Sri Rajaram v. ITO (1986) 19 ITD 141 (Hyd-Trib) : 1986 TaxPub(DT) 1672 (Hyd-Trib) and the CBDT Circular No. 538 dated 13-7-1989.

7.1. For the sake of clarity and convenience, we extract relevant part of the submissions made by the assessee before the assessing officer which reads as under :–

“With reference to the above-mentioned reassessment proceedings, the undersigned (“Assessee’) wishes to reiterate as under :–

  1. Background of Case
  2. The Assessee (who is the VENDOR) had purchased a plot during financial year 1983-84 admeasuring 300 sq. yds (or 250. 84 sq. mtrs) situated at Plot No. 5 (part) covered by S. No. 542/2A & 2C in TP No. 26/27, Akkayyapalem and thereupon constructed a residential house during financial year 2004-05 (“PROPERTY”) being D. No. 49-55-1A, Vidyuth Nagar, Akkayyapalem, Visakhapatnam – 530 016. She has been residing there since then.
  3. In June 2008, four brothers namely M/s. V. A. Siddiqi, H. A. Jafri, I. H. Farooqui & J. A. Qureshi (‘BUYERS”) who are known to the Assessee, approached her and expressed their desire to acquire the aforesaid Property owned by the Assessee and offered another site which had a slightly larger extent (hereinafter referred to as “NEW PROPERTY” in exchange located in the vicinity and identified by the buyers The reason why the Buyers were persistent was on account of Vaastu reasons and also the fact that they owned the adjacent plots and sought to make a composite block to enhance the value of the site. Initially, the Assessee was reluctant on the exchange deal but on persuasion, finally relented and agreed to accept the identified second site in exchange which was owned by one Sri K. S. N. Murthy. When the Assessee expressed her inability to raise funds even for a temporary period, the Buyers offered pay for the cost of acquisition of the New Property on behalf of Assessee from out of loan funds proposed to be raised from banks and also help in funding the cost of construction. In short, the financial commitment of the Assessee in the whole gamut of transactions was practically ‘Nil”.
  4. Accordingly, the Assessee entered into a binding Memorandum of Understanding (MOU) dated 29-1-2008 with the Buyers wherein the latter agreed to facilitate acquisition of a residential house in exchange for the Property. Both purchase and sale transactions were meant to be to be facilitated simultaneously. It may be noted that under law, it is not necessary to register an MOU- although it is a legally enforceable document under the Law of Contract.
  5. The Assessee then acquired the new property through a sale deed 25-9-2008 and the consideration was paid to the owner Sri K. S. N. Murthy for Rs. 65.45 lacs arranged wholly by the Buyers vide Cheques drawn on Kanakamahalakshmi Cooperative Bank (the Buyers bankers details given in the Purchase Document). The buyers had initially arranged funds from out of their own resources and had proposed to formalize the transaction by executing registration of sale deed of the Property after availing a housing loan from bank.
  6. Consequent on payment of sale consideration by the Buyers in the form of direct payment to Sri K. S. N. Murty, the Assessee took possession of the new property and simultaneously handed over physical possession of her own property to the Buyers. The Assessee (with the help of plan approval secured by the site owner) then began construction of the house and was ready for occupation around Apr 2010.
  7. Meanwhile, although the Assessee received the full sale consideration from the Buyers (in the form of title of new property) both in the form of consideration paid to new property owner as well as cost of construction and, therefore, the transaction for all practical purposes was complete by Sep 2008 itself; yet on account of an inordinate delay in arranging the housing loan on the part of buyers, the actual registration could materialize only on 15-1-2010. Consequent to the sale deed, the Assessee received additional funds from the Buyers (on account of sanction of housing loan) and soon refunded back the amount to the buyers–since she had already received the funds earlier.
  8. It is emphasized here that the entire sale consideration was received by the Assessee on 25-9-2008 on date of registration of the new site along with cash of Rs. 31 lacs to fund the cost of construction along with from the Buyers and hence, the sale deed for all practical purposes was complete on 25-9-2008 itself. In the instant case, the buyer and de-facto sellers are the same. As soon as the MOU was entered into and the Assessee purchased the new property, the Assessee had handed over her property to the Buyers thereby fulfilling specific performance. In other words, both sale of assessee’s residential house as well as purchase of new house were carried out simultaneously and legal conveyancing by way of execution of sale deed in favour of Buyers was only a matter of mere legal formality.
  9. Filing Return/Mistake Apparent on Record
  10. The Assessee had filed her return of income for assessment year 2010-11 declaring a total income of Rs. 1,57,220 (net of agricultural income) and had disclosed the sale of residential house and claimed deduction under section 54 of Income Tax Act 1961. I had attached an explanatory note giving details of cost of new house at the time of filing return & submitted copies of the following :–
  11. Sale Deed of Property in favour of buyers —
  12. Sale Deed for acquisition of new property

