MRS. BERTHA T. ALMEIDA, MUMBAI V. INCOME TAX OFFICER, 24(1)(3), MUMBAI

ITA 6546/MUM/2008

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55235 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 29-08-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 11-11-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P C MOURYA
• Assessee Lawyers: HARISH MOTHIWALLA
• Keywords: Deduction for capital gain; Capital asset; Question of law; Cost of acquisition; Reassessment proceedings; Capital Gains
• Section: 54F; 54EC; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIB UNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI VIJAY PAL RAO, JM ITA NO.6546/MUM/2008 : ASST.YEAR 2001-2002 MRS.BERTHA T.ALMEIDA B-107, DHEERAJ KIRTI EVERSHINE NAGAR, MALAD (WEST) MUMBAI 400 064. PAN : ACYPA2915Q. VS. THE INCOME TAX OFFICER WARD 24(1)(3) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI HARISH MOTHIWALLA RESPONDENT BY : SHRI P.C.MOURYA DATE OF HEARING : 29.08.2011 DATE OF PRONOUNCEMENT :09.09.2011 O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 11.09.2008 IN RELATION TO THE ASSESSMENT YEAR 2001-2002. 2. THE LEARNED COUNSEL FOR THE ASSESSEE FILED APPLI CATION FOR ADMISSION OF THE FOLLOWING ADDITIONAL GROUND READING AS UNDER :- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) XXIV, MUMBAI, ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER IN RE SPECT OF CHARGING RECEIPT OF RS.20,00,000 AND NOTIONAL MARKET VALUE O F FLAT AMOUNTING TO RS.19,06,800 TO BE RECEIVED FROM DEVELOPERS UNDER T HE HEAD CAPITAL GAINS, PARTICULARLY WHEN, THE DEVELOPER HAS NOT FU LFILLED THE CONDITIONS STATED IN AGREEMENT FOR DEVELOPMENT DATE D NOVEMBER 11, 1999 AND THUS NOT COMPLIED WITH REQUIREMENTS OF SEC TION 53A OF TRANSFER OF PROPERTY ACT AND THEREFORE THE TRANSACT ION IS NOT COVERED BY SECTION 2(47)(V) OF THE INCOME TAX ACT, 1961. 3. IN SUPPORT OF THE ADMISSION OF THIS ADDITIONAL G ROUND, THE LEARNED A.R. SUBMITTED THAT IT INVOLVED ONLY ADJUDICATION OF SUB STANTIAL QUESTION OF LAW AND NO ITA NO.6546/MUM/2008 MRS.BERTHA T.ALMEIDA. 2 FRESH FACTS WERE REQUIRED TO BE EXAMINED. THE LEARN ED DEPARTMENTAL REPRESENTATIVE OPPOSED THE ADMISSION OF ADDITIONAL GROUND. KEEPING INTO CONSIDERATION THE ENTIRE CONSPECTUS OF THE FACTS AND CIRCUMSTANCES OF THE CA SE AND THE ADDITIONAL GROUND RAISED BEFORE US WE ARE CONVINCED THAT ITS ADJUDICA TION DOES NOT REQUIRE ANY FRESH INVESTIGATION OF FACTS AND INVOLVES SUBSTANTIAL QUE STION OF LAW. RESPECTFULLY FOLLOWING THE JUDGEMENT OF THE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER COMPANY LTD. VS. CIT [(1998) 229 ITR 383 (SC) ] WE ADMIT THIS ADDITIONAL GROUND FOR DISPOSAL ON MERITS. 4. THE FIRST GROUND ABOUT THE REOPENING OF ASSESSME NT U/S 147/148 WAS NOT PRESSED. THE SAME IS, THEREFORE, DISMISSED. 