Minaxi Mahesh Pawani (Deceased) v. ITO (IT) (2024)113 ITR 38 (SN)(Mum)(Trib)

S. 54F : Capital gains-Investment in a residential house-Allotment letter-Flat under construction-Date of issue of allotment letter more than 36 months-Long term capital gains-No bar on appellate authorities to entertain claim-Directed to allow deduction after verification. [S. 2(29A), 45, 139]

Held that by the letter of allotment issued by the builder to the assessee on February 15, 2010 a right to own the flat as identified by the assessee and builder in the project to be undertaken for construction had accrued on the assessee. The right which accrued to the assessee was the booking right, i. e., the right to purchase the flat and obtain title. The terms and conditions from the letter of allotment dated February 15, 2010 were subsequently recorded elaborately in the agreement to sell registered on May 13, 2014. The assessee had not defaulted on the terms and conditions of the letter of allotment. The assessee had made all the payments as required under the letter of allotment which had been duly acknowledged in the subsequent registration of the agreement to sell. The holding period should be computed from the date issue of the allotment letter. Once this was considered, the holding period was more than 36 months and consequently the right to own the property transferred by the assessee would be a long-term capital asset in the hands of the assessee and the gains on transfer thereof would be taxable in the hands of the assessee as long-term capital gains. The assessee is  eligible to claim deduction under section 54F for the investment made by her in the other flat by fulfilling the requirements contained in section 54F.For the limited purpose of verification, the claim to deduction under section 54F is  remanded to the Assessing Officer for verification.   (AY.2016-17)

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