iii. Cash receipt for Rs. 31 lacs received from Buyers-to fund the construction of new house

  1. Bank statement, Memorandum of Understanding dt 29-6-2008 between Assessee & Buyers etc. —
  2. The learned assessing officer had issued a notice under section 148 seeking reassessment and the Assessee had replied that the original return filed could be treated as compliance with notice.
  3. However, subsequently, the Assessee on seeking professional help, detected a glaring mistake apparent on record in her return. In Schedule CG of her return for assessment year 2010-11, the assessee while computing long-term capital gains had erroneously shown the gross consideration instead of deducting the indexed cost of acquisition/improvements which is eligible towards reinvestment claim under section 54. It may be noted that the Assessee had purchased her house site in Nov 1983 and had constructed one floor admeasuring about 1344 sq ft during financial year 1985-86. Subsequently, in financial year 1994-95 she had constructed the first floor consisting of 1344 sq ft in addition to back yard shed of about 189 sq. ft. The cost of land was Rs. 26,500 (including registration cost) and the construction cost was approx. Rs. 2,35,200 and Rs. 3,02,400 (for ground floor & first floor respectively).
  4. Section 54 for the relevant assessment year reads as under :–

Profit on sale of property used for residence.–54. ((1)) (Subject to the provisions of sub-section (2) where, in the case of an assessee being on individual or Hindu undivided family), the capital gain arises from the transfer of a long-term capital asset being buildings or” lands appurtenant thereto, and being a residential house, the income of which is chargeable under the head income from house property” (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 dote constructed, a residential house, then), instead of the capital gain being charged to income-tax as income of the previous year in which the transfer took place, it shall be dealt within accordance with the following provisions of this section, that is to say,–

(i) if the amount of the capital gain is greater than the cost of (the residential house) so purchased or constructed (hereafter in this section referred to as the new asset), the difference between the amount of the capital gain and the cost of the new asset shall be charged under section 45 as the income of the previous year; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase or construction, as the case may be, the cost shall be nil; or

(ii) if the amount of the capital gain is equal to or-less than the cost of the new asset the capital gain shall not be charged under section 45; and for the purpose of computing in respect of the new asset any capital gain arising from its transfer within a period of three years of its purchase or construction, as the case may be, the cost shall be reduced by the amount of the capital gain.

The amount of the capital gain which is not appropriated by the assessee towards the purchase of the new asset made within one year before the date on which the transfer of the original asset took place, or which is not utilised by him for the purchase or construction of the new asset before the date of furnishing the return of income under section 13Q. shall be deposited by him before furnishing such return (such deposit being made in any case not later than the due date applicable in the case of the assessee for furnishing the return of income under sub-section (1) of section 159 in an account in any such bank or institution as may be specified in, and utilised in accordance with, any scheme which the Central Government may, by notification in the Official Gazette, frame in this behalf and such return shall be accompanied by proof of such deposit, and, for the purposes of sub-section (1), the amount if any, already utillsed by the assessee for the purchase or construction of the new asset together with the amount so deposited shall be deemed to be the cost of the new asset :–

Provided that if the amount deposited under this sub-section is not utilised wholly or partly for purchase or construction of the new asset within the period specified in sub-section (1), then,–

(i) the amount not so utilised shall be charged under section 45 as the income of the previous year in which the period of three years from the date of the transfer of the original asset expires; and

(ii) the assessee shall be entitled to withdraw such amount in accordance with the scheme aforesaid. Explanation. (Omitted by the Finance Act, 1992, with effect from 1. 4. 1993.)