5. GROUNDS NOS. 2 AND 3 AND ALSO THE ADDITIONAL GRO UND INVOLVE COMMON ISSUE. THE FACTS OF THE CASE ARE THAT DURING THE COURSE OF REASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2004-2005 IT WAS NOTICED BY THE A.O . THAT THE ASSESSEE CLAIMED EXEMPTION U/S 54F IN RESPECT OF TWO PROPERTIES NAME LY A FLAT TO BE GIVEN BY BUILDER/DEVELOPER AND A FLAT PURCHASED FROM PRITHVI BUILDERS. AS ONLY ONE PROPERTY IS ELIGIBLE FOR EXEMPTION U/S 54F, THE ASSESSING OF FICER REOPENED THE ASSESSMENT BY OPINING THAT EXEMPTION U/S 54F WAS CLAIMED IN EX CESS. NOTICE U/S 148 WAS ISSUED. THE ASSESSEES WORKING OF LONG TERM CAPITAL GAIN WAS NOTED AS UNDER:- CONSIDERATION RECEIVED FROM KARASHA CONSTRUCTION P. LTD. AND GRACELAND CONSTRUCTION P. LTD. ON SALE OF AGRICULTURAL LAND 2000000 ADD : COST OF FLAT GIVEN BY KARASHA CONSTRUCTION P. LTD. AND GRACELAND CONSTRUCTION P. LTD. AS A PART O F TOTAL CONSIDERATION 1906800 TOTAL CONSIDERATION 3906800 LESS : INDEXED COST OF ACQUISITION -1059993 CAPITAL GAIN 2846807 REINVESTMENT IN FLAT GIVEN BY KARASHA CONSTRUCTION P. LTD. AND GRACELAND CONSTRUCTION P. LTD. 1906800 FLAT PURCHASED FROM PRITHVI BUILDER IN DHEERAJ 1149 090 ITA NO.6546/MUM/2008 MRS.BERTHA T.ALMEIDA. 3 KIRTI BLDG. LESS : CAPITAL GAIN EXEMPTION U/S 54F (2846807 X 3055890 / 3906800) 2226766 LESS : CAPITAL GAIN EXEMPT U/S 54EC (INVESTMENT IN CAPITAL GAIN BONDS OF NATIONAL HIGHWAY AUTHORITY OF INDIA) 700000 TAXABLE CAPITAL GAIN NIL 6. THE ASSESSEE WAS CALLED UPON TO EXPLAIN AS TO WH Y EXEMPTION U/S 54F SHOULD NOT BE RESTRICTED TO INVESTMENT IN ONE RESIDENTIAL HOUSE AS AGAINST TWO CLAIMED BY THE ASSESSEE. THE ASSESSEE STATED THAT SHE HAD NOT RECEIVED POSSESSION OF FLAT FROM KARASHA CONSTRUCTION PRIVATE LIMITED AND GRACELAND CONSTRUCTION PRIVATE LIMITED. CONSIDERING THESE FACTS, THE ASSESSING OFFICER HEL D THAT THE EXEMPTION U/S 54F WAS TO BE GRANTED ONLY IN RESPECT OF FLAT FROM PRITHVI BUILDERS. AS AGAINST THE NIL CAPITAL GAIN DECLARED BY THE ASSESSEE, THE A.O. DE TERMINED LONG TERM CAPITAL GAIN AT RS.13,09,490. THE ASSESSEE WAS NOT SUCCESSFUL BE FORE THE LEARNED CIT(A) AS WELL. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE LEARNED COUNSEL FOR THE ASSESSEE VEHEME NTLY CONTENDED THAT THE ASSESSEE HELD 10% SHARE IN CERTAIN LAND WHICH WAS A GREED TO BE TRANSFERRED TO KARASHA CONSTRUCTION PRIVATE LIMITED AND GRACELAND CONSTRUCTION PRIVATE LIMITED. IT WAS SUBMITTED THAT THE ASSESSEE RECEIVED ONLY A SUM OF RS.20 LAKH FROM THIS BUILDER WHO HAD ALSO UNDERTAKEN TO ALLOT ONE SELF-C ONTAINED FLAT ON ANY FLOOR OF THE CHOICE OF THE ASSESSEE IN THE BUILDING TO BE CONSTR UCTED BY THE DEVELOPER ON THE SAID PROPERTY WHICH WAS SUBJECT MATTER OF TRANSFER. HE S TATED THAT THE ASSESSEE DID NOT ACQUIRE ANY FLAT AS AGREED UPON AND HENCE THE VALUE ASSIGNED BY THE ASSESSEE AT RS.19,06,800 AT THE TIME OF FILING RETURN SHOULD BE EXCLUDED AS IT WAS A MISTAKE ON THE PART OF THE ASSESSEE TO INCLUDE THE SAID SUM OF RS.19.06 LAKH IN ITS INCOME WHICH WAS NOT OTHERWISE INCLUDIBLE AS PER LAW. IT W AS ALSO ARGUED THAT THERE WAS NO TRANSFER OF THE LAND BY THE ASSESSEE TO THE BUILDER S FOR THE REASON THAT THE DISPUTE ERUPTED FROM THEIR SIDE BY NOT ALLOTTING THE FLAT A S AGREED UPON. HE RELIED ON THE ITA NO.6546/MUM/2008 MRS.BERTHA T.ALMEIDA. 4 CASE OF GENERAL GLASS CO. (P) LTD. VS. DCIT [(2007) 108 TTJ (MUM.) 854] TO CONTEND THAT THE TRANSACTION WOULD NOT FALL WITHIN THE DOMAIN OF PROCEEDINGS U/S 2(47) OF THE ACT. 8. WE ARE NOT CONVINCED WITH THE SUBMISSIONS ADVANC ED ON BEHALF OF THE ASSESSEE. THERE IS NO DISPUTE ON THE FACT THAT THE ASSESSEE HOLDING 10% OWNERSHIP RIGHT IN CERTAIN PIECE OF LAND AGREED TO TRANSFER I TS SHARE ALONG WITH OTHER CO-OWNERS TO THE SAID LAND TO KARASHA CONSTRUCTION PRIVATE LI MITED AND GRACELAND CONSTRUCTION PRIVATE LIMITED BY WAY OF TWO SEPARATE AGREEMENTS DATED 11.11.1999, COPIES PLACED ON PAGES 11 AND 31 OF THE PAPER BOOK. AS PER THESE AGREEMENTS THE ASSESSEE RECEIVED A SUM OF RS.20 LAKH AND ALSO BECA ME ENTITLED TO ALLOTMENT OF ONE FLAT IN THE BUILDING TO BE CONSTRUCTED BY THE DEVEL OPER ON THE LAND TRANSFERRED BY THE ASSESSEE WITH OTHER CO-OWNERS. NOW IT HAS BEEN ARG UED THAT SINCE THE FLAT HAS NOT BEEN ACTUALLY ALLOTTED TO THE ASSESSEE, FIRSTLY THE TRANSACTION SHOULD BE HELD AS NOT AMOUNTING TO TRANSFER AND IF AT ALL IT IS TO BE CON SIDERED AS A TRANSFER THEN THE CONSIDERATION ON ACCOUNT OF VALUATION OF FLAT AT RS .19.06 LAKH BE EXCLUDED. 9. SECTION 2(47) DEFINES `TRANSFER IN RELATION O F CAPITAL ASSET TO MEAN SALE, EXCHANGE OR RELINQUISHMENT OF THE ASSETS ETC. CLAUS E (V) OF SUB-SECTION 47 OF SECTION 2 PROVIDES THAT ANY TRANSACTION INVOLVING T HE ALLOWING OF THE POSSESSION OF ANY IMMOVABLE PROPERTY TO BE TAKEN OR RETAINED IN P ART PERFORMANCE OF A CONTACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSF ER OF PROPERTY ACT, 1882 SHALL ALSO BE CONSIDERED AS TRANSFER. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. PODAR CEMENT PVT. LTD. [(1997) 226 ITR 625 (SC)] HAS HELD THAT OWNER IS A PERSON WHO IS ENTITLED TO RECEIVE INCOME FROM THE PROPERTY IN HIS OWN RIGHT AND THE REQUIREMENT OF REGISTRATION OF SALE DEED IN THE CON TEXT OF SECTION 22 IS NOT WARRANTED. AGAIN THE HONBLE SUPREME COURT IN MYSORE MINERALS LTD. VS. CIT [(1999) 239 ITR 775 (SC)] HAS HELD THAT ANYONE IN POSSESSION OF PROPERTY IN HIS OWN RIGHT EXERCISING SUCH DOMINION OVER THE PROPERT Y AS WOULD ENABLE OTHERS BEING EXCLUDED THEREFROM AND HAVING THE RIGHT TO USE AND OCCUPY THE PROPERTY IN HIS OWN ITA NO.6546/MUM/2008 MRS.BERTHA T.ALMEIDA. 