  1. Thus, the Assessee erred in not claiming ‘net capital gains’ (i.e. after deducting indexed cost of acquisition) and had instead disclosed gross sale consideration available for reinvestment under section 54. The same is recomputed as under :–

Re-Computation of Capital Gains

Sale Consideration (Rs.) 99,45,000

Indexed cost of acquisition

Year Particulars Original Cost Rs. Indexed Cost Rs.
1983-84 Land cost 26,5400 1,44,380
1985-86 Cost of construction of 1st Floor 2,35,200 11,17,642
1994-95 Cost of construction of 2nd Floor 3,02,400 7,37,903
5,64,100 19,99,925 (19,99,925)
Long term capital gains (eligible for reinvestment under section 54) 79,45,075
Reinvestment in new residential house 1,01,49,000
*Break-up is as under :–

*FY 2008-09 Land cost . . Rs. 71. 67 lacs

*FY 2008-09 Construction cost incurred . . Rs. 19. 25 lacs

*FY 2009-10 Construction cost incurred . . Rs. 10. 57 lacs

The Assessee seeks rectification of mistake by the Learned assessing officer in light of the above. It is settled law that the Assessee cannot be penalized for mistakes committed by his tax advisor.

  1. Legal Precedents
  2. It was laid down by the Hon’ble Supreme Court in Sanjeev Lal v. CIT (2014) 46 taxmann. com 300 ((SC))that under section 2(47)/54 “if an agreement to sell is entered into within the prescribed period, there is transfer of some rights in favour of the vendee. Fact that sale deed could not be executed within the time limit owing to supervening problem is not a bar for sec 54 exemption” -copy of case attached herewith. Further, as held In Oxford University Press v. CIT ((2001) 3 SCC 359)a purposive interpretation of the provisions of the Act should be given while considering a claim for exemption from tax and one can very well interpret the provisions of section 54 read with section 2(47) of the Act, i. e. definition of “transfer”, which would enable the appellants to get the benefit under section 54 of the Act
  3. In another related case, CIT v. Sambandam Udaykumar (Karnataka High court) (2012) 19 taxmann.com17 (Kar.)it was held that “Sec 54F is a beneficial provision for promoting the construction of residential house & requires to be construed liberally far achieving that purpose. The intention of the Legislature was to encourage investments in the acquisition of a residential house and completion of construction or occupation is not the requirement. “
  4. In another case, CIT v. Shahzada Begum (1988) 33 Taxman 311 (AP). states that “Section 54(1) of the Income Tax Act, 1961-Capital gains–profit on sale of property used for residence–Assessee sold her self-occupied property and paid a substantial sum cut of its sale proceeds for acquiring another house within one year of sale. though sale deed was registered only after period of one year from date of sale–Whether in view of fact that apart from payment of substantial purchase consideration, assessee also secured possession of house property purchased within specified period of one year, she was eligible for exemption under section 54(1) – Held, yes”
  5. In RI Sood v. ITO (1994) 49 TTJ 282 (Del ‘B’ Bench) : 1994 TaxPub(DT) 0223 (Del-Trib),it was held that for the purpose of section 54, the date of purchase could be taken to be the date on which the agreement for purchasing a new house property was obtained by the assessee, and the date of execution of the registration deed is not important.
  6. In ‘Sri Rajaram v. ITO (1986) 19 ITD 141 (Hyd-Trib) : 1986 TaxPub(DT) 1672 (Hyd-Trib), it was held that “The expression ‘purchase’ occurring in section 54 is not synonymous with ‘ownership’ or ‘transfer of legal title’ whereas in sections 22 and 45, which are the charging sections creating tax liability the words used are ‘owner’ and ‘transferor’ and they connote legal title”
  7. Reg. eligibility of claim under section 54 With respect to self-occupied residential house, CBDT Circular No. 538, dt. 13-7-1989reads as under :–

476, Whether capital gain arising from transfer of a self occupied residential house would be entitled to exemption.–1. Section 54 of the Income Tax Act provides for exemption in respect of capital gain arising from the transfer of a long-term capital asset, being a residential house, the income of which is chargeable under the head ‘income from house property’ if the conditions laid down in the said provision are fulfilled.