5 RIGHT, WOULD BE THE OWNER OF THE BUILDING FOR THE PURPOSE OF SECTION 32(1) THOUGH A FORMAL DEED OF TITLE MAY NOT HAVE BEEN EXECUTED AND REGISTERED. THESE TWO JUDGEMENTS CLEARLY DEMONSTRATE THAT EVEN IF LEGAL T ITLE HAS NOT PASSED TO THE TRANSFEREE, THE TRANSACTION SHALL STILL BE REGARDED AS THE TRANSFER WHERE THE PROPERTY IS HANDED OVER IN PART PERFORMANCE OF THE AGREEMENT . IT IS THE PRESCRIPTION OF SECTION 53A OF THE TRANSFER OF PROPERTY ACT, WHICH HAS BEEN INCLUDED IN SECTION 2(47) DEFINING THE CONCEPT OF `TRANSFER. 10. COMING TO THE FACTS OF THE INSTANT CASE IT IS CLEAR THAT SINCE THE ASSESSEE ENTERED INTO AGREEMENT WITH THE DEVELOPERS FOR TRAN SFER OF THE PROPERTY, HANDED OVER THE POSSESSION WHO IN THE MEAN TIME CONSTRUCTE D FLATS THEREON AND ALSO RECEIVED CONSIDERATION OF RS.20 LAKH IN CASH, IT IS DIFFICULT TO HOLD THAT THERE WAS NO TRANSFER U/S 2(47). IT CLEARLY AMOUNTED TO TRANSFE R GIVING RAISE TO CHARGE OF CAPITAL GAIN. 11. SECTION 45 PROVIDES THAT ANY PROFIT OR GAINS AR ISING FROM THE TRANSFER OF CAPITAL ASSET EFFECTED IN THE PREVIOUS YEAR SHALL, SUBJECT TO OTHER PROVISIONS BE CHARGEABLE TO INCOME-TAX UNDER THE HEAD `CAPITAL GA INS AND SHALL BE DEEMED TO BE THE INCOME OF THE PREVIOUS YEAR IN WHICH THE TRANSF ER TOOK PLACE. THIS SECTION CLEARLY EXPLAINS THAT INCOME UNDER THE HEAD `CAPIT AL GAINS IS CHARGEABLE TO TAX IN THE YEAR IN WHICH THE TRANSFER TAKES PLACE. FURT HER SECTION 48 DEALS WITH THE MODE OF COMPUTATION OF INCOME CHARGEABLE UNDER THE HEAD CAPITAL GAINS. IT PROVIDES THAT THE INCOME UNDER THIS HEAD SHALL BE C OMPUTED, BY DEDUCTING FROM THE FULL VALUE OF THE CONSIDERATION RECEIVED OR ACCRUI NG AS A RESULT OF `TRANSFER OF THE CAPITAL ASSET, THE AMOUNT OF EXPENDITURE INCURRED W HOLLY AND EXCLUSIVELY IN CONNECTION WITH SUCH TRANSFER AND ALSO THE COST OF ACQUISITION OF THE ASSET TOGETHER WITH THE COST OF ANY IMPROVEMENT. THE MANDATE OF SE CTION 48 IN TERMS OF FULL VALUE OF CONSIDERATION IS CRYSTAL CLEAR WHICH NOT ONLY EN COMPASSES CONSIDERATION RECEIVED BUT ALSO WHICH ACCRUES AS A RESULT OF THE TRANSFER OF THE CAPITAL ASSET. IF A PARTICULAR AMOUNT HAS ACCRUED TO THE ASSESSEE AS A RESULT OF TRANSFER OF THE CAPITAL ITA NO.6546/MUM/2008 MRS.BERTHA T.ALMEIDA. 6 ASSET, THAT SHALL BE INCLUDED IN THE FULL VALUE OF CONSIDERATION, EVEN IF IT IS NOT REALIZED WITHIN THE YEAR OF TRANSFER. WE ARE CONFRO NTED WITH A SITUATION IN WHICH THE `FULL VALUE OF CONSIDERATION AS PER THESE AGREEMEN T COMPRISES OF TWO PARTS, NAMELY RS.20 LAKH IN CASH AND RIGHT TO ALLOTMENT OF ONE FL AT ADMEASURING 700 SQ. FT. (CARPET AREA) IN THE BUILDING TO THE CONSTRUCTED BY THE DEV ELOPER ON THE LAND TRANSFERRED BY THE ASSESSEE. AS