  1. Under section 23(2) of the Income Tax Act, as amended by the Finance Act, 1986, the annual value of one house in the occupation of the owner for purposes of his own residence is token as nil. A question has been raised whether capital gain arising from the transfer of such a house property would be entitled to exemption under section 54 of the Act.
  2. The ‘Question appears to have been raised because of the words italicised in para I above. As the annual value of a self-occupied house would betaken to be nil by virtue of section 23(2) of the Act, an assessing officer may take the plea that the income of such a house is not chargeable under the head ‘Income from house property’.
  3. The Board is of the view that such a construction of the aforesaid provision in section 54 of the Act is not correct. Income from a self-occupied residential house is chargeable under the head ‘Income from house property’ even though in certain circumstances such income may be computed at nil or at a negative figure by virtue of section 23(2) read with section 24 of the Act.
  4. Thus, a person shall be entitled to claim exemption under section 54 of the Act even in respect of a self- occupied residential house.

Circular; No. 538, dt. 13-7-1989.

In view of the above, I request you to kindly drop the purported reassessment proceedings since all the facts as stated above have been disclosed in the return and further there is no income which escaped assessment – both of which are essential pre-requisites of section 147″

7.2. The assessee also submitted a letter dated 1-12-2014 before the ITO, Ward-1(3) on change of jurisdiction from ITO Ward-4(1) to Ward-1(3) reiterating the submissions made earlier. From the above, it is evident that during the assessment proceedings, the assessee has furnished all the details and the entire information before the assessing officer. The assessee also explained the legal position of sale agreement, MoU and the claim for deduction under section 54 of the Act. From the facts of the case it is established that after analyzing the entire factual and the legal position, the assessing officer allowed the deduction under section 54 holding that the assessee is entitled for deduction. It is apparent from the record that the assessing officer has taken a conscious decision to allow the deduction under section 54 on the facts and circumstances explained by the assessee. As per law for invoking the jurisdiction under section 263, two conditions must be satisfied that is the assessment order proposed to be revised must be erroneous and prejudicial to the interest of the revenue. If any of the conditions are not satisfied, there is no case for invoking the jurisdiction under section 263. In the instant case, the assessing officer has collected the relevant information, verified the details, considered the legal position and held that the assessee is entitled for deduction under section 54 of the Act. In the submissions made before the assessing officer, the assessee has convinced the assessing officer that the date for reckoning the deduction under section 54 for transferring the property was 29-6-2008. Since the assessing officer has taken a conscious decision after verification of the complete information the and the same is one of the possible views as per law, the assessment order passed under section 143(3) read with section 147 cannot be held to be erroneous. Though prima facie, there appears to be some confusion with regard to the reckoning the date of transfer of the property, whether it is to be reckoned from the date of agreement or from the date of sale deed, on the set of facts both the views are possible thus it amounts to difference of opinion between the assessing officer and the Principal Commissioner, but cannot render the order erroneous. Since there is no error in the order passed by the assessing officer, we hold that the Principal Commissioner has incorrectly taken up the case for revision under section 263 and the same is unsustainable.

7.3. On merits also, this Tribunal has taken a decision that in order to claim the deduction under section 54, in the case of construction of residential houses the date of commencement of construction of house property is irrelevant and construction commenced even before the transfer of property makes the assessee entitled for deduction. As per section 54, there is a time limit for completion of construction, but there is no prescribed time for commencement of construction or for acquiring the property. This view is upheld by the Hon’ble Madras High Court in the case of C. Aryama Sundaram cited supra. Wherein, the Hon’ble High Court held as under :–

“19. The conditions precedent for exemption of capital gain from being charged to income tax are :–(i) The assessee should have purchased a residential house in India either one year before or two years after the date of transfer of the residential house which resulted in capital gain or alternatively constructed a new residential house in India within a period of three years from the date of the transfer of the residential property which resulted in the capital gain.