SUCH THE VALUE OF THIS FLAT SHALL CONSTITUTE AN INTEGRAL PART OF THE `FULL VALUE OF CONSIDERATION. THERE IS NO RATIONA LE IN ARGUING THAT THE VALUE OF THE FLAT SHOULD BE EXCLUDED SIMPLY FOR THE REASON THAT IT HAS NOT BEEN RECEIVED SO FAR. AS THE AMOUNT RECEIVED OR ACCRUING AS A RESULT OF T RANSFER OF THE CAPITAL ASSET CONSTITUTES FULL VALUE OF CONSIDERATION U/S 48, THE RE IS NO LOGIC IN CLAIMING THAT ONLY THE AMOUNT RECEIVED SHOULD BE INCLUDED AND THE VALU E OF FLAT SHOULD BE EXCLUDED. THE DECISION RELIED UPON BY THE LEARNED A.R. IN THE CASE OF GENERAL GLASS CO. (P) LTD. (SUPRA) IS CLEARLY DISTINGUISHABLE AS IN THAT THE CASE THE TRANSFEREE WAS NOT WILLING TO PERFORM HIS OBLIGATIONS UNDER THE CONTRA CT. ON THE CONTRARY WE ARE CONFRONTED WITH A SITUATION IN WHICH THE TRANSFEREE HAS TAKEN OVER THE POSSESSION, CONSTRUCTED THE BUILDING AND PAID A SUM OF RS.20 LA KH TO THE ASSESSEE IN CASH AND HAS ALSO UNDERTAKEN TO ALLOT A FLAT IN THE SAID BUI LDING. AS SUCH THIS CONTENTION RAISED ON BEHALF OF THE ASSESSEE THROUGH THE ADDITI ONAL GROUND THAT THE TRANSFER IS NOT COVERED U/S 2(47)(V) IS SANS MERIT AND DESERVES TO BE REJECTED. WE HOLD ACCORDINGLY. 12. THERE IS ONE MORE INTERESTING ASPECT OF THE CASE. IT HAS BEEN THE CONSISTENT STAND OF THE ASSESSEE THAT TILL DATE THE FLAT HAS N OT BEEN ALLOTTED BY THE BUILDER TO THE ASSESSEE. DURING THE COURSE OF ARGUMENTS IT CAME TO LIGHT THAT THE ASSESSEE RECEIVED A SUM OF RS.21.00 LAC FROM THE BUILDER ON 24.12.200 3, OTHER THAN RS.20.00 LAC AS AGREED UPON AS PER AGREEMENT. ON A QUERY IT WAS ST ATED THAT THE SAID SUM OF RS. 21.00 LAC DID NOT REPRESENT CONSIDERATION IN LIEU O F FLAT BUT WAS IN THE NATURE OF INTEREST FROM THE BUILDERS FOR NOT ALLOTTING THE FL AT. ON A SPECIFIC QUERY IT WAS STATED THAT THE ASSESSEE INCLUDED SUCH INTEREST INCOME OF RS.21.00 LAC IN HER TOTAL INCOME ITA NO.6546/MUM/2008 MRS.BERTHA T.ALMEIDA. 7 FOR THE A.Y. 2004-05. THE BENCH DIRECTED TO FILE TH E COMPUTATION OF TOTAL INCOME, COPY OF RETURN OF INCOME AND OTHER RELATED DOCUMENT S FOR THE A.Y. 2004-05. ON PERUSAL OF SUCH DOCUMENTS, IT IS NOTICED THAT THE SUM OF RS.21.00 LAC HAS BEEN CREDITED TO THE CAPITAL ACCOUNT OF THE ASSESSEE WIT HOUT INCLUDING IT IN THE TOTAL INCOME. THE RETURN FOR THE A.Y. 2004-05 HAS BEEN FI LED WITH TOTAL INCOME OF RS.1,83,337 (AFTER CLAIMING DEDUCTIONS OF RS.22.000 U/SS 80D AND 80L) WHICH MAINLY COMPRISES OF INTEREST INCOME FROM BANKS ETC. TOTALING RS.1,84,408. THUS IT IS EVIDENT THAT THE SAID RECEIPT OF RS.21.00 LAC HA S NOT BEEN DISCLOSED AS INTEREST INCOME. IF THAT IS THE POSITION, THEN THERE REMAINS NO DOUBT THAT THE SAID SUM REPRESENTED THE CONSIDERATION IN LIEU OF FLAT. IT IS NOT OPEN TO THE ASSESSEE TO BLOW HOT AND COLD IN THE SAME BREATH. ON ONE HAND, WHEN THE QUESTION IS OF COMPUTATION OF CAPITAL GAIN, IT HAS BEEN CLAIMED THAT THE SUM OF RS.21.00 LACS RECEIVED FROM THE BUILDER WAS INTEREST INCOME AND HENCE NOT PART O F FULL VALUE OF CONSIDERATION TOWARDS FLAT, AND ON THE OTHER HAND, IF IT IS INTER EST INCOME, THEN IT IS NOT OFFERED CLAIMING IT AS A RECEIPT FROM BUILDER. AS SUCH THE CONTENTION THAT THE ASSESSEE DID NOT RECEIVE ANY FLAT AS AGREED UPON AT THE TIME OF TRANSFER OF PLOT, IS DEVOID OF ANY MERITS BECAUSE THE ASSESSEE DID RECEIVE CONSIDERAT ION IN LIEU OF IT AT RS.21.00 LAC IN A LATER YEAR. 13. ONE MORE ARGUMENT WAS RAISED BY THE LEA RNED A.R. THAT IF AT ALL THE VALUE OF FLAT IS TO BE INCLUDED IN THE FULL VALUE OF CONS IDERATION THEN SUCH COST OF FLAT AT RS.4,20,000 SHOULD BE INCLUDED INSTEAD OF RS.19.06 LAKH. IT IS NOTICED THAT THE ASSESSEE HERSELF VALUED THE FLAT AT RS.19.06 LAKH W HILE FILING RETURN. THE LEARNED A.R. CONTENDED THAT SUCH VALUE WAS TAKEN ON THE BAS IS OF SOME GOVERNMENT RECORD. NOW IT IS IMPRESSED UPON THAT INSTEAD OF R S.19.06 LAKH, ONLY RS.4.20 LAKH WAS INCLUDIBLE, WHICH IS THE COST OF CONSTRUCTION. THE REASON ADVANCED FOR SUCH ARGUMENT WAS THAT THE VALUE OF LAND SHOULD NOT BE I NCLUDED AS IT IS STILL CONTINUES WITH THE ASSESSEE. WE DO NOT FIND ANY FORCE IN THIS CONTENTION AS WELL FOR THE REASON THAT THE SAID LAND HAS ALREADY BEEN TRANSFERRED IN TERMS OF SECTION 2(47)(V) AND THE ITA NO.6546/MUM/2008 MRS.BERTHA T.ALMEIDA. 8 BUILDER HAS CONSTRUCTED A BUILDING THEREON. NOW THE ASSESSEE CANNOT CONTEND THAT THE LAND IS STILL IN ITS OCCUPATION. IN SUCH A CASE THE ARGUMENT THAT ONLY THE COST OF CONSTRUCTION AT RS.4.20 LAKH SHOULD BE INCLUDED IS DEVOID OF ANY MERITS. WE, THEREFORE, HOLD THAT THE SUM OF RS.19.06 LAKH AS VA LUE OF FLAT ADOPTED BY THE ASSESSEE IS RIGHT AND DOES NOT WARRANT ANY INTERFER ENCE. IT IS A DIFFERENT MATTER THAT THE ASSESSEE RECEIVED A SUM OF RS.21.00 LAKH FROM T HE BUILDER IN LIEU OF THE FLAT AND THE DISPUTE HAS BEEN STATED TO BE STILL GOING ON. AS IT WAS NOT THE CASE OF THE AO THAT ANY THE VALUE OF FLAT WAS HIGHER THAN RS.19.06 LAKHS, WE DESIST TO ENTER INTO THIS CONTROVERSY FOR THE FIRST TIME. 14. FURTHER SINCE EXEMPTION U/S 54F IS AVAIL ABLE ONLY IN RESPECT OF ONE FLAT, IN OUR CONSIDERED OPINION THE AUTHORITIES BELOW WERE J USTIFIED IN GRANTING THIS RELIEF ONLY IN RESPECT OF ONE FLAT, WHICH WAS ACQUIRED BY THE ASSESSEE IN THIS YEAR. WE, THEREFORE, UPHOLD THE IMPUGNED ORDER. 15. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 09 TH DAY OF SEPTEMBER, 2011. SD/- SD/- (VIJAY PAL RAO) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 09 TH SEPTEMBER, 2011. DEVDAS*` COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - XXIV, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.