(ii) If the amount of capital gain is greater than the cost of the residential house so purchased or constructed, the difference between the amount of the capital gain and the cost of the new asset is to be charged under section 45 as the income of the previous year.

(iii) If the amount of the capital gain is equal to or less than the cost of the new residential house, the capital gain shall not be charged under section 45.

  1. what has to be adjusted and/or set off against the capital gain is, the cost of the residential house that is purchased or constructed. Section 54(1) of the said Act is specific and clear. It is the cost of the new residential house and not just the cost of construction of the new residential house, which is to be adjusted. The cost of the new residential house would necessarily include the cost of the lard the cost of materials used in the construction, the cost of labour and any other cost relatable to the acquisition and/or construction of the residential house.
  2. A reading of section 54(1) makes it amply clear that capital gain is to be adjusted against the cost of new residential house. The condition precedent for such adjustment is that the new residential house should have been purchased within one year before or two years after the transfer of the residential house, which resulted in the capital gain or alternatively, a new residential house has been constructed in India, within three years from the date of the transfer, which resulted in the capital gain. The said section does not exclude the cost of land from the cost of residential house.
  3. It is axiomatic that section 54(1) of the said Act does not contemplate that the same money received from the sale of a residential house should be used in the acquisition of new residential house. Had it been the intention of the Legislature that the very same money that had been received as consideration for transfer of a residential house should be used for acquisition of the new asset section 54(1) would not have allowed adjustment and/or exemption in respect of property purchased one year prior to the transfer, which gave rise to the capital gain or may be in the alternative have expressly made the exemption in case of prior purchase, subject to purchase from any advance that might have been received for the transfer of the residential house which resulted in the capital gain. “
  4. At the cost of repetition, it it reiterated that exemption of capital gain from being charged to income tax as income of the previous year is attracted when another residential house has been purchased within a period of one year before or two years after the date of transfer or has been constructed within a period of three years after the date of transfer of the residential house. It is not in dispute that the new residential house has been constructed within the time stipulated in section 54(1) of the said Act. It is not a requisite of section 54 that construction could not have commenced prior to the date of transfer of the asset resulting in capital gain. If the amount of capital gain is greater than the cost of the new house, the difference between the amount of capital gain and the cost of the new asset is to be charged under section 45 as the income of the previous year. If the amount of capital gain is equal to or less than the cost of the new residential house, including the land on which the residential house is constructed, the capital gain is not to be charged under section 45 of the said Act.

7.4. The assessee is entitled to claim the deduction under section 54 from the capital gains resulting on transfer of residential property for purchase of new house or for construction of new residential house. In case of purchase of new residential house the time line is to be acquired before one year from the date of sale or within two years after the sale of residential house. In case of construction, it should be completed within three years from the date of transfer of property. In the assessee’s case she has constructed new residential house. The assessee has acquired the land prior to the sale of property and completed the construction within the time limit allowed under section 54 of the Act. The intention of the legislature for giving the benefit is to encourage housing in the country. Since the assessee has acquired the property and completed the construction within the period of limitation prescribed by the Act, we hold that the assessee’s case is squarely covered by the decision of Hon’ble Madras High Court and the decision of the coordinate bench of this tribunal in the case of Dy. CITr,Circle-2(1) v. Dr. Chalasani Mallikarjuna Rao supra. Accordingly, we hold that the assessment passed by the assessing officer under section 147 read with section 143(3) dated 27-3-2015 is neither erroneous nor prejudicial to the interest of the revenue, hence, we cancel the order passed by the learned Principal Commissioner under section 263 of the Act and allow the appeal of the assessee.

7.5. Since we have adjudicated the issue on the ground of jurisdiction as well as on merits, we consider it is not necessary to adjudicate other grounds raised by the assessee such as non service of the impugned assessment order and the non-service of the order under section 263 within the reasonable time. Accordingly, the appeal of the assessee is allowed.

  1. In the result, the appeal of the assessee is allowed.

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